MARITIME (HAZARDOUS LIQUIDS & GASES) / “The interim rule updates and revises regulatory tables that list liquid hazardous materials, liquefied gases, and compressed gases that have been approved for maritime transportation in bulk, and that indicate how each substance’s pollution potential has been categorized.”

“2012 Liquid Chemical Categorization Updates”

Interim Rule; Delay of Effective Date. September 16, 2013.

“ …. The interim rule provides new information about approved substances and their categorizations, but would not change which substances are approved or how each substance is categorized. Updated information is of value to shippers and to the owners and operators of U.S.-flag tank and bulk cargo vessels in any waters and most foreign-flag tank and oceangoing bulk cargo vessels in U.S. waters. This interim rule promotes the Coast Guard’s maritime safety and stewardship missions.”

HAZARDOUS MATERIALS (ENFORCEMENT) – No an enforcement action; but a proposed change in the rule to bar from transport of any materials regulated by the Hazardous Materials Regulation any party that who fails to pay a civil penalty as ordered for a past violation of the HMR.

“Hazardous Materials: Failure To Pay Civil Penalties” 

Notice of Proposed Rulemaking. September 24, 2013.

Significantly upping the ante on those who are “scofflaws” on their hazmat civil penalty orders.

COMMENT: This bears some study, but the literal language would render illegal operation of whatever transport instrumentality is operated by the entity whose PHMSA penalty civil order remains unpaid. 

One area for consideration: Insurance policies that require operation in accord with applicable law.

Another: A lease the similarly requires operation in conformity to applicable law. 

 

 

RAILROADS & HAZARDOUS MATERIALS / Implementing the MAP-21 statute enacted in 2012, the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Administration (PHMSA) amend both the Federal Motor Carrier Safety Regulations and Hazarouds Materials Regulations, “to prohibit a driver of a commercial motor vehicle or of a motor vehicle transporting certain hazardous materials or certain agents or toxins (hereafter collectively referenced as ‘regulated motor vehicle’) from entering onto a highway-rail grade crossing unless there is sufficient space to drive completely through the grade crossing without stopping”.

“Highway-Rail Grade Crossing; Safe Clearance”

Final Rule. September 25, 2013. 

This is a major development in an area of much safety concern over accidents and also a much-litigated matter in tort cases.

The background here is detailed and complex.

Among other implications: The PHMSA and FMCSA standard set forth here will likely be incorporated into negligence standard of care instructions to juries and to judges as finders of fact under a “negligence per se” theory.

HAZARDOUS MATERIALS (STATIONARY EMPHASIS) / President issues executive order to Cabinet Departments of Homeland Security and Labor, and the Environmental Protection Agency to lead multiple Federal cabinet departments and agencies on a high-level review of “chemicals, and the facilities where they are manufactured, stored, distributed, and used” in response to incidents like the one at West, Texas.

“Improving Chemical Facility Safety and Security”

August 7, 2013. Executive Order 13650 of August 1, 2013. 

 

 

 

 

 

 

HAZARDOUS MATERIALS (RAILROADS) / Two agency developments responding to the Lac-Mégantic tragedy: (1) Federal Railroad Administration (FRA) emergency order “for attendance and securement of certain freight trains … on mainline track or mainline siding outside of a yard or terminal; and (2) FRA and Pipeline and Hazardous Materials Safety Administration (PHMSA) jointly announce emergency meeting of Railroad Safety Advisory Committee on railroad and hazardous materials issues related to Lac-Mégantic.

ITEM #1: “Emergency Order Establishing Additional Requirements for Attendance and Securement of Certain Freight Trains and Vehicles on Mainline Track or Mainline Siding Outside of a Yard or Terminal.

August 7, 2013. Notice.

ITEM #2: “Lac-Mégantic Railroad Accident Discussion and DOT Safety Recommendations”

August 7, 2013. Notice Of Safety Advisory And Announcement Of Emergency Meeting Of The Railroad Safety Advisory Committee.

With respect to FRA and PHMSA joint meeting to discuss implications of Lac-Mégantic incident for U.S. railroad and hazardous materials policy.

