Q. Are the DOT's hazmat security plan requirements being enforced?
A. Yes, regional inspectors of the U.S. Department of Transportation's Pipeline & Hazardous Materials Safety Administration (PHMSA), during their routine inspections of hazmat shipper and carrier facilities handling placarded loads of hazardous materials, are investigating each site's compliance with applicable hazmat security plan development, implementation and training.
Each inspector has a checklist of items that should be included in a DOT hazmat security plan, taken directly from the phrasing of 49 CFR 172.802. For example, the checklist will ask whether the plan includes a security assessment of possible transportation security risks, coupled with appropriate measures to address those risks. Other items on the checklist include personnel security, access to the site, access to the hazmat, en route security, awareness training and, for those people affected by the plan, specific in-depth training on the plan, and operational compliance with the plan.
The in-depth training must include clear elements addressing the company's security objectives, specific objectives for that site, particular employee responsibilities, actions to be taken in the event of a security breach, and the organization's security structure. Of course, records documenting compliance are reviewed.
Specific questions to ask yourself, based on some history of DOT/PHMSA inspections, is whether the plan itself contains each of the elements required in Section 172.802. For companies who may have developed a comprehensive security plan, including the DOT requirements but also meeting U.S. Coast Guard and other agency requirements, be sure that the DOT provisions in your plan are readily identifiable by someone using a checklist to determine compliance.
Also verify that the plan, although perhaps developed initially from a template from company headquarters, has been customized to suit the particular facility being investigated. This should be reflected in provisions identifying specific people, phone numbers, materials and action items unique to that site. If the site has some geographical features or neighbors that are unique, then your plan for that site should reflect those unique aspects.
Confirmation that your plan includes en route security is difficult if you are a shipper, because of limitations on how much your carriers are allowed to share their security arrangements with you under U.S. Department of Homeland Security rules on "Security Sensitive Information" (SSI), but be sure to include something in your plan on this subject.
To the extent reasonable, have at each site the backup information used to develop that plan, even though much of the work may have been done at headquarters. If it is not in the on-site file, be sure to include a reference to the corporate contact person who has it, so the inspector may be satisfied of completeness without having first to write you up, and then have you produce the information as part of your defense in a civil penalty action.
As you will recall, the DOT hazmat security actions were hastily published, requiring relatively quick general awareness training, rapid development of a written plan, and shortly thereafter completion of in-depth training on that plan. DOT inspectors will look at the on-site records, especially for in-depth training on the locally unique features of the plan. Experience shows that especially for plans that were primarily developed at headquarters and were to be implemented at each plant site, record-keeping compliance can be spotty.
Before DOT personnel visit one of your sites, it would be prudent to conduct your own review now against the provisions of 49 CFR Part 171, Subpart I, taking the perspective of a third party who is inspecting the site using a checklist to determine compliance with plan elements, training and training records.
Lawrence Bierlein is a partner with McCarthy, Sweeney & Harkaway, P.C. in Washington, D.C. His practice is devoted to issues involving transportation of hazardous materials. He can be reached at 202.775.5560, [email protected].