Safety Recommendation A-97-079

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:

I-00-6 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 hazardou

BECAUSE THE USPS' ACTIONS MEET THE INTENT OF A-97-79, IT IS CLASSIFIED "CLOSED--ACCEPTABLE ACTION." THE BOARD URGES THE USPS TO CONTINUE TO IMPLEMENT THIS PROGRAM NATIONWIDE AND TO ENSURE THAT EVERY POST OFFICE HAS THE INFORMATION AVAILABLE TO THE PUBLIC.

Letter Mail Controlled 3/15/99 4:13:38 PM MC# 990243 THE USPS CONTINUES TO WORK CLOSELY WITH THE FAA AND THE AIR TRANSPORATION ASSOCIATION ON IMPROVING PROGRAMS TO EDUCATE THE AMERICAN PUBLIC ABOUT THE DANGERS OF TRANSPORTING UNDECLARED HAZARDOUS MATERIALS ABOARD CIVIL AVIATION. RECENTLY, THROUGH OUR JOINT EFFORTS THE USPS HAS REVISED AND REISSUED CUSTOMER PAMPHLET "NOTICE 107," WHICH IDENTIFIES VARIOUS HAZARDOUS MATERIAL ITEMS THAT ARE PROHIBITED AND RESTRICTED IN THE MAIL, AS WELL AS POTENTIAL LEGAL CONSEQUENCES OF SUCH AN ACT. THESE NOTICES ARE CURRENTLY BEING DISTRIBUTED TO OVER 39,000 POST OFFICES NATIONWIDE.

RECENT DOMESTIC MAIL MANUAL REVISIONS TO CUSTOMER PACKAGING AND LABELING REQUIREMENTS HAVE BEEN FINALIZED. POSTAL CUSTOMER MAILINGS AND MEDIA ARTICLES HAVE BEEN ISSUED STRESSING THE IMPORTANCE OF PROPERLY PACKAGING AND LABELING HAZARDOUS MATERIAL IN THE MAIL. CURRENTLY, WE ARE DEVELOPING VARIOUS HAZARDOUS MATERIAL VIDEOS, LOBBY DISPLAYS AND WEB PAGE SITES TO FURTHER HEIGHTEN CUSTOMER AWARENESS OF THIS ISSUE. ACCEPTANCE EMPLOYEES WILL AGAIN BE ASKING CUSTOMERS IF PARCELS CONTAIN ANY HAZARDOUS MATERIAL. (ADDITIONAL INFORMATION WAS PROVIDED BY PHONE CONVERSATION WITH MR. BILL CARLTON, THE USPS REPRESENTATIVE FOR THIS ACTION)

THE USPS RESPONSE PROVIDED INFORMATION ON INTERNAL HAZARDOUS MATERIALS TRAINING FOR USPS EMPLOYEES THAT INCLUDES PACKAGING, LABELING, AND ACCEPTANCE PROCEDURES, AIRPORT TRANSFER AND RAMP TRAINING, AND RAPID EMERGENCY RESPONSE. HOWEVER, AS NOTED IN THE SAFETY BOARD'S 1/27/98, LETTER, WE WOULD APPRECIATE INFORMATION ON SPECIFIC MECHANISMS THAT THE USPS WILL USE TO EDUCATE POSTAL CUSTOMERS ABOUT THE RESTRICTIONS ON OFFERING CERTAIN HAZARDOUS MATERIALS THROUGH THE MAIL AND THE POTENTIAL DISASTROUS CONSEQUENCES OF SUCH AN ACT.

WE ARE ESPECIALLY INTERESTED IN MATERIALS USED, NUMBER OF LOCATIONS AND PLACEMENT OF MATERIALS TO EDUCATE THE PUBLIC, AND REQUIREMENTS FOR USPS EMPLOYEES TO REQUEST INFORMATION FROM CUSTOMERS REGARDING POSSIBLE HAZARDOUS MATERIALS IN PACKAGES BEING OFFERED FOR SHIPMENT. PENDING RECEIPT OF ADDITIONAL INFORMATION FROM THE USPS, A-97-79 IS CLASSIFIED "OPEN--UNACCEPTABLE RESPONSE."

