The traditional emphasis in regulating hazardous materials (hazmat) transportation by truck and train in this country has been to promote safety by specifying the design of packages and vehicles. But with heightened concern about the proliferation of hazardous materials—including radioactive wastes—has come the realization that there is a limit to the protection that good engineering can offer, and that better risk management strategies are also needed to prevent and mitigate transportation release accidents.
Along with emergency planning and preparedness, the placement of restrictions on routing has become an increasingly popular device for managing the highway and rail risks of hazardous materials transportation. Federal studies conducted in 1985 indicate that at that time there were 513 different state and local restrictions on the routing of hazardous materials for these two modes of transportation, and that there were 136 state and local notification requirements, that is, restrictions that take the form of a statute or ordinance requiring advance warning or periodic reporting about hazardous materials shipments. Routing restrictions also take the form of prohibiting the use of a road, a tunnel, or a bridge for a specified set of hazardous materials.
Restrictions
Other forms that restrictions take include: designations of which routes are permitted; curfews specifying the hours during which routes or facilities are allowed or not allowed to be used for transporting hazardous materials (typically ruling out rush hours or longer daytime periods); licensing or permitting (although these tend to be regional rather than route-specific); and, in the case of certain radioactive materials or other highly hazardous materials, escorts and speed reductions on the routes employed.
Federal regulatory requirements address in specific terms the routing of some of the most worrisome hazardous materials (high-level radioactive materials, Class A and B explosives, and a limited number of gases and liquids that are poisonous when inhaled), and another regulation grants broad authority to states and localities for regulating the use of vehicular tunnels for transporting hazardous materials. But apart from these, there is only one other routing regulation. This is 49 CFR 397.9, which applies to trucking only (there is no comparable rule for trains) and stipulates that "a motor vehicle which contains hazardous materials must be operated over routes which do not go through or near heavily populated areas, places where crowds are assembled, tunnels, narrow streets, or alleys." In 1977, the Department of Transportation (DOT) ruled further that when such a vehicle is traversing a populated or congested area, a beltway or other bypass would be considered the appropriate route.
The vague nature of the language used to state these requirements has no doubt contributed to the fact that there has never been a federal enforcement action under this regulation, and has created an incentive to state and local authorities to derive their own regulations in their own terms. An added incentive for these authorities to look to routing restrictions as a solution to their concerns is that the cost of a few signs (or in some cases, no signs) announcing a routing restriction is far less than the cost of other risk management alternatives requiring an investment in more police and fire personnel, or in additional training and equipment acquisition for improved emergency response.
Transporters complain that it has become difficult and expensive to do business because of the high degree of nonuniformity in the routing restrictions that state and local governments have enacted. This was the most common complaint voiced by industry speakers during the recent congressional reauthorization hearings for the Hazardous Materials Transportation Act (HMTA). Likewise, some states, counties, and municipalities object to being disadvantaged by the routing restrictions imposed by neighboring jurisdictions—or, as in the case of high-level nuclear waste, by the federal government—especially when they are not equipped for adequate emergency response. A textbook case is the battle that ensued in the Cincinnati area between the city and the suburbs when the city moved a few years ago to divert hazardous materials from the interstate highway artery that passes through the city.
DOT agrees that better coordination is a must, and it is currently considering a rulemaking action (Docket HM-203) to rectify the situation for highway transportation. Yet, by having taken the stance that state and local agencies can best determine what routing restrictions are most appropriate for their specific conditions, while failing at the same time to resolve jurisdictional differences or to develop a centralized database of the multitude of different routing restrictions (as urged by the National Transportation Safety Board), DOT has heretofore permitted the turmoil to expand.
Recent developments
Public attention to this state of turmoil was heightened considerably during the past twelve months or so in the wake of two dramatic revelations. First, it was learned that the Department of Defense (DOD) had been routinely transporting an extremely toxic rocket fuel (nitrogen tetroxide, one of the ultrahazardous poison-by-inhalation materials that DOT singled out for special attention in the wake of Bhopal) on crowded Los Angeles freeways. Second, it became apparent that due care was not being taken in the controversial use of special trains to transport damaged reactor parts from Three Mile Island (TMI) through a number of densely populated areas, especially at the point of interchange between the two railways involved.
