(The following article by John D. Boyd appeared in the January 8 issue of Traffic World magazine. John Tolman is the BLET’s National Legislative Representative.)
The Bush administration gave railroads and shippers a triple dose of new security and safety proposals for hazardous material shipments to start the year as the freight transportation world gears up for potentially larger battles on cargo security.
By proposing new hazmat rules just before the holidays, the Department of Homeland Security and the Department of Transportation barely got ahead of the incoming Democratic Congress, where some lawmakers have criticized the Bush administration’s oversight of railroads and other freight systems and promised to pass tougher standards.
The proposals also started the clock for a quick public comment period so final rules could take effect late this year. Barring congressional intervention or unexpected delays, regulators are in position to control the process to toughen hazmat rules.
At DHS, the Transportation Security Administration said Dec. 15 it would order new levels of monitoring for three types of hazmats – explosives, radioactive cargoes and chemicals that could trigger a toxic cloud over a broad area.
TSA focused on the potential terrorist threat to hazardous cargoes, especially when they sit idle and are near major population centers.
Rail workers and shippers will have to constantly monitor such loads when they are idle, TSA said, and the agency will require new levels of shipment tracking and data reporting. The plan also puts new handoff rules on receivers of those shipments in 46 high-threat urban areas.
“A toxic emission from an attack against a chemical facility or hazardous chemicals in transit is among the most serious risks facing America’s highest threat areas,” said DHS Secretary Michael Chertoff. “We’re going to take a significant percentage of that risk off the table.”
DOT that same day offered a related set of safety proposals requiring railroads to analyze the risk of route options for hazmat loads.
Several cities have taken steps to prevent those shipments from moving within their boundaries, to reduce risks to their populations from an attack or an accident that could trigger a major hazmat release.
That’s a hot-button issue around the country, reaching nearly the doorsteps of the regulatory agencies themselves. A 2005 ban by the Washington city government on rail hazmat routing faces a court test by CSX Transportation over whether only federal agencies can regulate interstate rail traffic.
DOT Secretary Mary Peters said the Federal Railroad Administration and DOT’s Pipeline and Hazardous Materials Safety Administration jointly proposed that railroads determine “the safest, most secure way to move (hazmat) by rail.”
The administration still wasn’t done. On Dec. 22, DHS issued draft regulations for security in and around chemical plants, including assessments of the impact on nearby populations if terrorists attacked the facilities. Those rules would wrap up public comment Feb. 7 and become final April 4.
Most of the transportation and plant security rules formalize steps that much of the rail and chemical industries have already taken.
The Bush administration released the railroad plans in rapid succession soon after DHS unveiled its Secure Freight Initiative, a maritime-focused rule months in the making that was released two weeks after Democrats were swept into power in congressional elections that included sharp criticism of administration security efforts.
Democrats in Congress said the proposed railroad rules would do too little to enhance hazmat security, while union officials said the plans lack important training requirements and whistleblower protections.
The plans have not deterred lawmakers so far.
Rep. Bennie Thompson, D-Miss., incoming House Homeland Security Committee chairman, told the Memphis Commercial Appeal this month he still plans hearings on chemical plant security, and is still concerned about hazmat cargoes moving through urban centers.
“We’re not interested in disrupting commerce, if we can help it,” Thompson said, “but we have to do whatever we do smarter.”
Railroads avoided commenting directly. The Association of American Railroads declined to comment beyond a cautious initial statement. AAR specialists were poring over proposals to give TSA clearer authority to inspect rail operations and put railroads and their employees under new requirements to certify acceptance of hazmat loads, conduct pre-trip inspections for security risks and report suspicious situations or lax security conditions.
Ed Hamberger, AAR’s president and CEO, stressed railroads are required by law to carry hazmat loads, and they took early steps to build an industrywide security plan after the 2001 terrorist attacks on New York and Washington.
But he also said, “Keeping hazardous materials secure will continue to require active involvement and close cooperation among all the players in the logistics chain.”
Hamberger noted railroads do not own the rail cars that haul hazmats, and said “tank car owners, chemical shippers, chemical users and railroads each play a critical role.”
