Hazardous materials are transported daily across the United States in huge volumes via rail. Before transport and at transfer points along the way, this dangerous cargo is often left sitting unguarded in factory lots and rail yards in major U.S. cities, creating a potential risk to homeland security. Would-be terrorists could, for example, attach homemade bombs to tank car hulls. The resulting explosions would release clouds of toxic gases and kill or sicken tens of thousands of people, depending on the amount of material released and the population density in the vicinity.

With that scenario in mind, federal agencies late last year issued a pair of new rules governing hazmat transport by rail. One rule, from the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA), outlines a plan for risk-based hazmat routing. Another rule, from the Transportation Security Administration (TSA), dictates steps for ensuring both secure custody of rail cars when stationary and location-tracking of cars while in transit. The new rules’ functionality and effectiveness in reducing risk remain matters of debate as rail carriers set out to comply.

Both rules preempt all applicable state and local requirements—such as a law the District of Columbia passed to prohibit rail transport of hazardous cargo within 2.2 miles of the Capitol. That gives the railroad sector the uniform, nationwide regulation its members desire.

Both rules also cover rail transport of three types of hazmat: certain explosive materials, certain radioactive materials, and hazmat chemicals like chlorine that pose a toxic or poisonous inhalation hazard, which regulators refer to interchangeably as “TIH” or “PIH” chemicals. The two most common are chlorine and anhydrous ammonia, the latter a key ingredient in agricultural fertilizer.

All of the data generated specifically by both the PHMSA and TSA will be designated sensitive security information, meaning it will be restricted to stakeholders on a need-to-know basis. Local officials are included among stakeholders.

PHMSA’s Rule

Unlike the TSA rule, which applies only to tank cars, PHMSA’s rule applies to specific “bulk” quantities of certain explosives, PIH chemicals, and radioactive materials, regardless of car type.

PHMSA’s rule requires that rail carriers catalog all data on shipment of the covered hazmats and conduct route analyses—essentially risk assessments—for each existing shipment route and potential alternative routes, considering 27 risk factors named by PHMSA. Those factors include volume to be transported, traffic density along the route, proximity to iconic targets and passenger rail, and the history of mishaps along the route.

PHMSA’s rule provides guidance for railroads in determining how to weight the different risk factors, and it offers two suggested approaches for risk assessment methodology.

The two methodologies are the Rail Corridor Risk Management Tool and the Rail Corridor Hazmat Response and Recovery Tool, both developed by the Freight Rail Security Program, a public-private initiative spurred by a major rail accident that occurred in Graniteville, South Carolina, in 2005. In that incident, a plume of toxic chlorine gas that was released when rail cars collided killed eight and sickened hundreds.

Concurrent to the route analyses, the railroads must consider potential risk mitigation measures along both primary and alternative routes and whether those measures would affect eventual route selection. In both the route analyses and consideration of mitigation measures, the rule requires that railroads consult directly with state and local authorities. To simplify that requirement, PHMSA suggests that railroads engage state, regional, and urban intelligence fusion centers as a single point of contact.

PHMSA initially proposed that railroads begin the route analysis process with data covering the last six months of 2008 and complete their assessments by September 1, 2009. In the final rule, PHMSA gives railroads that option, as well as the choice of completing an initial analysis incorporating data from all of 2008 by March 31, 2010.

Once assessments are complete, PHMSA mandates that for each segment of a railroad’s operating area, the carrier use the route that presents the least risk where “commercially practicable,” which means, “the route is economically viable given the economics of the commodity, route, and customer relationship,” the rule states.

The final rule mandates that railroads conduct annual reassessments, rebuffing an industry request that routes only require reassessment after significant physical or operational changes.

Critics of the route analysis approach, primarily state and city governments and environmental groups, had requested mandatory rerouting of the covered hazmats around the country’s 46 high-threat urban areas (HTUAs) designated by the U.S. Department of Homeland Security (DHS). Greenpeace, for example, requested mandatory rerouting “wherever technically feasible.”

Those critical of PHMSA’s approach take issue with the criteria of commercial practicability, which they say lets carriers use profit—not safety or security—as the sole guide for routing decisions.

“The test of practicability applies solely to the railroad’s economics; there is no attempt to balance the costs to the railroads against the potential costs to the nation in general,” wrote the California Public Utilities Commission in commenting on the rule when proposed. Attorneys for the city of Baltimore, Maryland, meanwhile wrote to PHMSA that the rule “will not be likely to yield any change from the status quo.”

In the final rule, PHMSA rejected these concerns and stuck with the position that railroads should fully document economic variables in their route analyses to demonstrate the validity of their routing decisions relative to cost.

