PUBLIC SUBMISSION | As of: February 12, 2009 Tracking No. 805b8f9a Comments Due: May 16, 2008 Late comments are accepted |
Docket: PHMSA-RSPA-2004-18730
Hazardous Materials: Enhancing Rail Transportation Security for Toxic Inhalation
Comment On: PHMSA-RSPA-2004-18730-0201
Hazardous Materials: Enhancing Rail Transportation Safety and Security for Hazardous Materials Shipments
Document: PHMSA-RSPA-2004-18730-0204
Friends of the Earth - Comments
915 South Buchanan Street
No 29
Arlington,
VA,
22204
COMMENTS BY FRIENDS OF THE EARTH ON THE INTERIM FINAL
RULE, “HAZARDOUS MATERIALS: ENHANCING RAIL TRANSPORTATION
SAFETY AND SECURITY FOR HAZARDOUS MATERIALS SHIPMENTS;
RAILROAD SAFETY ENFORCEMENT PROCEDURES; INTERIM FINAL RULE
AND PROPOSED RULE”
49 CFR PARTS 172, 174, AND 209
DEPARTMENT OF TRANSPORTATION
PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION
FEDERAL RAILROAD ADMINISTRATION
Docket No. PHMSA-RSPA-2004-18730 RIN 2137-AE02
[Page numbers citations below are to the Federal Register version of the Interim
Final Rule from April 16 2008, “Implementing recommendations of the 9/11
Commission Act of 2007” – p. 20755 ff.] http://edocket.access.gpo.gov/2008/E8-
8185.htm
Introduction: Friends of the Earth’s comments for the record on the Interim Final
Rule, which will become effective June 1, 2008, can perhaps assist in showing
some ways forward for future, more promising rail security regulation. As
advocates of protective hazmat re-routing, post-9/11 we were active in Washington
DC and 10 other major cities which introduced ordinances to mandate such re-
routing, for through shipments both by rail and by truck. Some 25 media stories
showing lack of effective rail security helped prompt a national debate and the
eventual introduction in Congress of national re-routing legislation, which in turn led
to this unfortunate rule. We commented very critically in the Washington DC
public meeting on February 1, 2007 and later electronically on the earlier proposed
rule from December 21, 2006. Our four previous submissions are in the federal
docket 18730 at the new federal website:
http://www.regulations.gov/fdmspublic/component/main?
main=DocketDetail&d=PHMSA-RSPA-2004-18730
We unsurprisingly found the current Interim Final Rule did not change to eliminate
any of our fundamental objections.
We were warned: Over a few years we have been fairly explicitly warned about the
Bush Administration agencies’ politicized intentions regarding this rule. Three
remarkable examples will make this clear:
1. Sometime in 2006, in an undated “Synopsis of a Briefing” memo in the
obscure US Department of Transportation (DOT) rulemaking docket (Docket
18730, Document # 118), the DOT representative to a meeting with representatives
of nine railroads and the Association of American Railroads (AAR) candidly
reassured the railroads, describing the federal agencies’ quite politicized
rulemaking intentions to extend explicit federal preemption in routing matters and
the minimal governmental oversight the rule would entail:
“HM-232 …PHMSA [Pipeline and Hazardous Materials Safety Administration] and
FRA [Federal Railroad Administration – both part of DOT] are working on this [new
routing regulatory proposal] now with DHS [Department of Homeland Security]. It
addresses the comments received as a result of the [DOT’s] request for
comments August 16, 2004.
This is being promulgated in order to address the concerns of the D.C. judge [US
District Court Judge Emmet Sullivan] that wanted to halt routing through D.C.
Hopefully, this will reinforce the preemption law and help keep the carriers out of
court and able to run your trains over your best established routes. It will require
that commodity data be available on a route specific basis for each calendar year.
The data needs to be available within 90 days of the end of the previous year. The
data will include the total number of shipments on the route segment, along with
the number of origins and destinations along the route segment. They [the
agencies] are not going to ask that this data be submitted, just available upon
request.” [Fuller context in APPENDIX ONE below.]
2. In the DOT’s own April 2006 Regulatory Assessment and Regulatory
Flexibility Analysis, the agency baldly states:
“… re-routings as a result of this proposed rule will be infrequent and so [we] have
not attempted to estimate the additional [railroad] cost incurred by them.”
