Chemical Facility Security News

There are currently three rules recently published in the Federal Register dealing with the security and safety of rail transportation of various hazardous chemicals. The comment period for all three rules has ended. Generally speaking the comments made on each of these rules are posted on the Regulations.gov web site. The last review was posted on 6-16-08 (see: "Comments on Rail Security and Safety Rules – 6-06-08 Cont").

Comments were to be submitted by June 16, 2008. Comments were received from:

The Honorable John Cornyn

• Senator Cornyn (TX) suggests that the CPC-1187 standard be included in the rule with grandfathering provisions.

The Honorable Ralph M. Hall

• Congressman Hall (R, TX) suggests that the CPC-1187 standard be included in the rule with grandfathering provisions.

The Honorable Kay Granger

• Congresswoman Granger (R, TX) suggest that the CPC-1187 standard be included in the rule with grandfathering provisions.

Solvay Chemicals

• Solvay is a manufacturer and shipper of anhydrous hydrogen fluoride (AHF).
• Solvay notes that the sandwich design proposed in the rule would make it difficult to inspect the shell for corrosion, a critical failure mode for AHF tank cars. Solvay strongly opposes this design for AHF tank cars.
• Solvay expresses their concern that they are not able to modernize their AHF fleet because of the phase out provisions of the rule. By the time the first time new standard production car becomes available over half of Solvay’s fleet will be out of date and out of service.

DOT/FRA posted information from public meetings held on the rule. The documents posted are lengthy (100+ pages), too lengthy to review in detail for this blog. The meetings were held on the following dates:

May 14, 2008

• Meeting dealt with issues surrounding the shipment of chlorine
• Prepared statements were received from:

• The Chlorine Institute,
• PPG,
• U.S. Magnesium,
• OxyChem, and

• Dow Chemical
• Also represented at the meeting were:
• Union Tank
• Association of American Railroads
• American Chemistry Council

May 15, 2008

• Meeting dealt with issues surrounding the shipment of anhydrous ammonia.
• Prepared statements were received from:

• TFI
• CF Industries
• Agrium Wholesale
• PotashCorp
• Terra Nitrogen
• J.R. Simplot Company
• Specialty Process Consulting
• Also represented at the meeting were:
• Transport Canada
• Union Pacific

May 28, 2008

• The morning meeting dealt with issues surrounding PIH chemical other than chlorine and anhydrous ammonia.
• The afternoon session dealt with railroad specific issues with the rule.
• Prepared statements were received from:
• E. I. Du Pont de Nemours and Company
• Honeywell International
• Solvay Chemicals, Inc.,
• Arkema
• James Connelly
• Association of American Railroads
• Also represented at the meeting were:
• Transport Canada
• PPG Industries
• Union Tank Car
• Lionel Frissell Industries
• AIR
• RAI Tank Car Safety Research Project

May 29, 2008

• This final meeting provided a forum for general comments on the rule.
• Prepared statements were received from:
• Association of American Railroads
• The Chlorine Institute
• American Chemistry Council
• American Association for Justice

Comments were to be submitted by May 16, 2008. There were no new comments posted since my blog of 5-28-08.

Comments are to be submitted by June 16, 2008. The following comments were submitted:

Association of American Railroads

• The AAR believes that the information in the route selection analysis should be restricted to a small number of agency enforcement personnel with a need to know.

The Dow Chemical Company

• Dow believes that the shipper needs to be consulted during the process where the FRA reviews a railroads appeal of a notification of deficiencies in a hazmat route selection.
• Dow believes that FRA should not restrict the statutory appeal rights of shippers aggrieved by an FRA routing decision

Mayo Clinic

• The Mayo Clinic is located immediately adjacent to the DM&E rail line.
• The Mayo Clinic believes that the FRA should be aggressive in review route selections to be able to make a determination that the route selected has the least overall safety and security risks.
• The Mayo Clinic believes that the rule should include provisions for local jurisdictions to request an FRA review of a specific route selection.
• The Mayo Clinic believes that local jurisdictions should be included in the notification process when the FRA conducts a review of a route selection decision.

The comment period for all three proposed rules is now closed. The FRA and PHMSA now begin the often lengthy process of revising theirrules to reflect the facts provided in the comments or justifying why they intend to overlook the opinions provided.

In the case of the PIH Tank Car rule this deliberative period will exacerbate the already poor state of affairs associated with the lack of a defined means for updating the aging fleet of PIH tank cars. The proposed rule has effectively stopped the design and production of new railcars.

As cars continue to reach their mandatory retirement dates they will be removed from service without available replacements. This may be a good time to have an economic downturn, reducing the number of shipments required of PIH chemicals. Otherwise shippers would be forced to ship more of these chemicals by road. That would only compound the problems that currently exist in the trucking industry.

It is interesting to note that the three congressional comments seen in this blog show a complete lack of understanding about the relationship between AAR and the FRA. The AAR is not the "FRA’s standard setting organization". The CPC-1187 standard developed by the AAR is not an FRA standard or even a proposed FRA standard. It is an industry standard that exceeds the current requirements of the FRA for the construction of a PIH railcar.

The problem with the CPC-1187 standard is that it is embarrassing to the FRA to have a readily (read currently) achievable improved-safety standard available while the government is still trying to get its design act together. The typical ‘not invented here’ reaction prevented the FRA and PHMSA from allowing the CPC-1187 standard cars from being grandfathered in to avoid the phase out schedule included in the current rule.

The inclusion of the Mayo Clinic in the list of commenters on the proposed rule on establishing an appeal process for the FRA overturning a route selection appears to be unusual. Readers of this blog (see: "Hazmat Rail Routes and the Mayo Clinic") will remember that this is not the first time that the Clinic has involved itself in the railroad rule-making process.

Actually, I expected a whole host of local government agencies and NGO’s to chime in with comments like those that the Mayo Clinic submitted. In many ways it is a shame that a ‘mere’ hospital has to be the voice for this set of views. While federal supremacy in this area of regulation is long standing and well documented, it is somewhat disappointing not to hear the voices of Washington, Baltimore and Contra Costa County chiming in on this issue.

The Mayo Clinic arguments are well thought out and reasonably presented. The FRA is going to have to ignore them, unfortunately. Acceding to the suggestions presented by the Mayo Clinic would make an already unworkable route selection rule a complete administrative nightmare in trying to identify, contact, and listen to the arguments of all of the jurisdictions along a questioned route.

Allowing local jurisdictions to petition to review a route selection decision would completely paralyze the FRA in paperwork and hearings. Legitimate reviews would never get initiated by the FRA due to the time and effort spent responding to jurisdictional appeals.

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