Fred Millar posted a reply (see: "Blog Comment – Railroad Hazmat Route Selection Rule") in the on-going discussion about the Railroad Hazmat Route Selection Rule blog. He makes a couple of interesting points.
Designed Mainly to Preempt
That was almost certainly not the intent, though it certainly has that effect. This rule is required under the Implementing Recommendations of the 9/11 Commission Act of 2007. Section 1551(e) of that act requires that PHMSA "must require rail carriers of ‘security-sensitive materials’ to ‘select the safest and most secure route to be used in transporting’ those materials, based on the rail carrier's analysis of the safety and security risks on primary and alternate transportation routes over which the carrier has authority to operate" (page 20755 of the rule). This rule appears to be following that congressional mandate.
The problem is that PHMSA is requiring the railroads to use outmoded and inadequate technology to document their security reviews. The conduct and documentation of these analyses will be time consuming and resource intensive. Written documentation of the results makes it almost impossible for a regulatory agency to review and make a judgement on each of the routes used to transport these chemicals.
What PHMSA should be working on is a computer model to allow the documentation and submission of that analysis to PHMSA for automated review. The DHS Top Screen is an example of how that could have been accomplished. Of course the route safety and security analysis is a bit more complicated than what the Top Screen is designed to accomplish. This means that the design work will take a bit longer to accomplish.
If PHMSA is working on developing such a process, then the current rule makes a lot more sense. It would get the railroads working on the data collection portion of the problem while PHMSA is getting the computer system set up.
Secret from the Public
This is the underlying problem of security in a free society. An open society wants to have deliberations and decision making open for general scrutiny and debate. Security argues for secrecy and limited involvement. In this case, with the severity of the consequences of a successful terrorist attack on a railcar carrying one of the selected chemicals, I am afraid that I have to come down on the side of secrecy. The routes and the selection process have to be kept from public view.
The newly introduced Chemical Facility Anti-Terrorism Act of 2008 has a loophole that allows society to catch the most egregious attempts to use that legitimate secrecy to circumvent the security process. They mandated the inclusion of "employee representatives" in the security process and added specific whistleblower protections. Their idea was that union representatives would not have the same level of desire to put money over security.
Adding such provisions to this rule would not catch all of the situations where money ruled over security, but it would catch the worst cases. The only thing that would work better would be for aggressive review by the oversight agency. We’ve already discussed that problem.
"I Don’t Think Anyone Has the Answer Yet"
The final quote in Fred Millar’s comment is the most appropriate. I agree with Broadman, I don’t think anyone has the answer yet. This rule is certainly not the final answer to the problem. It is barely a first step. It is one step of many that we will apparently be seeing this year. They come a little late, but fortunately not too late. We have not yet had a terrorist detonate a 40,000 pound chlorine bomb in one of our cities.
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