Tuesday, June 8, 2010

PTC Comment Response

Last week the Federal Railroad Administration submitted their response to public comments on the final rule on the implementation of positive train control (PTC) installation requirements to the Office of Management and Budget. That final rule was published in the Federal Register in January and a large number of public comments were filed before the end of the comment period on March 16th. The date of publication of that response has not yet been set. That response may be of importance to hazmat shippers as it may shed light on who the Federal Government expects to pay for the huge cost of installing these safety devices. Railroads want to increase the shipping costs for toxic inhalation hazard (TIH) chemicals to recoup the cost of installation. They argue that extensive sections of track where the PTC technology will be required to be installed will be included solely because of those TIH shipments. TIH shippers and users clearly object to such a tax on their operation, maintaining that all of the railroad customers derive significant benefit from these new systems and should be required to share in the cost of implementing those system improvements. This has been playing out before the Surface Transportation Board in a couple of cases between Union Pacific and US Magnesium. The potential settlement between UP and USM along with the response to TIH shipper comments on this rule will have a significant impact on the final decision about who will pay for PTC implementation costs. Just don’t expect a final determination any time soon; too much money is at stake.


fmillar said...

Your readers might want to see the most chemical security-related aspects of the PTC rule:

Only FRA inspectors can stop by railroad offices to see the rerouting information, and FRA suggests that railroads have now rerouted even MORE of the most dangerous cargoes through the HTUAs. The FRA's PTC rule explicitly cites the agency's failure to foresee the route changes and suggests that " the 'dramatic' consolidation of PIH traffic" INTO the major cities recently may have resulted "from the TSA [secure handoff] rule" on urban rail yard storage [p. 2623] and/or from railroad anticipation of the economic costs of the PTC rule [p.2619].

FRA says that railroads might have consolidated TIH routing through the HTUA corridors that already carry passengers in order not to have to install pricey PTC systems on alternative rural lines that were carrying TIH cargoes. FRA also raises an even more drastic " prospect… that Class I railroads will divest lines in order to avoid the PTC mandate" [p. 2623].

"As it happens [FRA says, it] has good reason to be concerned with rail routing of PIH commodities… on the merits of the routing decisions", which have perhaps not enhanced safety and security, but the reverse. FRA also suggests that while the rule requires railroads to consider the use of interchange agreements when considering alternative routes, FRA "has not had the opportunity to verify that this has actually occurred" and suggests that such cooperative work in the public interest between bitter competitor rail carriers is rare.

Clearly, federal oversight here is by design pitifully minimalist. DHS has abdicated from urban rerouting issues. FRA does not have any statutory mandate or process to approve railroad decisions, unlike the US Coast Guard's extensive approval mandates for vessel and facility security plans under the Maritime Transportation Security Act. FRA blusters it intends "aggressive oversight", to "evaluate" -- with undetermined criteria] the railroads' routing choices once they are all made, by April 2010, But FRA says this process may take a very long time, since it has added no new staff for its already overburdened inspection force. Meanwhile, the Obama Administration overall is otherwise engaged.

Most troubling are FRA's statements that they continue to consider security risks as "inherently speculative", compared with the "known safety risks", and that FRA may actively oppose a railroad's prioritizing of security risks in protective rerouting decisions. FRA officials have post-9/11 often asserted that "what is missing here is a threat" from terrorists -- maybe a tweet from terrorists announcing plans to use hazmat railcars as weapons? [See pp 2618-2619]

The federal law does imply that some state and local officials who have an operational "need to know" can pressure to see the secret urban hazmat rerouting analyses and decisions. Many elected officials also feel they have a "policy need to know" whether the federal law is protecting target cities or not, and resolutions have been introduced in St Louis, Cincinnati and Albany NY City Councils demanding "a seat at the table" for the ongoing secret railroad decisions.

Local officials point out that the railroads are making major public safety and homeland security decisions based on secret methods in which each railroad "weights" the very disparate 27 factors as to which are most important. Some railroads are touting their use of the $5 million "routing tool" provided to the railroads by taxpayers and kept on a secret web site, as if the weighting is some quasi-scientific process. Plainly it is inherently political, and this whole secrecy regime is apparently needed for covering up more reckless railroad decisions and yet more examples of government agencies' failures to protect from enormous risk. Is this any way to run a railroad?

PJCoyle said...

For my response to Fred Millar’s comments see http://chemical-facility-security-news.blogspot.com/2010/06/reader-comment-06-12-10-ptc-security.html.

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