(p. 23))
3. And FRA head Joseph Boardman was similarly even more publicly
blunt in describing the rule during a recent DOT/DHS national conference call for
reporters, fending off their persistent inquiries on the likely re-routing impacts of
the rule in protecting target cities:
“Federal Railroad Administrator Joseph Boardman, who made the announcement
[April 16, 2008] …, said any changes in shipment routes would depend on the
mandated analysis. He refused to predict how many, if any, routes would be
eliminated or moved.
‘This is about routing, not rerouting,’ Boardman said. ‘Anybody that is predicting
no change, I think is premature. My expectation is that some routes for hazardous
materials will be safer routes.’ " [our emphasis]
[“Feds adopt routing regs for deadly rail tankers” Inside the Bay Area, by Erik N.
Nelson, Staff Writer 4 16 08]
Furthermore, Mr. Boardman’s quote illustrates a key obfuscating mechanism
which the railroads, the AAR, and the Bush Administration’s federal agencies
employ in systematically trying to discredit the value of protective re-routing, as we
will discuss below. In their rhetoric and in this rule, they deliberately
conflate “security” and “safety” issues, and relentlessly suggest publicly and in
this regulation that re-routing for security will most likely lead to unacceptable
safety risks.
In a key passage FRA outlines concisely its continued reliance on corporate
shippers and railroads, the agency’s refusal to act strongly (absent an immediate
known terrorist threat in a given city) to protectively re-route around target cities,
and its own weighting of transportation safety issues over security, a leftover pre-
9/11 agency stance identical to that of the railroads, and which has decisively
shaped this regulation:
[20761] FRA has met with the rail carriers [in Section 333 meetings, other
stakeholders excluded] to discuss modeling and routing options, and has held
separate meetings with rail shippers of chlorine and anhydrous ammonia. Further
meetings with the rail carriers are anticipated. Projects agreed to through the
conference may need the approval of the STB in order to be implemented.
In light of these efforts, and in the interests of system safety,
we will not ban movement of the specified hazardous materials through
densely populated or other sensitive areas. Rerouting of hazardous
materials shipments over longer, more circuitous alternative routes,
most of which traverse urban areas at some point, could actually
increase safety and security risks. Rerouting to avoid certain areas
could add hundreds of miles and several days to a hazardous materials
shipment. Those additional miles and days could be on rail
infrastructure less suitable to handling hazardous materials. Such
rerouting could also result in additional switching and handling of
rail cars and more time in rail yards. Longer distances and transit
times, increased car handling, and more time in rail yards contribute
to an increase in the safety risks to railroad workers and the public
inherent in rail transportation in general and the transportation of
hazardous materials. As well, military installations, power plants, and
other potentially attractive terrorist targets are purposely located on
or near rail lines rather than in major metropolitan areas. Such
facilities could be placed at greater risk if the Federal government
were to require rerouting of highly hazardous materials to avoid
densely populated areas. Finally, we would suggest that transportation
security is enhanced if terrorists cannot determine whether or when
hazardous materials may be rerouted. Such flexibility, provided its use
is not made
[[Page 20762]]
public, decreases the likelihood that a target will be where a
terrorist may expect it to be.
Moreover, the 9/11 Commission Act does not direct the Federal
government to mandate specific rail routes for security-sensitive
materials; rather, Sec. 1551 of the Act specifically directs the
Secretary of Transportation to ensure that the final rule requires rail
carriers to select the safest and most secure route to be used to
transport security-sensitive materials based on a safety and security
assessment of the current routes utilized and practicable alternative
routes.
We continue to believe that en route safety and security measures
will be most effective when tailored to a railroad's specific
circumstances and operations. Rail carriers are in the best position to
assess security risks along the full length of the routes available to
them and to target enhanced safety and security measures to identified
vulnerabilities. Appendix D to the rule lists the wide variety of
factors that a carrier must consider in choosing the safest and most secure route.
Railroad insiders have suggested what we consider the only way to make sense of
the railroads’ seemingly counter-productive determination to avoid any serious
government-mandated protective re-routing. The underlying political-economic
aim of railroads and their Bush Administration and Congressional supporters is to
block any actions in the homeland security area that might set a legal precedent
that could be used by “captive shippers” who are actively seeking that
Congress “re-regulate” the railroads. A long period of the North American
railroads’ operating without effective government oversight is threatened by captive
shippers issues, the current desires of the railroads to seek massive government
funding for capacity expansions, and scattered grassroots fights over expansion of
rail capacity and over intermodal terminal sites, noise and pollution, and
congestion.
