Comments on Rail Security and Safety Rules – 5-16-08

There are currently three rules recently published in the Federal Register dealing with the security and safety of rail transportation of various hazardous chemicals. All three rules are in the comment period. Generally speaking the comments made on each of these rules are posted on the Regulations.gov web site. The last review was posted on 5-12-08 (see: "Comments on Rail Security and Safety Rules – 5-9-08").

PIH Tank Car Rule

Comments are to be submitted by June 2, 2008. There were no new comments on this docket.

Route Security Analysis Rule

Comments were to be submitted by May 16, 2008. A significant number of comments were added on that date. Comments were received from:

The Board of Supervisors, Contra Costa County, CA

• The Contra Costa Board of Supervisors objected to the railroads being given too much leeway to "reject alternative routes for economic reasons". They suggested that economic factors should be added to the evaluations only after all other factors are considered.

• The Contra Costa Board of Supervisors wanted more consultation with local government agencies required rather that requiring the railroads to request information from those agencies. They felt that this should consultation should also extend to sharing the final analysis with the affected jurisdictions and an appeals process for those agencies if they disagreed with the analysis.

Dow Chemical Company

• Dow Chemical disagreed with the annual route analysis review, noting that the 9/11 Commission Act of 2007 specified a review interval of three years.

• Dow Chemical suggested that the rule should exempt essentially empty railcars containing only residue of PIH chemicals from the requirements of this regulation. They noted that the hazards associated with these cars was substantially reduced and thus did not make them terrorist targets.

• Dow Chemical suggested that the FRA should use its statutory authority under49 U.S.C. § 333 to convene meetings with railroads and their customers to work out agreements for alternative routes across different railroad lines. The current rule requires that railroads consider the use of interchange agreements to effect a more secure alternative route.

California Public Utilities Commission

• The California Public Utilities Commission wants all hazardous materials listed in 49 CFR Section 172.101. They suggest that all of these chemicals present a potential terrorist target when transported by rail.

• The California Public Utilities Commission wants the economic assessment of routes to include the economic consequences of a release. The point in particular to the target potential of spills into critical waterways in California that could deny drinking water to large portions of the state.

Friends of the Earth

• The Friends of the Earth 19 page comment document can be summarized as expressing the belief that the rule does nothing to require re-routing, does nothing to protect urban populations (particularly those in High Threat Urban Areas), and is nothing more than a good-old-boy-network agreement to protect railroads from having to deal with re-routing legislation and regulations of various cities counties and states.

Appeal of Adverse Rail Routing Decisions Rule

Comments are to be submitted by June 16, 2008. No comments have been posted since the proposed rule was published.

Commentary

The issue of routing of railcars transporting highly hazardous chemicals, especially Toxic Inhalation Hazard (TIH) chemicals is a very emotional, highly charged political issue in many areas. The use of a rail car of chlorine or anhydrous ammonia as a large chemical munition in a terrorist attack on an urban area is a nightmare scenario for many security planners.

While there are many chemical facilities that are much more of a potential target, most local governments are willing to live with that risk since they derive benefits from those facilities; taxes and jobs provide a good economic incentive to work with those facilities. Railroads on the other hand pay relatively few taxes to local governments and are directly responsible for veryfew jobs.

Add to that the fact that most of these railcars are transiting the local area and may not provide any direct benefit to the local economy, and it is little wonder that local governments want little to do with having to perhaps respond to these railcars as weapons of mass destruction. It should be of no surprise that many jurisdictions are trying to get railroads to route these chemicals around their citizens.

Economic chaos would result if any legal jurisdiction could dictate what cargos could be carried through their boundaries. This is a clear case where the "promote interstate commerce" clause of the constitution should be brought to bear. A clear rule specifying how rail routing decisions should be made with respect to these highly hazardous chemicals is certainly required. Unfortunately, this does not appear to be that rule.

The rule as published requires nothing more than a paperwork drill. The fact that the railroads do not have to get their analysis approved or even verified by the regulatory agency insures that this is a paper tiger. The promised review by visiting inspectors is of little consequence.

I’ll be overly generous and grant that the railroads will attempt to complete the required analysis. The problem is that there are no real tools provided for accomplishing this gargantuan task. Even if only the 27 listed factors are taken into consideration, this is not an analysis that can be done on paper for routes of more than a couple of miles in length.

The only way that a route analysis could be used as a tool to compare the safety and security of alternative routes would be if there were numerical values assigned to the risk factors at various locations along the route. This can realistically only be done by using a sophisticated computer model. Until the federal government, and the FRA in particular, develop such a model any route analysis that is being done will be just a paperwork exercise required to placate courts along those routes.

Tags: Chemical Facility Security, Rail safety and security rules