Security Concerns Present New Regulatory Challenges

With the latest round of bombings in London and concern about whether U.S. transportation facilities will be future targets, distributors of hazardous materials face additional security regulations at the federal, state and local levels. First, the Department of Transportation (DOT) is planning a new rulemaking on security measures for all hazmat shipments by truck; it is unknown at press time whether that proposal will apply to all placarded loads or some subset of shipments. But routing restrictions, tracking systems, and vehicle and cargo hardening almost certainly will be involved.

Second, the Department of Homeland Security (DHS) recently has reorganized, yet again, and Secretary Chertoff’s statement set out a six-point agenda including “creating better transportation security systems to move people and cargo more securely and efficiently.” Because a federal agency generally can only do two things: grant money and regulate, this likely will mean additional regulations for hazmat shipments in all modes.

It is important for DOT to keep primary responsibility for regulation, however. The Transportation Security Administration (part of DHS) is less organized, has less staff, less experience and considerably less expertise than the DOT in understanding the real-world effects of hazmat regulations. Because of its lack of expertise, TSA delayed three times the criminal background check rules for CDL drivers who want hazmat endorsements, and many states are just now putting procedures in place to implement those requirements.

In addition, state and local governments now are imposing or considering new routing and other requirements for hazmat shippers and carriers. In February, the District of Columbia enacted the Terrorism Prevention in Hazardous Materials Transportation Emergency Act of 2005, which would prohibit certain “ultrahazardous” materials in certain quantities from being transported by truck or rail within a 2.2-mile radius of the United States Capitol building without a permit. CSX Transportation, Inc. filed a lawsuit to enjoin enforcement of the Act. After a defeat in the district court, the D.C. Circuit Court of Appeals overturned the trial judge and ordered a stay of enforcement of the Emergency Act, holding the Act was preempted by the Federal Railroad Safety Act. The case now is back in the district court.

Meanwhile, several other jurisdictions, including Cleveland, Philadelphia, Pittsburgh, Baltimore, Boston, Chicago and the state of California have proposed or are considering proposing restrictions to hazardous materials transportation similar to the D.C. Act. These jurisdictions are watching to see if the D.C. Act will survive before enacting their own proposals.

The District government’s complaint was not that the federal government had not provided regulations, but that the regulations were inadequate to protect the District against a terrorist strike on hazardous materials in transit. The court of appeals said that is not a proper basis for overcoming preemption. At heart, this case is about who decides what are adequate levels of security for hazmat transportation. The law clearly mandates that the federal government should decide, thus avoiding a hodgepodge of potentially conflicting state and local laws on the issue.

Over a decade ago, GAWDA members overcame a federal legislative proposal for prior notification of all hazmat shipments. Now prior notice requirements, along with tracking and escorting shipments, are again under consideration in Washington and in many local jurisdictions. GAWDA’s obligation is to ensure that any new requirements are reasonably justified by the perceived threat and effective in addressing the threat.

Gases and Welding Distributors Association
Meet the Author
GAWDA Government Affairs and Human Resources Legal Consultant Richard P. Schweitzer, Esq., is president of Richard P. Schweitzer, PLLC, in Washington, D.C. Members can reach him at 202-223-3040 and at rpschweitzer@rpslegal.com.