At the most basic level of regulatory strategy, DOT notably locates the new
regulation within the existing “Safety and Security Plan” section, Subpart 1 of the
federal hazmat [hazardous materials transportation] regulations in 49 CFR Part
172. And for an implementation mechanism, DOT explicitly refers to its existing
and also minimalist post-9/11 hazmat Security Plan regulation HM-232, which like
the routing rule grants maximum “flexibility” to the railroads and has no standard of
adequacy. The new rule vaguely states: “railroads’ security plans must include
measures to minimize the safety and security vulnerabilities identified through the
route analyses” [20763] The lack of federal standards in these hazmat
transportation security regulations means no accountability, no way of knowing
whether we are more secure as a result of the regulations, and no serious
governmental oversight possibilities.
The industry and FRA conflation of security with safety has been muddled still
further by the railroads’ success in lobbying Congress to include “practicable”
commercial considerations, so that the astonishing new list of 27 “factors” (see
Rule, Appendix D) an individual railroad must consider when evaluating alternative
routes is augmented by commercial factors including existing “customer
relationships”. (see #3 below)
The core routing provisions of the 9/11 Commission Act (Section 1551) might look
at first glance to be a new national consensus on protective rail re-routing:
"The Secretary of Transportation shall ensure that the final regulation requires
each railroad carrier transporting security-sensitive materials in commerce to
annually review and select the practicable route posing the least overall safety and
security risk in accordance with this section." ---- 9/11 Commission Act, Section
1551
In fact, however, by lumping together security, safety and commercial
practicability as major factors (notably, unweighted in the legislation), the provision
allows the current US DOT to grant the railroads so much “flexibility” (in the
current routing rule) as to virtually guarantee a federal rubber stamp on the status
quo of rail hazmat routing through all 60 target cities of cargoes which the federal
regulators have previously characterized as “potential… weapons of mass
destruction.”
During the national debate the Association of American Railroads (AAR) says we
have had on re-routing since 9/11, the railroads have often said that because of
their liability concerns, they were willing to enhance security by protective re-
routing where possible, but not if ordered by a local High Threat Urban Area’s
ordinance, only if the federal government ordered it. Then they used their lobbying
clout to ensure a weak federal law that would allow a correspondingly weak federal
routing regulation.
So despite the large increase in public and media concern about the massive
consequences of potential terrorism using freight rail cargoes, sensible protective
re-routing will not be achieved anytime soon, if ever. Most likely re-routing will
come not until after a terrorist attack (successful or not) [as the Governor of New
Jersey lamented in a post-9/11 TV interview] using such hazmat cargoes the
railroads have pre-positioned for such possible deadly use. A similar lack of
government foresight and preventive action explains why the ten chlorine tank cars
sitting in plain view at the Blue Plains Water Treatment Plant in Washington DC
were not removed, and the facility switched to the non-catastrophic alternative
chemical (bleach), until after the al Qaeda attack on the Pentagon on 9/11.
On the other hand, despite the dampening impact intended by this rule, it is likely
that widespread public pressure for protective re-routing will continue. Indeed,
CSXT Railroad recently declared in the federal docket that since 9/11, the US
public has reconsidered what is an acceptable risk:
“The support of the public, and of many policy makers, has greatly eroded since
9/11. Now the railroads are harshly criticized for transporting these [TIH, or “ Toxic
by Inhalation” poison gas cargoes] …Our company’s reputation has been
assailed…[and] vilified in the media. TIH cannot simply continue to move by
railroad indefinitely…Even if the potential for ruinous liability were somehow
erased, the widespread social disapproval of TIH transport by rail would remain.”
http://dmses.dot.gov/docimages/pdf101/456287_web.pdf
CSXT is being carefully misleading here – the key issue in the current debate is
the unnecessary routing of through shipments of poison gases and other
dangerous rail cargoes into target cities, which re-routing advocates maintain can
be remedied by routing onto non-target routes. The railroads are routing such
cargoes through all our major cities still, even without being able to buy adequate
insurance, as they have declared in Congressional testimony during the last three
years. One can only conclude that this is a situation the insurance industry
calls “moral hazard”, meaning that the railroads, quite aware of potentially massive
numbers of deaths and property losses in a terrorist attack using rail cargoes, are
counting on just the kind of huge federal taxpayer bailout that the airline industry
received for their massive losses in the aftermath of the 9/11 attacks.