The upshot of the furor in Los Angeles was a congressional investigation into DOD highway routing practices and DOT highway oversight of this activity. Finding that alternate routes through less populated areas had not been considered, that federal regulations were ineffective, and that DOT technical guidance was inadequate, the investigating committee made a number of recommendations aimed at improving the practice of risk analysis in support of route selection and encouraging the designation of a preferred route system that would minimize interjurisdictional conflicts and not be unnecessarily burdensome to commerce.
The TMI shipments, involving the use of special protective casks on dedicated trains consisting only of cask-bearing cars and run at slower than normal speeds, first made headlines in 1986 when the governor of Nebraska stopped the train at the state border until he was satisfied that better notification would be provided in the future. It claimed the spotlight again when the State of Illinois attempted to levy a fee of $1,000 per shipment for escorting the trains. In 1987, one of the dedicated trains hit an automobile at a railroad crossing in St. Louis (with no injury or damage). Finally, earlier this year, when it was revealed that a non-TMI car was added to a TMI train during a routine switching operation, Senator Danforth of Missouri demanded a halt to any further shipments, launched a federal investigation into the matter, and raised the question of whether federal routing restrictions ought to be placed on other trains that have hazardous materials aboard.
Broadly speaking, four major issues pertaining to routing have emerged in the wake of these developments. The nature and the status of each one are as follows:
- Federal regulations for the routing of non-radioactive materials should be broader in scope and less ambiguous in meaning. As a result of the existing weaknesses, state and local governments have become increasingly active in regulating hazardous materials' transportation routes, and inconsistency rulings have become the predominant means by which federal routing policy is articulated, on a case-by-case basis. This approach has proven to be tedious, sometimes leaving shippers and carriers in limbo for years, and merely serving in many cases as a precursor to litigation. A number of bills have recently been introduced in Congress in an attempt to improve and streamline the inconsistency ruling and preemption process but, given the intergovernmental complexity of the issue, both legal and political, it is unlikely to be sorted out very soon.
- Careful consideration needs to be given to determining the most appropriate scope for federal routing regulations, that is, which shipments need to be regulated, by which mode of transportation, and on which routes. The most effective strategy is to concentrate on the materials that are most hazardous and on the shipment sizes that are most critical, that is, in excess of a given threshold. As far as the mode of transportation is concerned, DOT's attention has been limited to highway routing, as evidenced by the department's proposed amendments to the HMTA in 1987, when it declared that it is neither appropriate nor practical to regulate rail routing. The question of which routes to regulate can be addressed in a number of different ways, ranging from federal designation of a national network of permissible routes to complete autonomy for route selection at the local level. There are also a number of options for the means by which routes can be regulated, ranging from out-and-out prohibitions on certain routes to curfews during critical time periods.
- A balance must be struck whereby a federal regulatory framework is developed that combines the best features of federal control of routing with state and local autonomy, while avoiding the cumbersome inconsistency ruling and preemption process that currently prevails. Agencies at these levels of government are more familiar with local route conditions than DOT, but may lack the resources to perform detailed risk analysis of alternative routes. Even if they did have the capability, DOT would be left with the difficult task of coordinating numerous, independently derived routing regulations among neighboring localities. As long as this situation remains unresolved, concerns about exporting risk from one community to another will continue, and disputes will continue to arise whenever the routing restrictions invoked by adjacent jurisdictions do not turn out to be compatible. One possible resolution is for the federal government to specify the steps that must be followed by a state or local government to fully coordinate any contemplated action involving routing regulations.
- DOT needs to establish standards as to what constitutes an acceptable risk analysis and what risk information is expected to be provided in support of state and local routing regulations. Considering the importance of risk analysis for comparing alternative routes, it is essential that the methods used be rigorous without being difficult and that they be based on the best available data.
The associated probabilities and consequences of the "worst-case" scenarios need to be estimated so that information can be factored into the decision-making process, while the question of how much weight to place on low- probability/high-consequence events when selecting a "best" route is a separate concern that is better left to regulators than to risk analysts.
These routing issues are important and deserve to be resolved, but even more important is the larger issue of the need for a comprehensive, national risk management strategy that also gives due consideration to other options for preventing and mitigating hazardous materials transportation spills, and that fosters cooperation among the different levels of government, among neighboring jurisdictions, and between government and industry.
Theodore S. Glickman is senior fellow in the Center for Risk Management at RFF. He began conducting risk analyses of hazardous materials transportation activities in 1978 at the Transportation Systems Center of the U.S. Department of Transportation.
A version of this article appeared in print in the October 1988 issue of Resources magazine.
