Rail Hazmat Response Bills Introduced in Senate and House

Two weeks ago HR 2074, the Toxics by Rail Accountability and Community Knowledge (TRACK) Act of 2015 and its companion bill, S 1114 were introduced respectively by Rep. Norcross (D,NJ) and Sen. Menendez (D,NJ) respectively. A similar bill S 2858 was introduced on the last day of the regular session of the 114^th Congress. The bills are a response to the 2012 Conrail freight train derailment and toxic chemical spill in Paulsboro, NJ.

Right-to-Know

Section 2 of the bill would establish a requirement for railroads that were determined to be at fault for a rail accident that released hazardous materials to periodically review health assessments that would indicate that personnel exposed to the release “could experience long-lasting or irreversible health consequences” {§2(b)(1)}. If such information became available the railroad would also be required to inform the affected population and offer to renegotiate any settlements based upon the new information.

Civil penalties for failure to comply with these new requirements are set according to the Class rating of the railroad.

Commodity Flow Information

Section 3 of the bill would require the Secretary of Transportation to establish regulations (within 2 years) mandating that railroads would provide current and accurate commodity flow data to “first responders, emergency response officials, and law enforcement personnel in the communities through which the hazardous material is transported” {§3(a)(1)}. The regulations would also obligate railroads to provide assistance for the development of emergency response plans to protect communities “in the event of a railroad accident or incident involving the hazardous material” {§3(a)(2)}.

Movable Bride Requirements

Section 4 addresses the requirements for crossing a movable rail bridge that is showing a red light, the proximate cause of the Paulsboro, NJ derailment according to the NTSB report. It would require the Secretary to establish regulations (within 18 months) for such requirements. The regulations would include inspection training requirements and qualifications for personnel authorized to conduct the inspections. The bill also establishes civil penalties for the violation of those regulations that would vary according to the Class ranking of the railroad involved.

Route Risk Assessment

Section 5 requires the Secretary, in conjunction with the American Shortline and Regional Railroad Association, to “develop a route risk assessment tool for the use of short line and regional railroad carriers” {§5(a)}. This new tool would specifically address any known shortcomings of the Corridor Risk Management System being used by Class 1 railroads.

This section would also require the Secretary, in coordination with DHS (TSA requires the use of the CRMS for route security assessments) to conduct audits of route risk assessments conducted by short line and regional railroads.

Risk Reduction Program

Section 6 would amend 49 USC 20156 by adding a new sub-paragraph to §20156(d)(1) explaining an additional program element for the railroad risk reduction program:

“(T)he use of safety management systems and their associated key principles, including top-down ownership and policies, analysis of operational incidents and accidents, and continuous evaluation and improvement programs.”

Additionally the section declares it to be the sense of Congress the Secretary should include in the definition of ‘a railroad carrier that has an inadequate safety performance’ “any railroad carrier that is at fault for an incident, accident, or emergency involving hazardous materials that has led to a fatality or personal injury, an evacuation, or environmental damage within the last 5 years” {§6(b)}.

First Responder Information

Section 7 of the bill would require the Secretary to develop regulations (within 1 year) to oblige railroads transporting hazardous materials to be able to provide timely and accurate train consists to emergency responders at an accident. It would also require the Secretary to ensure that train crews had information on hazardous materials being transported that was “consistent with, and is at least as protective as, the emergency response guidance provided in the Emergency Response Guidebook issued by the Department of Transportation” {§7(b)}.

Public Education

Section 8 would require the Secretary to develop regulations (within 1 year) establishing the requirement for railroads transporting hazardous materials “to develop, implement, and periodically evaluate a public education program for the communities along railroad hazardous materials routes”. Such programs would include:

∙ Procedures for reporting the release of a hazardous material;

∙ Physical indications of a release of a hazardous material, including a focus on hazardous materials that are most commonly transported in or near a given community;

∙ Methods of communication that will be used to alert the community in the event of a railroad incident, accident, or emergency involving a hazardous material;

∙ Steps that should be taken by community residents to ensure public health and safety in the event of a hazardous material release; and

∙ A discussion of possible public health and safety concerns associated with an unintended release of a hazardous material, including a focus on hazardous materials that are most commonly transported in or near a given community.

Moving Forward

Neither Sen. Menendez nor Rep. Norcross are on their respective transportation committees so it is unlikely that either of these bills will receive consideration at the committee level. This means, of course, that the chance of either bill making to the floor of the respective house is just about nonexistent.

Commentary

There is a lot of good stuff in these two bill, things that could make a difference to first responders and communities responding to hazmat train derailments. If the movable bridge provisions had been put in a separate bill, Menendez and Norcross could probably have convinced any number of congress critters to co-sponsor this bill because of concerns with recent crude oil train derailments. Co-sponsorship by members on transportation committees might have been able to ensure that this bill would get considered.

There is one part of this bill that is problematic at best; the public education provisions in §8. These provisions would certainly be appropriate for personnel that lived or worked near a fixed chemical plant, but are unreasonable when applied to a railroad route hundreds of miles long. The number of people affected would be so large as to be completely unmanageable. Community activists have been trying these education programs around fixed facilities with limited success for years because most people just don’t care.

Besides, since rail hazmat accidents are so rare (they really are if you look at the ton-miles of hazmat transportation) and the ones that do occur seldom affect a significant number of people (most accidents are in non-urban areas), DOT would never be able to complete a cost benefit analysis that would justify the cost of the regulations.