Letter Mail Controlled 3/3/98 2:41:01 PM MC# 980285 THE USPS PROVIDES ONGOING HAZMAT TRAINING MODULES DEVELOPED INTERNALLY WITH THE ASSISTANCE OF CONSULTANTS AND THROUGH INTERAGENCY AGREEMENTS. THOUSANDS OF POSTAL EMPLOYEES RECEIVE ANNUAL TRAINING IN HAZMAT PACKAGING/LABELING/ACCEPTANCE PROCEDURES, AIRPORT TRANSFER/RAMP CLERK TRAINING, RAPID EMERGENCY RESPONSE, OSHA AND EPA REQUIREMENTS AND MANY OTHERS. THE USPS VERY NARROWLY LIMITS AND STRICTLY REGULATES THE CLASS AND QUANTITY OF HAZMAT ACCEPTED IN THE MAIL.

THE BOARD NOTES THAT THE USPS HAS ESTABLISHED A HAZARDOUS MATERIALS WORKING GROUP & THE REPRESENTATIVES HAVE ALREADY MET WITH MANAGER OF THE DANGEROUS GOODS & CARGO SECURITY DIVISION OF THE FAA TO BEGIN A JOINT EFFORT TO STRENTHEN THE USPS HAZARDOUS MATERIALS PROGRAM. THE BOARD ALSO NOTES THAT USPS REPRESENTATIVES HAVE "MET WITH MEMBERS OF THE FAA'S VOLPE CENTER TO DETERMINE WHAT TRAINING MATERIALS & COURSES THEY HAVE THAT MIGHT BE USEFUL IN TRAINING POSTAL EMPLOYEES & EDUCATING POSTAL CUSTOMERS ON HAZARDOUS MATERIALS.

THE BOARD IS AWARE THAT THE VOLPE NATIONAL TRANSPORTATION SYSTEMS CENTER IS CONDUCTING A QUANTITATIVE RISK ANALYSIS OF TRANSPORTING HAZARDOUS MAERIALS IN AIRCRAFT CARGO COMPARTMENTS FOR THE DOT'S RESEARCH & SPECIAL PROGRAMS ADMINISTRATION; HOWEVER, WE ARE NOT AWARE OF ANY HAZARDOUS MATERIALS TRAINING PROGRAMS OFFERED BY THE CENTER. THE BOARD WOULD APPRECIATE SPECIFIC INFO ON WHAT PROGRAMS ARE AVAILABLE & HOW THE USPS INTENDS TO INCORPORATE THEM INTO ITS PROGRAM.

THE BOARD WOULD ALSO APPRECIATE INFO ON THE SPECIFIC MECHANISMS THAT THE USPS WILL USE TO EDUCATE POSTAL CUSTOMERS ABOUT THE RESTRICTIONS OF OFFERING CERTAIN HAZARDOUS MATERIALS THROUGH THE MAIL & THE POTENTIAL DISASTROUS CONSEQUENCES OF SUCH AN ACT, & ABOUT THE PROGRAMS THAT WILL PROVIDED TO HELP POSTAL EMPOYEES IDENTIFY UNDECLARED HAZARDOUS MATERIALS OFERED BY MAIL. IN ADDITION TO EMPLOYEE TRAINING, THE USPS SHOULD ADDRESS THE NEED TO QUESTION THE CONTENTS OF PACKAGES. PENDING THIS ADDITIONAL INFO A-97-79 & -80 ARE CLASSIFIED "OPEN--ACCEPTABLE RESPONSE."

AS PREVIOUSLY POINTED OUT BY MR. JAMES HENDERSON OF YOUR STAFF, THE POSTAL SERVICE STRONGLY OBJECTED TO THE NTSB RAISING THE ISSUE OF MAIL IN THE CONTEXT OF ITS PUBLIC MEETING ON THE CAUSE OF THE CRASH OF VALUJET FLIGHT 592, WHEN IN FACT MAIL WAS NOT IN ANY WAY FOUND BY THE NTSB'S INVESTIGATION TO BE A CONTRIBUTING FACTOR. AS EVIDENCED BY THE CAUSE OF THE CRASH, WE CAN CERTAINLY AGREE THAT THE SHIPMENT OF UNDECLARED HAZARDOUS MATERIALS IN AIR TRANSPORTATION IS A SERIOUS PROBLEM THAT NEEDS TO BE ADDRESSED.