The final analyses are not subject to an explicit acceptance or rejection process, however, route selection decisions will be incorporated into the existing inspection process, according to PHMSA. That inspection is carried out by PHMSA’s partner agency in DOT, the Federal Railroad Administration (FRA).

 FRA inspectors can compel route changes, and the agency can issue civil penalties for noncompliance up to $10,000 per day, according to a separate FRA enforcement rule. Ultimately, how effective the rule is will be determined not by its language, say industry commentators, but by the strength of its enforcement through these FRA inspections.

In addition to route analysis, the PHMSA rule requires that rail carriers conduct a ground-level inspection of all covered hazmat cars prior to departure from the shipper or prior rail carrier, specifically to check for the presence of improvised explosive devices (IEDs). Further, shippers and carriers must work together to expedite shipping with the goal of reducing “standstill” times for cars that carry the covered substances.

PHMSA does not require that rail lines disclose to surrounding jurisdictions the hazmats they transport. Critics say that this adds to the risk for residents and first responders.

In its rule, PHMSA recommends that railroads disclose to jurisdictions along their routes the 25 hazmats most commonly carried through their area. Currently, when firefighters respond to the scene of a railroad accident, they rely on DOT-mandated, diamond-shaped placards to alert them to the presence of hazardous materials. For direction on the threats posed by the chemicals, the U.S. chemical industry operates a call center for first responders 24 hours a day, seven days a week, called CHEMTREC.

TSA’s Rule

The second rule, issued by the TSA, supplements PHMSA’s route analysis regulation. The TSA rule focuses on ensuring a secure, documented chain of custody for rail tank cars carrying certain explosive, radioactive, or PIH payloads and further requires that carriers provide the TSA with information about cars’ locations when that information is requested. The rule applies primarily to hazmat cars that may pass through HTUAs, while selected elements apply to other rail sectors such as mass transit carriers.

Security coordinators. The TSA rule, which went into effect December 26, requires that all railroads—with minor exceptions such as recreational or small scenic railroads—designate a rail security coordinator (RSC) and ensure that the RSC, or an alternate, is available to the TSA 24 hours a day, seven days a week.

Like many elements of the rule, the RSC requirement is performance-based, which means that it does not mandate exactly how operators satisfy it. In other words, the TSA does not require that railroads hire someone new to exclusively handle the RSC responsibility. It suggests, however, that larger operations probably should designate one official as a full-time RSC. Smaller rail carriers could assign the responsibility to an existing employee.

Reporting. The TSA rule requires that all railroads immediately report any suspicious activity directly to the agency. In its final rule, TSA clarifies that railroads should, in cases of suspected criminal activity or emergencies, call local public safety agencies first and then TSA. According to the rule, some activities, such as youth vandalism, don’t merit reporting. TSA’s goal is to collect all possible suspicious activity information for analysis to detect potential threats.

Surprise inspections. The rule subjects nearly all commercial and passenger rail operations in the country to unannounced TSA inspections. The provision drew a sharp response from nearly all operators who commented during the rulemaking process.

Operators, primarily in the chemical-manufacturing and mass-transit sectors, warned of potential safety risks if inspectors venture into facilities without safety training. Chemical manufacturer Dow Chemical Co. warned that unannounced inspections may “significantly disrupt ongoing business activities.”

In their comments to TSA, more than one municipal transit authority suggested that unexpected inspections may create unintended, dangerous security situations; for example, terrorists might take advantage of the unscheduled nature of inspections and show up themselves in the guise of unannounced inspectors. TSA, however, held firm on the provision, stating that site management can call TSA directly to confirm the legitimacy of the inspection.

Tracking. TSA originally proposed requiring that operators in possession of covered hazmat tank cars provide the agency with a car’s location information within one hour of a request. Some commentators, such as The Fertilizer Institute (TFI), which represents manufacturers of anhydrous ammonia, argued that TSA should accept location information generated by the existing sectorwide Automatic Equipment Identification (AEI) system. AEI relies on a network of readers placed at intervals along the nation’s Class I railroad tracks. The sensors detect passive RFID tags on passing rail cars and report the information to operators and, in some cases, into shared fleet monitoring systems like Railinc, which is owned by the American Association of Railroads (AAR).

That system does not report real-time information. But TFI President Ford B. West in his comment letter wrote, “Railcar locations 6-8 hours old are more than adequate.”

The regulation states that Class I railroads must respond to TSA within five minutes of a request and within 30 minutes for location requests about multiple cars. Smaller class II and III railroads have 30 minutes for all requests.

