(The following story by Ari Natter appeared on the Traffic World website on December 8.)
WASHINGTON, D.C. — The Bush administration is trying to close the door on rules for railroad transport of hazardous materials but the plan for industry-led changes may amount to only a brief detour from tougher regulations.
Raising the banner of anti-terror security, critics of the final rule on highly hazardous cargoes say they will urge the incoming Obama administration to sidetrack the regulation and perhaps renew efforts to push the chemicals further from cities.
“Unfortunately, the rule created by the Bush administration to meet the rail re-routing requirement I fought for in the 9/11 law is a weak, industry-friendly measure that won’t ensure that any re-routing will actually take place,” said Rep. Edward J. Markey, D-Mass.
But Markey also stopped short of saying he would immediately seek a regulatory rewrite over an issue that embroiled the railroad industry for a time in the aftermath of the 2001 terror attacks.
“I will be carefully watching the implementation of this law in the coming year and look forward to revisiting the re-routing issue,” he said.
Published Nov. 26 by the Department of Transportation’s Pipeline and Hazardous Materials Safety Administration, the rule seeks to quash efforts by some cities to seize regulatory oversight of the most potentially toxic cargoes railroads carry. Some cities, including Washington, wanted the railroads to avoid population centers altogether, a requirement railroads and the chemical industry said would be enormously costly and result in a patchwork of local rules.
But the DOT made it abundantly clear it has no intention of forcing rail carriers to re-route shipments.
Instead, the PHMSA rule lets rail carriers decide which routes can carry poison inhalation hazards, explosives and radioactive materials.
“We continue to believe that rail carriers are in the best position to select the safest and most secure routes,” the agency wrote. PHMSA gave railroads until as late as March 31, 2010, to implement routing plans.
Railroads are required to collect data on hazardous commodity shipments, identify “practicable alternative” routes, consider information from local and state governments and analyze primary and secondary routes for safety and security risks and then select the most “practicable” route.
The DOT also won’t require carriers to submit their final route selections for approval, a prospect the agency deemed too “resource-intensive and time consuming” and a potential source of shipment delays.
Instead, the agency intends to oversee railroads’ route selections using “all available tools to enforce compliance,” and plans on incorporating review and inspection of routes into its inspection programs.
In issuing the rail hazmat rule three weeks after the national elections, the agency pushed the long-running rail battle into the midst of the gathering controversy over regulations the Bush administration is issuing in its final weeks in office.
The hazmat routing rule is part of a flurry of rulemakings released in the last days of the Bush White House, which, like the Clinton administration and others before it, is pursuing its last chance to make a lasting mark on the regulatory landscape.
Congress may revisit several of the “midnight” regulations released by federal agencies between Nov. 4 and Jan 20, including truck driver hours of service rules and other rail safety regulations. The Federal Railroad Administration also has a rulemaking on railroad tanker car standards in the pipeline.
The hazmat rule also may push the railroad industry to the forefront of businesses concerned with changing policies under an incoming administration they believe will be less friendly to business than the Bush administration.
Critics of the regulation may have an important ally in Vice President-elect Joseph Biden, a longtime Amtrak supporter and advocate of rail safety in his years in the U.S. Senate.
“Quite frankly, we have an abysmal record, an irresponsible record, dealing with rail security,” Biden said in 2005. “One chlorine tanker exploding in a metropolitan area will kill 100,000 Americans. And we have trouble getting Homeland Security to come up with a plan to force these kinds of tankers to circumvent the population areas? Because it costs more money?”
The rule is the Bush administration’s final word in a debate that began shortly after the 2001 terror attacks as local activists and environmentalists called attention to the long trains of tank cars carrying highly toxic chlorine rolling through Washington only blocks from the U.S. Capitol.
In 2004, the District of Columbia tried to ban hazmat trucks and trains from certain parts of Washington. That attempt failed, but efforts to move the trains haven’t stopped.
Though rail carriers ship approximately 1.8 million carloads of hazardous materials a year – including about 100,000 carloads of toxic inhalation hazard chemicals such as chlorine and anhydrous ammonia – more than 99.99 percent reach their final destination without incident, according to the rail industry.
But the rail industry is worried about potentially ruinous liability, and accidents involving hazardous materials have cost hundreds of millions of dollars in damages over the past nine years, according to DOT.
One of the most high-profile incidents occurred in January 2005 in Graniteville, S.C., when a Norfolk Southern train carrying chlorine derailed and released a toxic cloud that killed nine people, injured 554 more, and caused the evacuation of more than 5,400.
The total costs associated with that accident is nearly $126 million, according to the DOT.
That accident, and a string of others, such as an explosive crash south of Louisville, Ky., in January 2007, resulted in calls across the country for stricter rail safety regulation.
“The board of supervisors has long-standing concerns about the proximity of freight trains with hazardous materials to our residential neighborhoods, parks and schools,” the Contra Costa County, Calif., Board of Supervisors wrote in their comments on the hazmat rule.
Shippers and rail carriers had expressed concern that onerous routing provisions could add delays and thousands of car miles to a trip, as well as expensive interchange agreements with rival carriers.
But many said they were pleased with the end result.
“The railroad routing rule … is a good addition to the federal regulations because it provides a uniform national methodology for assessing railroad routes,” Tom Schick, the American Chemistry Council’s senior director of distribution, told Traffic World.
“Dow commends PHMSA for its efforts,” Henry Ward, director of transportation safety and security for Dow Chemical, wrote in comments on the interim final rule, which has been in effect since last June.
The Association of American Railroads said it was still reviewing the rule and evaluating its impact on railroad operations.
“We will continue to work with our partners at the federal, state and local levels and the chemical industry to ensure that these chemicals arrive safely and securely,” the association said in a statement.
The rail industry won an effort to have a safety provision included in the homeland security legislation that mandated the rule. Including the word “safety” has been interpreted to mean factors such as quality of secondary track, the ability of local emergency responders along the route, and the number of additional miles that re-routing would take hazardous cargo should be considered in routing decisions.
Other factors such as the use of interchange agreements and routing decisions that “would significantly increase a carrier’s operating costs, as well as the costs to its customers” should be considered and documented as well, according to the rule.
Critics of the rule, such as Fred Millar, a Friends of the Earth consultant who helped write re-routing legislation for the District of Columbia that was successfully challenged by the Bush administration, called the regulation a “sham.”
“This allows railroads to continue what they have been doing – routing through cities,” Millar said. “The railroads got what they wanted in this rule.”
According to Millar, that includes federal preemption over local and state rules like the one the District of Columbia tried to enact.
That’s an important victory for railroads and shippers trying to avoid patchwork regulations as more municipalities seek to keep hazardous cargo out of their neighborhoods. It suggests any battle over rail requirements now will be fought in Congress and the White House.
“I think the Obama administration is going to say we really need the government,” said Millar. “I think they will try to overturn it and get it back to a sensible homeland security policy.”