***********************************************
Brief Legislative and Regulatory Background:
For many years after 9/11, the Bush Administration promoted in the freight rail
security area, as in mass transit and chemical facility security, only voluntary
action by corporations to beef up security. This hands-off stance contrasted with
much stronger regulatory mandates imposed on the airline passenger and port
security areas, and critics in and out of Congress often highlighted how federal
attention and funding went disproportionately to the regulated areas.
Congress has also found voluntary measures insufficient regarding chemical
facility security, where similar attractive targets exist, and mandated federal
security measures. In the rail area, voluntary measures have very recently been
seen as insufficient by FRA regarding the railroads’ too-leisurely voluntary plans to
upgrade rail tank car design, so FRA has recently proposed regulations to replace
the whole fleet in the near future. The rail industry argued to Congress that their
ownAAR-led industry efforts and the previous purely voluntary “ Supplemental
Security Action Items” requests made by DOT and DHS of the rail industry were
yielding dramatic results in improved security, but Congress did not find these
arguments compelling.
The railroads had been feeling the heat [cf. CSXT’s quote above] from numerous
critics of routing of through chemical shipments into major target cities. So the
new Congressional leaders were seen by alarmed railroad supporters as likely to
regulate in this area.
DOT hurriedly put forward on December 21, 2006 a Proposed Rule on routing, but
it was widely seen as quite weak and a too-obvious attempt to pre-empt the new
Congress slated to take over in January 2007 . Much of that proposed rule has
survived, however, in this new Interim Final Rule. The newly Democratic Congress
eventually enacted the 9/11 Commission Act (signed by the President on August
3, 2007, with Section 1551 on routing [including railcar storage]), both responding
to widespread post-9/11 public pressure (media, ordinances, etc) and explicitly
rejecting a totally voluntary approach in freight rail security, but mandating only
quite weak federal involvement in rail routing.
The legislative history of the re-routing bill HR 1 and the subsequently enacted “
9/11 Commission Act” was starkly uneven regarding re-routing, with a
compromise House bill gaining bipartisan approval in two House committees and
on the House floor, but a Senate bill with somewhat stronger mandates was
soundly defeated on the floor. Railroad positions prevailed in much of the final
conference committee- enacted bill.
The Act said a new DOT rule should be “based upon” the 2006 DOT-proposed rule,
but also mandated ways in which the new rule should go beyond it. Congress
explicitly added some important concepts and mandates, such as for railroads to
consider interchange agreements in order to accomplish re-routing, and explicitly
defining “routing” as including interim storage of the covered chemicals (poison
gases, explosives and radioactive cargoes – the later DOT rule did not extend
coverage to Liquefied Petroleum Gas but did explicitly include anhydrous
ammonia) in urban railyards and sidings. Overall, however, the Act was not
strong enough to provide a decisive national mandate for re-routing that would be
immune to further wholesale weakening by subsequent DOT rulemaking, as
outlined below.
[US DHS, with its Transportation Security Administration, has been relegated to a
junior partner relative to the long-established DOT/FRA in rail security regulation.
DHS is not central to the rail routing regulations, but instead has taken on the
narrower task of trying to beef up physical security in urban railcar storage, some
of which would be necessary even if through shipments were re-routed. US GAO
has recently testified (GAO-08-651T) in Congress that, while DHS reports it has
done vulnerability assessments in eight major target cities with poison gas rail
corridors and site visits to some 300 rail facilities nationwide, DHS efforts to
improve freight rail security “are still largely in the early stage”. GAO identified
serious “challenges” for DHS including devising standards and performance goals
and deploying an adequate force of inspectors. DOT is supposed only to consult
with DHS on rail security routing matters.]