HAZARDOUS MATERIALS (INNOVATION FOR ELECTRONIC INFORMATION) / As authorized by the Moving Ahead for Progress in the 21st Centruy Act (MAP-21), the “[Pipeline and Hazardous Materials Safety Administration] PHMSA invites volunteers for a pilot program to evaluate the effectiveness of paperless hazard communications systems and comments on an information collection activity associated with the pilot program.” The innovation: “Paperless hazardous materials (e-HM) communications systems (e-systems)”. The challenge: All parties – but especially emergency response providers – have historically relied on physical signage and shipping papers when coming into contact with a hazmat incident.

“Paperless Hazard Communications Pilot Program”

“PHMSA invites volunteers for a pilot program to evaluate the effectiveness of paperless hazard communications systems and comments on an information collection activity associated with the pilot program. “Moving Ahead for Progress in the 21st Century Act” (MAP-21) authorizes PHMSA to conduct a pilot program to evaluate the feasibility and effectiveness of using paperless hazard communications systems. In accordance with MAP-21, in conducting the pilot projects, PHMSA may not waive the current shipping paper requirements. In addition, MAP-21 indicates that PHMSA must consult with organizations representing fire and other emergency responders, law enforcement, and regulated entities. Upon completion of the pilot projects, PHMSA must evaluate the feasibility and effectiveness of paperless hazard communications systems and make a recommendation to Congress regarding regulatory changes that would permanently authorize the use of paperless hazard communications systems. The report is due to Congress by October 1, 2014. The intent of this notice is to: (1) Describe the current regulatory requirements for shipping papers; (2) describe authority granted under MAP-21; (3) explain the goal, scope, and intent of the pilot program; (4) seek volunteers to participate in the pilot projects and describe criteria for selecting pilot participants from the volunteers; and (5) seek comment on the request for information to be collected in conducting the pilot projects and in consulting with organizations representing fire and other emergency responders, law enforcement, and regulated entities. Information gathered will enable PHMSA to generate a report to Congress detailing: (1) The performance of each paperless hazard communications system tested during the pilot projects; (2) PHMSA’s assessment of the safety and security impacts on stakeholders; (3) the associated costs and benefits; and (4) PHMSA’s regulatory recommendation(s).” 

RAILROADS (RESPONSE TO LAC-MÉGANTIC TRAGEDY) / Presumably part of the federal government’s response to Lac-Mégantic tragedy: U.S. DOT’s Federal Railroad Administration’s (FRA’s) Hazardous Materials Division announces along with Pipeline and Hazardous Materials Safety Administration a 2-day meeting August 27-28 about “a public meeting addressing the transportation of hazardous materials by rail”.

“Hazardous Materials: Improving the Safety of Railroad Transportation of Hazardous Materials”

July 18, 2013. Announcement of Public Meeting and Establishment of Public Docket.

The announcement does not mention any particular reason. But it’ a two-day public meeting that they are just announcing 4 weeks before the event.

My calls to specific people at the Hazardous Materials Division did not reach anyone who could give me more detail about background.

RAILROADS (TRANSPORT CANADA EMERGENCY SAFETY RULES DANGEROUS GOODS TANK CARS IN A TRAIN CONSIST) / Transport Canada announced emergency railway safety rules in wake of Lac-Mégantic tragedy following two advisory letters to it from Transportation Safety Board of Canada (counterpart to U.S. National Transportation Safety Board): (1) Require 2 operators on a locomotive attached to loaded tank cars carrying “dangerous goods” (counterpart to U.S. usage “hazardous materials”), and (2) ensure that no trains are left unattended while transporting loaded tank cars with dangerous goods.

Transportation Safety Board of Canada sent two advisory letters to Transport Canada (July 18, 2013 advisory letter available here, and July 19, 2013 advisory letter available here).

In response to these two advisory letters, Transport Canada issued an emergency directive pursuant to Section 33 of Canada’s Railway Safety Act.  

Emergency directive available here

RAILROADS (TANK CAR TRANSLOADING AFTER HEATING) / U.S. Federal Railroad Administration issues guidance in parts: (1) “Safety precautions and recommended guidance for persons responsible for unloading or transloading hazardous materials from rail tank cars, specifically those persons heating a rail tank car to prepare its hazardous material contents for unloading or transloading”; and (2) “Reminds such persons of current regulatory requirements addressing this type of operation”.

“Safety Advisory Guidance: Heating Rail Tank Cars To Prepare Hazardous Material for Unloading or Transloading.”

Safety Advisory Guidance. July 12, 2013.

