HR 5368 Introduced – Rail Hazmat Security

Last week Rep. Norton (D,DC) introduced HR 5368, the Save Our Communities from Risky Trains Act of 2016. The bill would require the Department of Transportation to issue regulations concerning the security issues related to the shipment of certain hazardous materials by rail through urban areas.

Sensitive Security Materials

Section 2(b) of the bill would require the Secretary to designate materials as ‘sensitive security materials’ if “transporting the material in commerce poses a significant risk to national security due to the potential use of the material in an act of terrorism". In making the determination the bill would require the Secretary to ‘consider’ a specific list of types and quantities of hazardous chemicals, including

• A highway route-controlled quantity of a Class 7 (radioactive) material;

• More than 25 kilograms of a division 1.1, 1.2, or 1.3 explosive;

• More than one liter per package of a material poisonous by inhalation;

• More than 13,248 liters (for liquids or gases or more than 13.24 cubic meters for solids) of hazardous materials in a bulk packaging;

• A select agent or toxin;

• A quantity of hazardous material that requires placarding.

Railroad Route Selection

Most of the remainder of §2 of the bill deals with railroad route selection for shipments of sensitive security materials. It includes requirements for:

• Compilation of route and storage pattern information {§2(c)};

• Rail transportation route and storage pattern security analysis {§2(d)};

• Alternate route and storage pattern security analysis {§2(e)}; and

• Mandate to use the route and storage pattern that “best reduces the risk, including consequences, of a terrorist attack on, or derailment” {§2(f)};

Moving Forward

Norton is a senior member of the House Transportation and Infrastructure Committee and thus could be considered to have sufficient political pull to have a bill considered in Committee. Unfortunately, with the controversial nature of this bill and the extensive impact it would have on the railroad and chemical industries, it is highly unlikely that this bill will ever receive consideration. If it were to be considered it would certainly be defeated on, at a very minimum, a party-line vote; though I suspect that there would be significant opposition from some Democratic members.

Commentary

This bill attempts to address a very real problem that I have been mentioning almost from the first post in this blog. The shipment of extremely hazardous materials like poisonous by inhalation hazard (PIH) chemicals by rail through urban centers make for a high-profile target for terrorist attacks. Such attacks would not be simple to carry out, but the potential consequences of a successful attack could be serious in the extreme.

The current regulations that attempt to deal with this particular problem (49 CFR 172.820) are a solution that please no one. They address the rail shipments the most hazardous segment of the list of materials that this bill calls for the Secretary to consider in establishing the list of security sensitive materials. It requires railroads to compile commodity data, and conduct route and alternative route analysis and use that analysis to “select the practicable route posing the least overall safety and security risk”.

The efficacy of the current rules in preventing the shipment of these highly hazardous materials through High Threat Urban Areas (HTUA) is questionable, to say the least. A major reason for this is that cities grew up around the railroad infrastructure in this country and major train shipment routes inevitably go through these HTUA. Economic routes around these areas are frequently not available and even where they are shippers and destinations for these chemicals are typically located within these areas.

Changes to the current regulations could improve the efficacy of the solution, but require an honest dialog on the actual risks imposed by both accidental releases and potential terrorist attacks on chemical shipments as well as the real economic costs and benefits of further restricting where these chemicals may be shipped.

Norton’s bill is not part of that honest dialog. Her overly broad listing of hazardous chemicals and ridiculously small quantities is unrealistic in the extreme and only ensures a broad opposition to the bill. Her simplistic call for routes that “best reduces the risk” ignores both the complexities of risk reduction and risk transference as well as the very real economic consequences that have to be taken into account in any such risk reduction analysis.

Finally, Norton’s bill ignores one of the central flaws in the current regulations, the lack of an effective enforcement mechanism. There is no way that a railroad inspector has the time or the resources to evaluate the route analysis and comparisons conducted by a railroad. Even if the regulations were to require railroads to submit their route analysis and selections to the Federal Railroad Administration for approval, that agency does not have the manpower or computational resources to effectively evaluate the multiple potential routes involved.

And, because of the potential economic costs involved, any attempt at enforcement action would result in lengthy court fights over analysis details. This is especially true with respect to the analyses required in the Norton bill, because there is no authority provided for the Secretary to establish standards for what must or even should be considered in the analysis. The current rules at least provide a list of 27 specific items that must be considered during the analysis, though significantly a methodology for weighting those factors is missing.

Norton’s bill is dead in the water and it does nothing to contribute to the discussion about the problems with the current route analysis and selection regulations.