Summary Critique of the April 16, 2008 Interim Final Rule:
These regulations not-so-subtly endorse and support the dangerous urban hazmat
routing status quo. They are seemingly designed, however, to convey a false
sense of security regarding the federal effort involved, rather than effect serious
security risk reduction. The Bush Administration, along with the US railroads,
have for years vigorously opposed local target city protective re-routing efforts,
although a Federal District Court in 2005 upheld the path-breaking re-routing
ordinance (enacted on a 10-1 vote in the Washington DC Council) as legal and not
preempted by the Federal Rail Safety Act. The Administration and CSXT railroad,
however, stubbornly continued their legal challenges to the DC ordinance and
reportedly threatened other concerned cities with similar lawsuits. Ten more major
US target cities and two states (NY and TN) eventually introduced routing
ordinances but did not enact them, waiting to see how the lawsuit against the DC
ordinance would fare. [The new rule now has made the legal case moot.]
And now the railroad-friendly Administration is misleading the media and the
public, suggesting these proposed DOT regulations are “requiring railroads to route
hazardous materials” in a way that will promote homeland security risk reduction.
In fact these regulations are instead devised mainly (1) to preemptively crush
protective city and state regulations on re-routing, (2) to keep at-risk citizens in the
dark by smothering in yet more veils of official secrecy the documents showing the
grave potential chemical release risks to our cities and the lack of progress in
reducing these risks, (3) to spare the US railroads from any inconvenience or even
minor expense in having to cooperate actually to re-route through hazmat cargoes
onto available alternative routes, (4) to deploy a non-regulatory approach which
disguises the absence of any federal standard for risk reduction, the absence of a
credible federal oversight role, the absence of any real role for state and local
officials, and the absence of any transparency or accountability.
1. Preemption of non-federal laws. The rule is explicitly and strongly
preemptive and designed to discourage any future state and local re-routing
legislation. There is a real legal problem, however, for the railroads in the newly
proposed DOT “routing” rule. In many respects these “regulations” offer so
much “flexibility” to the railroads as to be virtually non-regulations, in which the
alleged new “standards” for adequacy in security risk reduction are either very
vague or unspecified. It remains to be seen if judges will look favorably on this
kind of non-regulation as really “occupying the field” of security regulation and
therefore able legally to preempt conflicting local and state laws.
The DOT rule’s unsubtle bias against re-routing is clear in its explanation, using
the “merely shift the risk” rhetoric identical to that of the railroads, for why federal
preemption is needed:
[20767] As we have indicated elsewhere in this rule, rerouting of hazardous
materials to avoid densely populated or sensitive areas may well
increase safety and security risks. Moreover, routing restrictions or
prohibitions enacted by states or local governments transfer safety and
security risks to other areas but do little to achieve enhanced safety
and security for the rail transportation
[[Page 20768]]
system as a whole. We note that virtually every urban and suburban
jurisdiction in the United States has a population density that is a
matter of concern in planning for and regulating hazardous materials
transportation; if all of the jurisdictions located on or near rail
routes were to enact routing restrictions applicable to the rail
transportation of hazardous materials, such transportation would come
to a virtual standstill. The provisions adopted in this interim final
rule will reduce the overall risks posed by the movement of explosive,
PIH, and radioactive materials by rail, without imposing an undue
burden on transportation.
2. New secrecy measures. The broad “expansion” of secrecy with a
new category of “Chemical-Terrorism Vulnerability Information” (CVI) designations
proposed by the companion DHS rail security regulation, and corresponding SSI
(“Sensitive Security Information”) secrecy regimes for virtually all new
documentation in the DOT proposed regulation, means the key rail security
evidence (both vulnerabilities and available alternatives) will be carefully kept away
from the public, and available only to those few officials whom the railroads and US
DOT decide have a “need to know”. Citizens and public officials will continue to
lack information, e.g., from US DHS’s many target city vulnerability assessments,
from the railroads’ own security plans under the earlier HM-232 rule, and from the
individual railroads’ route analyses and route selections under this rule, so we will
never be able to judge progress or lack of same in hazmat rail security. It will
be “trust us” forever.
3. Minimization of High Threat Urban Area (HTUA) rail hazmat re-routing
that might inconvenience the railroads. A close reading of the proposed DOT
regulation reveals that it makes it as easy as possible for a railroad to continue to
avoid re-routing. The regulation sets out a long series of 27 new “factors”, many of
which are totally non-security-related, which railroads MUST consider in future
selection of “safest and most secure routes”. This mandatory process makes it
very unlikely that any protective re-routing, especially any involving interchanging
cargoes with another railroad, would occur.
