United States Postal Service
Notation 7388: The National Transportation Safety Board has reviewed the Research and Special Programs Administration’s (RSPA’s) notice of proposed rulemaking (NPRM), “Applicability of Hazardous Materials Regulations to Loading, Unloading, and Storage,” Docket No. RSPA-98-4952 (HM-223), published at 66 FR 32420 on June 14, 2001.
RSPA is proposing in the NPRM that the applicability of the hazardous materials regulations (HMR) to loading and unloading activities be based on a “carrier-controlled” criterion under which transportation would begin when the container/package comes under the control of the carrier and end when the carrier relinquishes control. As stated in the preamble, “the HMR would apply to all carrier activities after the carrier takes possession of the hazardous material from an offeror for purposes of transporting it until the package is delivered to its destination, including loading and unloading activities conducted by carrier personnel.”
RSPA further states in the preamble that “consignee unloading is not part of transportation in commerce as we propose to apply that term because it occurs after movement in commerce is completed” and that “loading of a tank car by a shipper and unloading of a tank car by a consignee within a facility would not be subject to the HMR.” As RSPA is likely aware, rail carriers are not involved with the loading and unloading of tank cars unless a tank car begins to release its cargo during transit and the cargo must be transferred to another tank car. As for motor carriers, carrier personnel may or may not be involved with the loading and unloading of cargo tanks at shippers’ and consignees’ facilities, depending upon the hazardous material to be handled and the procedures at the facility. Consequently, the Safety Board is primarily concerned that the HMR would not apply to loading and unloading operations for railroad tank cars, highway cargo tanks, and other bulk containers.
The Safety Board has historically and consistently considered loading and unloading operations, particularly of bulk containers such as railroad tank cars, highway cargo tanks, and intermodal bulk containers, to be transportation-related functions. Title 49 United States Code Section 5102 defines “transportation” as “the movement of property and loading, unloading, or storage incidental to movement.” The U.S. Department of Transportation (DOT) HMR at 49 Code of Federal Regulations 107.4 similarly defines transportation “as any movement of property by any mode, and any loading, unloading, or storage incidental thereto.”
Accordingly, the Safety Board believes that the DOT has both the statutory mandate and authority to regulate loading and unloading operations. The Safety Board notes that the DOT has exercised its authority to regulate loading and unloading operations in the past with the adoption of such regulatory provisions as 49 CFR 173.30 (loading and unloading of transport vehicles in all modes), 174.67 (tank car unloading), 174.101 – 174.115 (loading explosive materials by rail), and 177.834 (general loading and unloading requirements for highway). Also, the Federal Railroad Administration (FRA) has issued hazardous materials bulletins that explain FRA policy and provide guidance about various regulated activities, including tank car unloading, attendance requirements during the unloading of tank cars, and hazardous materials training. In the Board’s view, the DOT has, by these actions, established that loading and unloading operations are properly regulated by the HMR.
The carrier-controlled criterion proposed by RSPA, as it applies to loading and unloading operations for hazardous materials being transferred to (or from) railroad tank cars, highway cargo tanks, and other bulk containers, will have a significant impact on public safety. The Safety Board has investigated more than 15 accidents since 1971 that have involved the loading or unloading of hazardous materials transported in bulk containers and has issued 18 Safety Recommendations addressing loading and unloading operations to the DOT and its modal administrations. (See enclosures 1 and 2.) Collectively, these accidents have resulted in 18 fatalities, 261 injuries, 6,600 evacuations, and more than $28.5 million in damage. The impact of these accidents upon public safety has been significant and demonstrates the need for effective Federal oversight of loading and unloading operations involving bulk transportation containers containing hazardous materials. Further, the Safety Board is currently investigating an accident that occurred on July 14, 2001, at the ATOFINA Chemicals, Inc., plant in Riverview, Michigan. The accident involved the release of methyl mercaptan (a poisonous and flammable gas) and resulted in 3 fatalities, 6 injuries, and the evacuation of nearly 2,000 local residents. The release of the methyl mercaptan was from a tank car being prepared for offloading.
