Tuesday, July 28, 2009

PTC NPRM and TIH Chemicals

As I noted last week, the Federal Railroad Administration (FRA) recently released a notice of proposed rule making to establish the procedures and standards that railroads would use to implement the Positive Train Controls required by the Rail Safety Improvement Act of 2008 (RSIA08). As promised, I will try to outline how this proposed rule might affect shipments of toxic inhalation hazard (TIH) chemicals. PTC Requirements Through RSIA08 Congress required that covered railroads had to install PTC systems by 2015. This aggressive schedule is based in large part on the results of two accidents; the 2005 Graniteville, SC chlorine-release collision between two freight trains and the 2008 Chatsworth, CA collision between a freight train and a passenger train. Both of these deadly collisions would have clearly been prevented if there had been PTC systems on the trains involved. As a result Congress enacted RSIA08 that would require PTC systems to be installed on all intercity and commuter passenger rail lines and “on freight-only lines when they are part of a Class I railroad system, carrying at least 5 million gross tons of freight annually, and carrying any amount of poison- or toxic-by-inhalation (PIH or TIH) materials” (74 FR 35954). This would mean that almost any Class 1 rail line that carried PIH/TIH chemicals would be required to have a PTC system installed. At the same time, a Class 1 freight line that did not carry PIH/TIH and did not share the line with passenger service would not require the installation of PTC systems. Later in the NPRM FRA clearly states the potential problem associated with the confluence of PTC requirements and TIH shipments during the discussion of §236.1005:
“The RSIA08 mandate, which entails an expenditure of billions of dollars, most of it nominally because the lines in question carry PIH, presents additional enormous incentive for the Class I railroads to shed PIH traffic and, further, to concentrate the remaining PIH traffic on the fewest possible lines of railroad” (74 FR 35964).
Later the FRA addresses this issue and goes back to the issue of Congressional intent and concludes that it “does not believe that the Congress intended an implementation that would create substantial incentives to drive PIH traffic off of the railroads or concentrate it in such a way that large urban areas would see an increase in volume above that expected using normal, direct routing of the shipments” (74 Fr 36965). To prevent the problem of railroads self-limiting the PIH shipment routing, the FRA establishes a routing baseline of 2008. Thus, FRA would require {in §236.1005(b)(2)} that “that the determination of Class I freight railroad main lines required to be equipped be initially established and reported as follows using a 2008 traffic base for gross tonnage and determine the presence of PIH traffic based on 2008 shipments and routings” (74 FR 35965). Thus, essentially all Class I freight lines that had carried TIH/PIH chemicals in 2008 will be required to be equipped with PTC systems. PIH Rerouting Requirements The FRA solution to the PIH-PTC issue certainly seems to ensure that the railroads do not use this rule as justification to stop carrying PIH chemicals on existing routes and push PIH shipments off onto highway carriage which would be less safe and less secure. But, in yet another example of the Law of Unintended Consequences, this rule will interfere with the intended operation of a final rule published last November by the Pipeline and Hazardous Material Safety Administration (PHMSA); Enhancing Rail Transportation Safety and Security for Hazardous Materials Shipments. Among other things, that rule required railroads to collect information on PIH shipments; current routes and alternative routes for those shipments. Then they would be required to select the safest and most secure routes practicable for those shipments based on a complex analysis of those routes. Appendix D to 49 CFR part 172 provides a listing of 28 factors that railroads will be required to use to evaluate the safety and security of routes. One of those factors is the relative cost of the different routes. If an alternative route for a class 1 railroad were to take the PIH shipment over a freight rail track that had not previously carried PIH chemicals then the selection of that route would incur the additional cost of equipping the line with a PTC system. While the current route would also require implementation of PTC requirements, the railroad would not have to consider those costs as part of the route selection analysis. The costs for the current route would have to be borne regardless if PIH chemicals continue to be carried on that line. This would mean that there would be no PTC cost avoidance by changing routes. This problem could be avoided if the FRA were to include provisions in the proposed rule to allow for changes to the 2008 based route determination to be modified by changes to PIH chemical shipment routes introduced between before October 1st 2010, if that route determination was made under provisions of 49 CFR §172.820. This would allow class 1 railroads to remove routes from initial PTC coverage if it were moving PIH chemicals from that route to an alternate because of a re-routing decision. Obviously the alternate route would be considered for PTC coverage requirements under the provisions of this rule. Small Railroads and PIH Under the proposed rule Class II and Class III freight railroads are not generally required to implement PTC technology on purely freight lines. The current proposed rule does not provide for a PTC exemption for Class II and Class III operating on passenger routes because “FRA has not been able to define conditions that would apparently be suitable in every case” (74 FR 35972). The FRA does request comments on whether it should consider including in the proposed rules provisions requiring smaller railroads carrying “PIH traffic on PTC equipped track through a densely populated area” (74 FR 35973) on freight only lines to equip its train with compatible PTC equipment.

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