It is noteworthy that, presumably using these factors, no railroads have voluntarily
re-routed around any of the 60 major target cities since 9/11. The only analogous
development we can cite is that reportedly for the few days after 9/11, when
officials feared quick follow-on attacks on available US targets, government and
railroad decision-makers forced the most dangerous poison gas railcar cargoes off
the rails and into some kind of safe haven storage. Shipments later resumed with
no discernible protective re-routing.
DOT says re-routing must be based on each individual railroad’s own
considerations of factors
involving security AND safety AND “commercial practicability”: “As
discussed in the
proposed rule, ‘commercially practicable’ means that the route may be
utilized by the
railroad within the limits of the railroad’s particular operational constraints,
and
further, that the route is economically viable for the specific commodity, route,
and
customer relationship” (p. 31, DOT’s Regulatory Assessment, in the federal
rulemaking
docket).
In short, the key flaw in this Rule is that the federal government will not force
one
railroad to “interchange” its most dangerous cargo over to another railroad to
go around
a target city. The overall result of this generous federal grant of “flexibility” is
entirely
predictable. As DOT fully expects and astonishingly states in the Regulatory
Assessment:
“…re-routings as a result of this proposed rule will be infrequent and so [we]
have
not attempted to estimate the additional [railroad] cost incurred by them.”
(p. 23, DOT’s Regulatory Assessment)
4. Deployment of a thoroughly non-regulatory approach. The main
mechanisms employed by DOT here are interlocking: the absence of any federal
standard for risk reduction, the absence of a credible federal oversight role, the
absence of any real role for state and local officials, and the absence of any
mechanisms for transparency or effective accountability.
This is very largely a “faith-based” rule, as opposed to deploying a vigorous
regulatory
program. Throughout DOT emphasizes its reliance on the railroads: “we
expect that carriers
will make these decisions in good faith, using the financial management
principles generally
applied in other business decisions affecting safety and security”. [20761]
DOT will “expect a
rail carrier to make an informed decision, balancing all factors and the best
information
available.” [20756] DOT will “expect railroads to make conscientious efforts
to develop
logical and defendable systems [for route analyses and route selection].”
[20766]
DOT has decided regarding freight rail security, it is clear, to speak softly,
since it does not intend to carry a big stick, in contrast to the federal regulatory
regimes imposed in other homeland security areas such as airlines, port security
and border security.
Key Features of the Interim Final Rule that will make re-routing virtually
impossible:
1. The DOT rule leaves the individual railroads to make all key decisions,
and DOT takes a hands-off regulatory role, except rhetorically. This stance
contrasts starkly with that of the US Coast Guard, which has beefed up its staff for
the Congressionally-mandated review and approvals of the security plans for
roughly 7500 vessels and 7500 on-shore port facilities in its maritime security
regulatory regime. The Coast Guard also forces all parties in its numerous port-
specific Area Maritime Security Committees to cooperate openly and regularly in
coordinated efforts to reduce security risks.
DOT does not contemplate beefing up its already understaffed rail security
inspection and enforcement workforce, and cannot hope to substantively review
more than a handful of the routing analyses and route selection documents from
the 7 major railroads (in multiple major target cities) and 100 short line railroads
carrying the covered hazardous cargoes. The few DOT reviews that do occur will
no doubt focus entirely on whether the paperwork even exists, as has occurred
regarding the DOT’s previous Security Plan regulation.
In the Interim Final Rule discussion DOT states:
[20765] We are not implementing a submission and approval process for
security plans and route analyses. The review and approval of hundreds
of security plans and analyses would be extremely resource-intensive
and time-consuming. Moreover, the 9/11 Commission Act does not provide
for an approval process for route selections made by rail carriers.
During FRA's normal inspection process, inspectors will review security
plans, route analyses, and route choices for compliance with applicable
regulations to ensure that the chosen route is the safest and most
secure practicable route as supported by the analysis done by the
carrier. If the inspection identifies deficiencies in the route
analyses, security plan, or manner in which the plan is implemented,
the deficiencies will be addressed using FRA's existing
[[Page 20766]]
enforcement procedures. Inspectors will have the discretion to issue
notices of non-compliance or to recommend assessment of civil penalties
for probable violations of the regulations. As indicated above, FRA may
require a rail carrier to use an alternative route if the carrier's
chosen route is found not to be the safest and most secure practicable
route available.