Federal Register announcement refers to National Transportation Safety Board investigations of:

(1) An incident February 18, 1999 in which a 20,000-gallon rail tank car was propelled by an explosion 750 feet over multi-story storage tanks at the Essroc Logansport cement plant near Clymer, Indiana due to a sudden and catastrophic rupture of the tank car.

(2) An incident September 13, 2002 in which “a 24,000-gallon-capacity rail tank car containing about 6,500 gallons of hazardous waste catastrophically ruptured at a transfer station at the BASF Corporation chemical facility in Freeport, Texas” – and “the force of the explosion propelled a 300-pound rail tank car dome housing about1/3mile away from the rail tank car”, and “about 660 gallons of the hazardous material oleum” were released.  

The agency’s summary was as follows:

“This guidance provides safety precautions and recommended guidance for persons responsible for unloading or transloading1 hazardous materials from rail tank cars, specifically those persons heating a rail tank car to prepare its hazardous material contents for unloading or transloading. Further, this guidance reminds such persons of current regulatory requirements addressing this type of operation. PHMSA is issuing this guidance in coordination with the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA), and in consultation with the Federal Railroad Administration (FRA).

“As defined in § 171.8, Transloading means the transfer of a hazardous material by any person from one bulk packaging to another bulk packaging, from a bulk packaging to a non-bulk packaging, or from a non-bulk packaging to a bulk packaging for the purpose of continuing the movement of the hazardous material in commerce.”

The agency’s guidance was as follows:

“Several Federal agencies share responsibility for the safety regulations of rail tank car unloading or transloading operations involving hazardous material—DOT (PHMSA and FRA), OSHA, and EPA. PHMSA, in coordination with OSHA and EPA, and in consultation with FRA, is issuing this safety advisory guidance to offer guidance on heating of a rail tank car to prepare solidified or viscous hazardous material products contained in the rail tank car for unloading or transloading. Based on existing regulatory requirements, we have assembled and coordinated the following guidance to raise awareness of those requirements and the risks associated with heating rail tank cars. This guidance does not include all of the aspects applicable to the safe heating of rail tanks cars; rather, it focuses on the issues raised in the NTSB recommendations as a result of its investigations into the two incidents cited above.

“Procedures. The shipper or facility operator, if not the same, should develop written safe operating procedures to be used when hazardous materials are heated in a rail tank car for unloading or transloading. The procedures should, at a minimum, establish hazard controls necessary to protect workers, the public, and the environment from adverse consequences, and include:

  • Detailed information regarding the chemical characteristics of the material such as, melting temperature, flash point, the degree to which the hazardous material expands as a result of heating, and additional risk if the hazardous material reacts with air or water.;
  • The pressure created by heating the rail tank car at which the material may safely be unloaded or transloaded from the rail tank car;
  • Active monitoring and recordkeeping requirements of the internal tank pressure and material temperature during the heating process. The heating process should be monitored with time intervals (such as hourly) that are dependent upon the nature and history of materials being heated;
  • Potential consequences of deviations from standard operating procedures and how to identify, control and respond to those consequences; and
  • Training of all entities involved in the unloading or transloading process.

“These procedures should be maintained in a location where they are immediately available to employees responsible for the heating, unloading or transloading operation. These procedures should clearly define employees’ roles and responsibilities for the heating of a rail tank car, as well as the roles and responsibilities of contractor personnel that are employed at a facility to conduct the operations for heating of a rail tank car.

“Monitoring. The facility operator should be knowledgeable of the chemical properties of all of the materials involved in the heating process, including the reactivity of those materials, and ensure that the heating process (i.e., pressure, temperature, and heating rate) applied to the rail tank car, and the pressure and temperature inside the rail tank car should be monitored to ensure that it does not result in over-pressurization of the rail tank car.

Monitoring should be conducted at the necessary frequency as heating continues until the material reaches its recommended parameters (e.g., viscosity and temperature) for safe unloading or transloading. Certain chemicals, such as a material that can undergo rapid exothermic decomposition, may require more frequent or even continuous monitoring during heating. Monitoring of the tank pressure and the temperature of the hazardous material includes measures to ensure that the heating rate does not result in over pressurization of the rail tank car.

As an additional aspect of monitoring, the facility operator may, when practical and safe, and the physical state of the material allows, sample the material that is in the rail tank car to verify the material and its chemical and physical properties. The rail tank car contents should be monitored at multiple times as heating continues until the material is determined to be at its recommended parameters (e.g., viscosity and temperature) for safe unloading or transloading.