Also, recent statistics obtained through the DOT’s Hazardous Materials Information System (HMIS) indicate that from 1995 through July 27, 2001, there were 6,947 incidents related to the unloading of hazardous materials from highway cargo tanks. These statistics also reveal that 16 fatalities and more than 250 injuries were associated with these incidents. During the same time, there were 186 railroad tank car unloading incidents, causing a total of 1 fatality and more than 45 injuries. Under this proposed rule, written incident reports on many of these accidents may not be submitted to RSPA and entered into the HMIS, and the capability to detect accident trends and causes in future loading and unloading accidents would be lost.
In two recent Safety Board investigations that involved unloading operations, the June 4, 1999, Whitehall, Michigan, and November 19, 1998, Louisville, Kentucky, accidents, the Safety Board determined that enhanced safety requirements were needed for loading and unloading hazardous materials involved in transport and recommended on June 29, 2000, that RSPA:
Within 1 year of the issuance of this safety recommendation, complete rulemaking on Docket HM-223 “Applicability of the Hazardous Materials Regulations to Loading, Unloading and Storage,” to establish, for all modes of transportation, safety requirements for loading and unloading hazardous materials.
In addition, as a result of the Clymers, Indiana, accident, the Safety Board reiterated Safety Recommendation I-00-6 on March 5, 2001. In an April 5, 2001, response, RSPA noted that publication of the NPRM was scheduled for mid-2001, but it did not otherwise indicate that the NPRM would address Safety Recommendation I-00-6. In a July 23, 2001, letter to RSPA, the Safety Board stated that it considered the establishment of safety standards and requirements for loading and unloading operations to be an essential part of HM-223. The Safety Board also expressed its concern about RSPA’s lack of progress in addressing these issues in HM-223 and noted that the DOT is not providing sufficient direction to ensure that personnel involved in these operations are properly trained and provided with clearly written procedures. Safety Recommendation I-00-6 remains classified “Open—Unacceptable Response.”
RSPA’s own accident data from the HMIS indicate that loading/unloading accidents significantly affect public safety, and yet the proposed criterion excludes the submission of incident/accident notification reports about loading/unloading accidents and negates the improvements being proposed under the “Hazardous Materials: Revisions to Incident Reporting Requirements and the Hazardous Materials Incident Report Form,” Docket No. RSPA-99-5013 (HM-229), rulemaking.
The Safety Board is also concerned that certain proposed standards undermine RSPA’s longstanding policy of encouraging uniform national standards for transporting hazardous materials. Under this NPRM, highway cargo tank loading and unloading is covered by the HMR if it is performed by carrier personnel, but the same loading or unloading operation would be exempt from the rules if performed by non-carrier personnel. In other words, application of the HMR to loading/unloading operations would depend solely on the status of the person or persons performing the operation. This would very likely result in different standards being imposed by different agencies (Federal, State, or local) for loading/unloading operations performed at a given facility with the same equipment. Further, the proposed NPRM does not explain which standards apply to loading or unloading operations that are jointly completed by carrier and facility personnel.
RSPA notes in the NPRM that the Environmental Protection Agency (EPA), the Occupational Safety and Health Administration (OSHA), and local jurisdictions such as fire departments would oversee loading and unloading operations of tank cars, cargo tanks, and other bulk containers performed by shippers and consignees at shippers’ and consignees’ facilities. RPSA, however, is silent in the NPRM as to whether it has coordinated with either the EPA or OSHA about accepting these oversight responsibilities and whether RSPA has evaluated either agency to determine if it has the expertise and resources to effectively oversee these transportation-related operations. The Safety Board is specifically concerned about the lack of expertise that personnel from these agencies have in rail tank car design, cargo tank design, and the operational parameters associated with bulk container loading and unloading. The Safety Board is not convinced that, if RSPA relinquishes its regulatory authority over hazardous materials loading/unloading operations, other Federal and State agencies will be able to effectively exercise the necessary safety oversight of these very specific areas of transportation.
