Hazmat on Rail Sidings Explained
State and local officials often ask me why they see so much Hazmat (HM) stored on rail sidings around the country. In fact, it is common in some industries for shippers to use rail cars for storage in addition to transportation, and thousands of Hazmat (HM) cars are “stored” on railroad and private sidings nationwide. These railroad and private industry sidings are usually adjacent to a chemical facility, fertilizer plant, manufacturing facility or a port. In other examples, sidings and main line track in rural locations are used for storing rail cars awaiting delivery to final destination or transloading into trucks. This article explains why rail cars are commonly used for storing product on shipper and railroad-controlled trackage, and which federal agencies are involved.
Whether the cars on the private siding are considered “storage” or “in transportation” has been the subject of considerable debate over the years. Under the EPA’s Risk Management Program (RMP), “railcars on a private siding [used] as storage tanks until [dispensed for processing] should be considered to be part of [the facility’s] source. If a tank truck is being unloaded and the motive power is still attached, the truck and its contents are considered to be in transportation and not covered by the rule.”
However, the railroads can lease track to the chemical companies and label the resulting railcar storage as "storage in transit,” and leave HM railcars there indefinitely, and continue loading and unloading product as needed. These arrangements are called "leased sidings, storage in transit or storage incidental to transportation." Transportation in commerce begins when a carrier takes physical possession of a product for the purpose of transporting it, and continues until the product is delivered to the destination indicated on a shipping paper. One exception to this general rule applies to rail transportation of HM, which can be considered “in transportation” for purposes of the HMR until it is delivered to a “private track or siding.” This is true, even if the railcar is delivered to its final destination indicated on its waybill.
Such storage of hazmat on rail sidings is usually off the radar screen of local health and safety regulators, unless residents report the same HM railcars parked nearby for months. Examples of this include vinyl chloride rail cars on a siding in downtown Framingham, MA, butane rail cars on sidings in Charlotte, NC, and crude oil rail cars on sidings in Millinocket, Maine.
Transportation officials and state chemical safety officials report that chemical companies are escaping oversight, including federal regulations from EPA, OSHA, and DHS, state and local Right-to-Know laws and local permitting regulations such as NFPA code by making use of railcars for on-site storage and process feed instead of using their own onsite fixed chemical storage containers.
DOT’s Research and Special Programs Administration (RSPA), uncomfortable with the safety implications of these low-oversight arrangements, has led an ongoing rulemaking for many years (HM-223) to clarify the coverage of their regulations on loading, unloading of chemical cars and "storage in transit." In the rulemaking, DOT sought to clarify that they do not have any regulatory authority over railcars on leased sidings and only joint regulation on loading and unloading, so that state and local officials are no longer preempted and are free to bring railcar storage under Right-To-Know regulations.
In fact DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA, formerly RSPA) has just recently ruled on a case in Los Angeles County, California, in which local regulations can be applied. The decision states: “Federal law does not preempt California and Los Angeles County requirements on (1) the unloading of hazardous materials from rail tank cars and (2) on-site storage of hazardous materials following delivery of the hazardous materials to the consignee's premises or adjacent private track” In other words, once a shipment is delivered to a facility, local regulations on HM storage, etc. can be applied as they are not preempted by the HMR.
Rail siding storage is not only limited to chemicals. Fuel additives including propane and butane are used seasonally to adjust fuel octane levels in northern states. Rail sidings are used to store rail tank cars used for fuel blending, usually near pipelines transporting refined fuels. With federal mandates to blend ethanol with gasoline it is now common to see “splash blending” operations set up on rail sidings so that ethanol rail cars can be unloaded into cargo tank trucks for shipment to retail fuel stations.
While hazmat storage on rail sidings is a national issue, the question of assessing the hazards and providing public protective actions fall to local jurisdictions. Since hazmat rail siding storage does not show up in RMP plans, local officials need to do their own due diligence to identify examples where this is occurring in their jurisdictions. During the planning process, Local Emergency Planning Committees (LEPCs) should inventory rail storage examples in their communities and work with the facility managers and railroad officials to mitigate any hazards. It may be some time before the regulations catch up with this long standing practice of using rail sidings for storage of hazardous materials.
 PHMSA Decision in LA County Dec 2015: In accordance with 49 CFR 107.211(d), this decision constitutes PHMSA's final agency action on the applications by SPCMA and Hasa for administrative determinations of preemption as to certain requirements in Chapter 6.95 of the California Health and Safety Code and Titles 2 and 32 of the Los Angeles County Code relating to unloading and storage of hazardous material.