We are recommending that the Department of Transportation maintain the placard system as it is now.” With these words, spoken at the Congressional Fire Services Institute dinner on April 7 in Washington, DC, Department of Homeland Security Secretary Michael Chertoff brought to conclusion a conflict between two separate federal laws addressing the safety and the security of hazardous materials shipments. Two laws with commendable and similar goals had created a conflict that significantly upset fire service leaders.
The federal hazardous materials transportation safety law calls on the Secretary of Transportation to establish regulations for the safe transportation of hazardous materials. The law requires that the Secretary (actually it is the Department of Transportation that makes the regulations) to designate materials as hazardous when transporting them poses “an unreasonable risk to health, safety and property.” Further, the law requires the department to create regulations for the safe transportation of hazardous materials. It is upon this basis that the Hazardous Materials Regulations commonly familiar to firefighters are created.
“Safe transportation” also must include security. Interestingly, this section also requires the Department of Homeland Security to consult with Transportation when issuing a security regulation or security order that affects the safety of hazardous materials transportation.
The Aviation and Transportation Security Act, enacted in the aftermath of the 9/11 attacks, gives the Transportation Security Administration (TSA), a part of the U.S. Department of Homeland Security (and not Transportation), broad authority over security in all modes of transportation. TSA has the power to identify a security threat to any mode of transportation, develop a measure for dealing with that threat and enforcing compliance with that measure.
The potential conflict between these safety and security mandates grew out of a March 2003 rule issued by DOT’s Research and Special Programs Administration requiring hazmat shippers and transporters to develop and implement security plans. Thereafter, the two agencies began considering measures to enhance the security of rail shipments of materials that present a “toxic inhalation hazard” (TIH). These are gases or liquids known to be so toxic that they pose a health hazard in the event of a release during transportation. Their uncontrolled release can endanger significant numbers of people. About 10 million tons of these materials are shipped by rail each year. Their extreme danger makes it easy to imagine that a terrorist attack against these materials in an urban area could place significant numbers of people in danger.
Last August, they published a joint notice seeking comments on the feasibility, costs and benefits of implementing additional security requirements for these shipments. A proposal to require removing “identifying marks, names, stenciling, placards or other markings that could help a terrorist or criminal identify a target” from rail tank cars carrying TIH materials has crystallized the debate. Currently, all such rail shipments must be placarded.
Placards, of course, are critical to the fire service scheme for responding to hazardous materials release incidents. Chief John Eversole, chairman of the International Association of Fire Chiefs (IAFC) Hazardous Materials Committee, noted that we have been building the placarding system for more than 40 years. The system has been adopted by the United Nations and is used worldwide.
Today’s sophisticated hazmat emergency response system begins with placards, Eversole explained. Firefighters across the nation are trained to recognize placards as a quick way of initially identifying a hazardous material. Placards are the first important step in alerting the public to a potential danger. And, while the threat of a terrorist attack on a rail (or other mode) hazardous materials shipment is a legitimate concern, the fire service already is responding to accidental spills daily across the country.
The IAFC took a strong stance in response to proposals to limit the use of placards. In response to the August request for comments, it said, “IAFC opposes the termination or diminution of the current placarding system…until such time as a replacement system has been demonstrated to be effective, fully funded, and both the fire and emergency service and law enforcement personnel have been fully trained in its use.” In other words, don’t impose new security requirements that might compromise safe emergency response until an equally effective alternative has been put into place.
It is understandable that homeland security agencies might conclude that hazmat placards create an increased security risk by marking targets for terrorists. However, as Chertoff noted, this risk must be balanced against the needs of people who respond to derailments and other accidents that happen every day, and the need to understand the hazard that they are facing.
Security improvements may enhance safety, and vice versa. However, the fire service must remain vigilant to ensure that laws, regulations and other federal mandates for security requirements don’t compromise their emergency response and public safety responsibilities. There must be vigilance at both at the national level, on issues such as placarding, and at the local level, where site-specific security plans must accommodate the need for emergency response of all types. The amicable resolution of a conflict between the two laws in this instance illustrates the value of such vigilance.
Steve Blackistone, a Firehouse® contributing editor, is an attorney and a member of the Bethesda-Chevy Chase Rescue Squad in Montgomery County, MD.