“Designated Employee. The facility operator should designate an employee responsible for monitoring the heating process. Prior to the onset of operation, the designated employee should be made thoroughly knowledgeable of the nature and properties of the material contained in the rail tank car and procedures to be followed in the event of an emergency. In the event of an emergency, the designated employee should have the ability and authority to take responsive action.

“Training. Hazardous materials employees involved in heating rail tank cars for unloading or transloading operations should be trained in all aspects of the heating process that each employee is responsible for performing. Further, the level of training for each employee should correlate with that employee’s level of exposure to hazardous materials at the facility where rail tank cars are heated for unloading or transloading. Please refer to the Section III for a discussion of specific training obligations under applicable Federal regulations.”

HAZARDOUS MATERIALS (IMPLEMENTING MAP-21 STATUTE) / Hazardous Materials – To follow Congress’ direction in MAP-21 / Hazardous Materials Transportation Safety Improvement Act of 2012 (HMTSIA), “[the Pipeline & Hazardous Materials Safety Administration is] proposing in this rulemaking, as described further below, [1] to clarify [U.S. DOT’s] position with respect to perishable hazardous material, by amending the opening of packages provision of the Department’s hazardous materials procedural regulations for the opening of packages, emergency orders, and emergency recalls …. [2] … to codify the statutory notification requirement in HMTSIA by incorporating into the regulations the Department’s current notification procedures from the operations manual. [And] … to add a new provision to address appropriate equipment for inspectors.”

“Hazardous Materials: Enhanced Enforcement Procedures-Resumption of Transportation.”

May 22, 2013. Notice of Proposed Rulemaking.

“On July 6, 2012, the President signed the Moving Ahead for Progress in the 21st Century Act, or the MAP-21, which included the Hazardous Materials Transportation Safety Improvement Act of 2012 (HMTSIA) as Title III of the statute. Public Law 112-141, 126 Stat. 405, July 6, 2012. Section 33009 of HMTSIA revised 49 U.S.C. 5121 to include a notification requirement. Congress also directed the Department to address certain hazmat transportation matters through rulemaking:

  • The safe and expeditious resumption of transportation of perishable hazardous material, including radiopharmaceuticals and other medical products that may require timely delivery due to life-threatening situations;
  • The means by which non-compliant packages that present an imminent hazard are placed out-of-service until the condition is corrected;
  • The means by which non-compliant packages that do not present a hazard are moved to their final destination;
  • Appropriate training and equipment for inspectors; and
  • The proper closure of packaging in accordance with the hazardous material regulations.

“We are proposing in this rulemaking, as described further below, to clarify the Department’s position with respect to perishable hazardous material, by amending the opening of packages provision of the Department’s hazardous materials procedural regulations for the opening of packages, emergency orders, and emergency recalls. The amendment recognizes the special characteristics and handling requirements of perishable hazardous material by clarifying that an agent will stop or open a package containing a perishable hazardous material only after the agent has utilized appropriate alternatives. We are also proposing to codify the statutory notification requirement in HMTSIA by incorporating into the regulations the Department’s current notification procedures from the operations manual. Finally, we are proposing to add a new provision to address appropriate equipment for inspectors. For the remaining mandates to address certain matters related to the Department’s enhanced inspection, investigation, and enforcement authority, we are proposing no additional regulatory changes. We believe that the Department’s current rules that were previously established through notice and comment rulemaking and existing policies and operating procedures thoroughly address the hazmat transportation matters identified by Congress as requiring additional regulations. For instance, in a prior rulemaking, the Department established, in Part 109, procedural regulations for opening packages, removing packages from transportation, and closing packages. These regulations include the definition of key terms, including perishable hazardous material. The regulations address how the Department’s agents will handle non-compliant packages that present an imminent hazard and those that do not. Moreover, the rules address when and how the Department’s agents will open a package. And, if an agent opens a package, there are procedural rules for closing the package and ensuring its safe resumption of transportation, if applicable. In addition, the Department developed an internal operations manual for training and use by its hazmat inspectors and investigators across all modes of transportation. The operations manual’s guidance is intended to target and manage the use of the enhanced inspection and enforcement authority in a uniform and consistent manner within the Department. At this time, we do not have any data or other information that indicate the rules, policies, and operating procedures currently in place are inadequate or that additional regulations are necessary.”