But the rule does not mean that a carrier must provide the car’s location at the time it responded to the request, according to agency spokesperson Greg Soule. He says that regulators are not placing the bar that high, instead requiring that operators provide “the last reported location of the rail cars using their existing car management systems.”

The agency leaves it to carriers to meet the tracking requirement with whatever technology they find appropriate. Thus, carriers may rely on GPS-based tracking, AEI, or even location information provided via radio or mobile phone by an engineer in a train’s locomotive.

Real-time GPS tracking technology is currently fielded on many hazmat rail tank cars, but it is put there by chemical manufacturers rather than the railroad operators. While railroads own many of the boxcars and flatcars in their trains, hazmat tank cars are typically the property of manufacturers due to the required specialization of the cars and the risks inherent in shipping hazmats.

The wireless, solar-powered GPS units that major chemical companies have installed on their tank cars offer sensors that allow operators to monitor the status of their shipments, including temperature, pressure, hatches, impacts, and leakage (see “Tracking Dangerous Cargo,” Security Management, December 2007).

The units can typically determine location with both GPS and terrestrial cellular signals, and they can transmit location information both via satellite and cellular. While GPS and satellite service can cover cellular “dead zones” in remote areas, satellite communication requires an unobstructed line of sight to the satellite, so the units are more likely to rely on terrestrial cellular signals in dense urban areas.

Chain of custody. Among the most challenging elements of the new rule is the requirement that operators maintain a secure, documented chain of custody for covered hazmat cars.

While rail car transfers by major carriers are often conducted remotely, if not automated, the rule requires that all car custody transfers are attended by at least one person and are formally documented either electronically or in writing. Time, place, entities, and persons attending must be recorded.

The rule’s physical security requirements apply when railroads pick up tank cars from shippers, which are usually the chemicals’ manufacturers. In addition to the ground-level IED inspection required under the PHMSA rule, the railroad carrier must conduct a broader inspection for any suspicious items or signs of tampering such as with closures and seals.

After the inspection and until the car departs that location—a period during which many hazmat laden cars were historically left on tracks outside a shipper’s fence line—cars must be stored in a “rail secure area,” which, according to TSA, could include fencing, lighting, or sensors “observed by an employee or authorized representative.”

When the cars arrive in an HTUA and stop, whether for transfer or delivery, the railroad carrier “must not leave the rail car unattended in a non-secure area until the…receiver accepts custody of the car.”

In their public comments, multiple stakeholders asked TSA to better define the term “attended.” In the final rule, TSA writes that a car is attended if a person “is physically located on site in reasonable proximity to the rail car…is capable of promptly responding to unauthorized access or activity at or near the rail car, including immediately contacting law enforcement or other authorities.”

When Security Management asked TSA to define “reasonable proximity” and “promptly,” the agency declined to elaborate. The rule does state that “electronic monitoring is permitted so long as the responsible party is located on the site and can accomplish an equivalent level of surveillance, response, and notification.”

The exact interpretations of those words will be defined over time by regulatory enforcement and perhaps in court. Fines for noncompliance with TSA’s rule, like FRA’s, can reach $10,000 a day.

Effectiveness

Cities and environmental groups predicted little or no reduction in risk from PHMSA’s routing rule. Railroads and chemical manufacturers questioned whether the TSA rule was cost-effective.

PHMSA estimates that its rule will cost railroads $20 million over 20 years, in 2008 dollars adjusted for inflation. To place the projected cost in context, AAR places the annual revenues of North American railroads at $42 billion.         

TSA’s cost projections for compliance with its rule are higher and more a matter of debate among carriers and vendors. TSA estimates that compliance will cost the industry $22 million in its first year, with that figure trailing off to $11.8 million in the rule’s tenth year.

Railroads have charged that TSA is underestimating the rule’s cost. The greatest expenses are likely to result from the personnel demands generated by chain-of-custody and car-attendance requirements, in particular for the country’s smaller Class II regional and Class III “short line” railroads. Many railroads in the latter group operate on a limited schedule, a couple of days each week and do not staff facilities all the time.

Larger railroads have commented that the risk reduction offered by the rules is not worth the cost. Norfolk Southern told the agency that the benefit of the rule will be “minimal.”

While TSA’s parent agency, DHS, assesses programs and policies based on anticipated risk reduction, neither TSA nor PHMSA used a risk-reduction test to assess the value of the new railroad rules.

“Estimating the security benefits of the proposed new requirements is challenging,” PHMSA wrote in its 2006 proposal, later stating that “the probability hazardous materials will be targeted is, at best, a guess.”

The agency concluded that the rules were worth pursuing because “the fact an event is infrequent or has never occurred does not diminish the risk or possibility of such an event occurring.”

Joseph Straw is an assistant editor at Security Management.