Jack Gerard, president and CEO of the American Chemistry Council, said the manufacturers and distributors of chemicals have invested billions in recent years to boost security. “The surest way to achieve transportation security is to further enhance the partnership between the shippers, carriers and the federal government,” he said.
John Tolman, national legislative representative for the Brotherhood of Locomotive Engineers, told Traffic World after TSA issued its rail security rules, “it’s high time they did this.” He said the Bush administration had long talked about security but “they’ve done the minimal” on rail security issues.
But Tolman said although the rules will hand workers a new mandate to look for and report any security risks, TSA did not list training requirements. “You have to be schooled in what is and isn’t a threat,” Tolman said.
While some parts of the rail system can be made more secure with barriers and other monitoring, “you can’t fence in the right of way along the track” all across the country, Tolman said. “What’ll we do – fence in the whole world of railroading?” he asked.
An official at one major rail line said rail employees already know when something or someone is not supposed to be in the rail yard or along the train, and know how to report it, and said rail lines have various other measures to keep their sensitive areas secure.
But the official also said that as security rules evolve “we want our employees not to become police officers. That is not what they are trained to do; they are trained to know what is going on around the railroad.”
Tolman and other union officials also warned the TSA rules provide no whistleblower protections against company retaliation.
Some industry veterans said the costs could hit the small rail lines hard, as they might not have the personnel on hand to shoulder the new burdens the rules would bring.
But Stephen Sullivan, executive director for the American Short Line and Regional Railroad Association, said the short lines are already doing much of what the regulations would require. “This is kind of a collaborative effort,” he said.
He said 120 short lines handle regulated hazmats and already have designated hazmat experts as the rules call for. And although Sullivan said he was not expecting the new hazmat rules so soon, “we’ve done some war-gaming with TSA and the big railroads” to deal with hazmat scenarios and plans.
Sullivan said short lines would be concerned if new regulation reignited insurance costs. Major lines self-insure for the main part of their operating risk and buy policies to cover excess risks, but Sullivan said smaller companies without a big cash reserve cannot self-insure.
“I think we’ve kind of peaked out on the (insurance) rates,” he said, but if regulation pushed insurance costs up and raised the cost of doing business, at some point more lines could decide the hazmat business does not pay.
Heading the TSA effort is John Sammon, the agency’s assistant administrator for the office of Transportation Sector Network Management, and Gil Kovar, TSNM’s general manager of freight rail security.
TSA has been criticized because it did not address tunnel and bridge security in these rules, for instance. The hazmat threat rules also rely on a narrow federal definition of high-risk hazmat, but it leaves out shipments of flammable fuels or potentially explosive fertilizer compounds.
A veteran of both rail giant CSX and the former Conrail freight network in the Northeast, Sammon said, “Right now we wanted to focus on the highest risk threat from a terrorist attack.”
TSA does not address the risk from incidents such as those that released toxic clouds in recent years with deadly results. Those all occurred from moving train accidents, he said, and that traditionally is under FRA auspices.
TSA determined tightening handling of the three officially designated hazmat categories was the best way to start. That involves monitoring and securing those loads when they are idled, nailing down the shipment handoff between shippers, carriers and receivers to better establish a chain of responsibility, and building a unified database to keep tabs on all the loads nationwide.
The rule does not require GPS tagging, but it asks for comment on ways to track loads automatically in the future. And it seeks comment on whether to expand the list of hazmat categories to watch.
Kovar said although rail companies have been consulted on the rules, companies would feel some “pain” and costs for extra security and reporting procedures.
TSA has pegged the 10-year implementation cost of its rules for railroads at $167 million. But ASLRRA General Superintendent Thomas Streicher said “they have not shared the methodology with us” for how the agency calculated that number. “This document has to be studied in more detail,” Streicher said.
There could be more pain in the final rules.
TSA’s proposal does not include fees or penalties. Sammon said the agency will not impose fees to cover the extra costs of inspections or force rail workers to go through the sort of costly background checks TSA has pursued with hazmat truckers and the air cargo industry.
But the final version will have penalties. “It will not be toothless,” Sammon said.