HR 2223 Introduced – Rail Spill Fund

Last month Rep. DeFazio (D,OR) introduced HR 2223, the Community Protection and Preparedness Act of 2017. The bill would establish a Rail Account within the Oil Spill Liability Trust Fund (OSLTF). The bill is similar to HR 5786 that was introduced in the 114^th Congress, but significant changes were made to increase the chances of this bill being considered.

Changes

Section 3 of the earlier bill that added new requirements for rail track inspections has been removed from this version. In its place, DeFazio added §5 that would require DOT to report to Congress on rail track inspections. That report would include an assessment of current {§5(1)}:

• Railroad track inspections, including the frequency of inspections;

• Training provided to railroad track inspectors and related railroad personnel;

• Railroad compliance with Federal track safety regulations; and

• Federal oversight of railroads with respect to track safety

Another change is the addition of a new §3 that would require the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) to complete their rulemaking on “Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains”.

Moving Forward

DeFazio is the Ranking Member of the House Transportation and Infrastructure Committee and thus should be in position to move this bill forward to consideration by that Committee. The earlier bill drew too much opposition from railroads due to the costly track inspection requirements for the Committee to approve the bill. This was almost certainly the reason that the bill was not considered in the last session.

The removal of those track inspection requirements should remove the opposition of the railroads. In fact, there could be a quiet endorsement of this bill by the railroads as it would increase the costs to shippers of flammable liquids thus potentially reducing some of those shipments. This would help reduce railroad liability for accidents involving these hazardous materials. The presence of the Rail Fund in the OSLTF to help fund response training would also reduce calls for additional railroad funding of such training.

The main thing holding up consideration of this bill remains the opposition of the flammable liquid shippers to having to pay for the Rail Fund. That opposition is not as organized as the railroads were in their earlier opposition. That combined with the general Republican opposition to federal regulations may be enough to derail this bill. If the bill is considered by the Committee, the chances of it passing in the House would be much higher than I currently expect it to be.

Commentary

From a hazmat transportation safety perspective, the main problem with the OSLTF remains the limitation of consideration of spill response as a water contamination issue. Continuing to ignore the fire and explosion hazard related to these spills means that this fund will have little or no effect on the planning for, and spending on, responding to the biggest hazard for flammable liquid accidents in or near urban areas.

From a legal point of view, the easiest way to do this would be to either create a new hazardous chemical spill liability fund that would be completely separate from the current OSLTF. That way the new fund could be more appropriately targeted in the scope of emergency response planning and support. From a political point of view that is not going to happen absent a really huge hazmat transportation incident.

This bill tries to take the more politically expedient approach of adding a more generalized hazmat response under authority of 49 USC 5116 for a subset of the OSLTF established as the Rail Fund. The problem with this is that the folks currently administering the OSLTF are experienced and focused on the issues of protecting water from oil spills, not responding to fires and explosions. This involves two completely different sets of planning and response activities.

Having said that, I think that this is probably the most expedient method of dealing with an expensive and complex issue. It is not going to be really effective, but it will be more effective than what we currently have. We have to remember that politics is, at its heart, the art of the possible.