HOWEVER, WE DO NOT BELIEVE THE NTSB'S PUBLIC MEETING ON THE CAUSE OF THE VALUJET CRASH WAS AN APPROPRIATE FORUM IN WHICH TO RAISE THE IMPORTANT, BUT UNRELATED, ISSUE OF HAZARDOUS MATERIALS IN THE MAIL. NEVERTHELESS, THE POSTAL SERVICE DOES FULLY RECOGNIZE THE RISK THAT UNDECLARED HAZARDOUS MATERIALS SHIPMENTS, INCLUDING MAIL SHIPMENTS, CAN PRESENT TO AVIATION, ESPECIALLY PASSENGER-CARRYING AIRCRAFT. FURTHER, IT RECOGNIZES & ACKNOWLEDGES ITS RESPONSIBILITIES TO MINIMIZE THE OPPORTUNITIES FOR UNDECLARED HAZARDOUS MATERIALS IN THE MAIL TO BE TRANSPORTED BY AIR. WE TAKE THIS RESPONSIBILITY VERY SERIOUSLY.

FOR THIS REASON, I, AS VICE PRESIDENT, OPERATIONS SUPPORT OF THE POSTAL SERVICE, HAVE ALREADY ESTABLISHED A PERMANENT POSTAL SERVICE HAZARDOUS MATERIALS WORKING GROUP THAT WILL REPORT DIRECTLY TO ME HERE IN POSTAL HEADQUARTERS. I ASSIGNED THIS GROUP THE RESPONSIBILITY OF COORDINATING, INTEGRATING, & STRENGTHENING ALL ASPECTS OF THE POSTAL SERVICE HAZARDOUS MATERIALS PROGRAM & FOR WORKING WITH THE FAA TO ENSURE THAT OUR EFFORTS MEET THE DOT 'S REQUIREMENTS.

IN JANUARY OF THIS YEAR, POSTMASTER GENERAL MARVIN RUNYON ALSO ESTABLISHED A PERMANENT POSTAL SERVICE AVIATION MAIL SECURITY COMMITTEE TO ADDRESS THE CONCERNS ABOUT AVIATION SECURITY STEMMING FROM THE THREAT OF TERRORISTS USING THE MAIL SYSTEM AS A MEANS TO TARGET CIVIL AVIATION. I HAVE DESIGNATED THE CHAIRMAN OF THIS COMMITTEE TO ALSO SERVE AS THE CHAIRMAN OF THE HAZARDOUS MATERIALS WORKING GROUP WHO WILL REPRESENT THE POSTAL SERVICE IN WORKING THE FAA ON THESE TWO IMPORTANT ISSUES. FOR THE REASONS STATED ABOVE, THE POSTAL SERVICE CONCURS IN THE NTSB'S RECOMMENDATIONS A-97-79 THROUGH -81.

ASIDE FROM THE ESTABLISHMENT OF THE POSTAL SERVICE HAZARDOUS MATERIALS WORKING GROUP, MEMBERS OF MY STAFF HAVE ALREADY MET WITH THE MANAGER OF THE DANGEROUS GOODS & CARGO SECURITY DIVISION, FAA, TO BEGIN A JOINT EFFORT TO STRENGTHEN THE POSTAL SERVICE HAZARDOUS MATERIALS PROGRAM & TO WORK TOWARD IMPLEMENTING A NUMBER OF ACTIVITIES SIMILAR TO YOUR RECOMMENDATIONS. FURTHER, MY STAFF HAS MET WITH MEMBERS OF THE FAA'S VOLPE CENTER TO DETERMINE WHAT TRAINING MATERIALS & COURSES THEY HAVE THAT MIGHT BE USEFUL IN TRAINING POSTAL EMPLOYEES & EDUCATING POSTAL CUSTOMERS ON HAZARDOUS MATERIALS.