The statutory mandates for both the EPA and OSHA are quite broad. The EPA’s regulatory areas include air and water pollution, toxic waste dumping/cleanup, and pesticides, to name a few. OSHA’s regulatory responsibilities include a wide spectrum of work places, from office environments to major manufacturing facilities, agricultural activities, and diving operations and cover all aspects of these various work places. OSHA does have regulations pertaining to loading and unloading of tank cars and cargo tank trucks transporting flammable liquids, liquefied petroleum gas, and anhydrous ammonia. These regulations include requirements such as the use of level track, display of warning signs, blocking of wheels, attendance by properly trained personnel, separation distances of transfer facilities from other buildings, placement of shutoff valves, and electrical bonding, but do not include specific requirements for written procedures and training that have been the subject of previous Safety Board recommendations. The Safety Board is not aware of any EPA regulations that specifically address the transfer of hazardous materials from tank cars, cargo tanks, and other bulk containers or that focus on the operating procedures or training of personnel involved in loading/unloading operations. Neither agency’s regulations require the gathering of data about the failure of bulk container packaging in transportation-related accidents.
Further, OSHA regulations grant the individual States the authority to develop and operate their own State Implementation Plans (SIPs) to enforce Federal occupational, safety, and health regulations in conjunction with the State’s own regulations. Michigan and Kentucky are 2 of the 23 States that have approved SIPs; however, as a result of the Safety Board’s investigations of the Whitehall and Louisville accidents, the Safety Board discovered that neither State’s OSHA had inspected the loading/unloading operations at either plant. Further, neither State’s OSHA had personnel trained in or knowledgeable about the transportation of bulk hazardous materials. The Safety Board is concerned that State OSHAs lack the resources and expertise to provide effective oversight of loading/unloading operations of hazardous material bulk containers.
In summary, the Safety Board believes that the proposed rules may result in the elimination of effective Federal oversight of hazardous materials loading/unloading operations of bulk transportation containers. The Safety Board believes that the DOT should strengthen its oversight rather than ignore these issues. Further, the proposed rules will exclude the submission of incident/accident notification reports of loading/unloading accidents to the DOT for placement in the HMIS. Consequently, the Safety Board believes that the HMR should continue to apply to the loading/unloading of tank cars, cargo tanks, and other bulk containers and therefore strongly urges RSPA to modify this rulemaking accordingly.
The Safety Board is concerned that RSPA also proposes in this NPRM to exempt from the HMR “any matter subject to the postal laws and regulations.” RSPA does not provide a reason for this exemption or indicate what precautions are in place or are being implemented to justify this position. The fact that all items transported by the U.S. Postal Service will enter the transportation system at some point and will be transported by commercial carriers should be of utmost interest and concern to RSPA.
Problems with undeclared hazardous materials in mail have been addressed in previous Safety Board investigations, and the Safety Board has issued recommendations to the U.S. Postal Service (A-97-79 and A-00-54) regarding this issue. Further, the Safety Board has investigated several accidents that have involved undeclared hazardous materials that were shipped in U.S. mail.
On October 19, 1993, on a US Air flight scheduled to leave for Rochester, New York, ramp agents found a toilet cleaner containing a 23-percent concentration of hydrochloric acid. They found it after they noticed an unusual odor in the forward cargo compartment. A search revealed a partially destroyed mail sack containing a wet and partially destroyed box that was marked “corrosive.” The markings on the box were not visible inside the mailbag, nor did the mailbag have any hazardous materials markings on it. The shipment was sent as an internal postal shipment consigned to the U.S. Post Office in Holcomb, New York. The compartment had to be neutralized and cleaned.
On April 6, 1994, a Continental Airlines plane en route to Houston, Texas, experienced a mercury spill in a shipment of mail. The mailbag contained a box with two bottles of mercury, one of which had split open during transport. The mercury was found beaded on the aluminum floor of the cargo compartments. Mercury is a corrosive material, particularly to aluminum. The shipper said that he was unaware that shipping substances such as mercury by mail was illegal.
Thus, based on its experience with the U.S. Postal Service being used for the transport of hazardous materials, the Safety Board does not believe that any exemption to the HMR should be made for shipments that are subject to postal rules and regulations without first demonstrating that a proactive program within the DOT and/or the U.S. Postal Service is capable of detecting and intercepting all such mail shipments before they enter the transportation system and ensuring that all hazardous materials shipments are properly packaged and identified before entering the transportation system.
The Safety Board appreciates the opportunity to comment on this proposed rulemaking. If additional clarification or information is needed regarding our comments, feel free to contact us.