Immediately after rejecting any “more prescriptive approaches”, DOT nonetheless
does assert that it intends
“…to aggressively oversee railroads' route analyses and route selection
determinations and will use all
available tools to enforce compliance with the rule. As the agency with primary
responsibility for railroad safety enforcement, FRA will incorporate review and
inspection of route analyses and selections into its inspection programs. FRA
inspectors may offer suggestions for modifying or improving the analysis or make
changes to a route if the route selection documentation or underlying analysis is
found to be deficient. If an inspector's recommendations are not implemented,
FRA
may compel a rail carrier to make changes and/or assess a civil penalty. Further,
if the carrier's chosen route is found not to be the safest and most secure
practicable route available, FRA may require the
use of an alternative route. [20756]
These assertions of a potentially vigorous federal regulatory pressure are
compellingly belied by various other indications current and historical:
• DOT does reserve hypothetically the right to override a
railroad’s “deficient” route selection and even though the agency has said it will do
so only in the most exigent of cases, this possibility raised much concern among
railroads. So DOT obligingly also published a companion proposed rule in the
same April 16, 2008 Federal Register [20774-20778] in which at industry request it
laid out an elaborate set of procedural safeguards for appeals by industry to any
such pending or decided DOT override. The main problem remains how could the
agency determine what is “deficient”. Notably, there is no such appeal process
offered for state and local officials or citizen groups aggrieved by railroad routing
decisions.
• The rule sets out no federal standard for (nor even any guidance on) the
adequacy of railroads’ routing analyses and selection – so any federal challenge to
routing analyses and decisions will be subject to endless litigation by the
railroads. [This approach is consistent with DOT’s HM-232 Security Plan
regulations promulgated earlier, in which DOT also highlighted its “basic approach
in HM-232 of leaving ultimate hazardous materials routing decisions to the rail
carriers.” ]
• FRA’s record is of weak enforcement capabilities and a long history of
snugly relations with the railroads, as the New York Times vividly documented in a
Pulitzer Prize-winning 2004 series by Walt Bogdanich.
• The rule says FRA will be the only enforcing agency: the agencies
perhaps marginally more inclined to enforce stringently, DHS/TSA [Transportation
Security Administration] and DOT/PHMSA, are explicitly cut out of any
independent enforcement role, only allowed to try to inject themselves in some
kind of “cooperation” with FRA as the lead agency.
• DOT expects enforcement needs to be minimal – no new resources
have been asked for by DOT. There was a DHS review process originally
mandated in Section 1444 of HR 1, to be funded at $2 million per year for 3 years,
but this was dropped completely in the final Section 1555.
• DOT expects the additional scrutiny of routing documents to add only
minimal burdens to existing FRA inspections. Based on FRA’s record in the
Security Plan regulations overall, the agency can be expected occasionally to cite
paperwork violations regarding routing documents, but levy no fines at all. (See
Prine)
• Even if railroads find security problems along their current routes, they
may continue to use them if they add “mitigating measures” they deem make the
route secure enough – in their own judgment. These are decisions many will think
need to be made by public security officials.
Clearly, if an alternative route, after
analysis, is determined to be the safest and most secure practicable
route, the carrier would either designate it as the primary route or
identify and implement mitigating measures to improve the safety and
security of the analyzed primary route. Each carrier will be required
to use the practicable route posing the least overall safety and
security risk, based on its analysis. [20762]
2. DOT’s rule virtually metastasizes the likely impacts, and never attempts to put
limits on the impacts, of the 9/11 Commission Act’s unfortunate basic
compromise provisions which allow economic practicability to be decisive in
routing analyses and outcomes:
In this
interim final rule, we are adopting a requirement for rail carriers to
identify and analyze all practicable alternative routes, rather than a
``commercially practicable'' route as proposed in the NPRM. We note in
this regard, however, that the identification of an alternative
practicable route must necessarily include a determination of its
commercial practicability. Congress recognized this by including in
Sec. 1551(d) a requirement for the alternative route analyses to
include the potential economic effects of using an alternative route.
Accordingly, we expect rail carriers to address whether a route is
economically viable in light of, but not limited to, market conditions,
legal and regulatory requirements, and the economics of the commodity,
route, offeror, and consignee. A practicable alternative route is one
that may be utilized by the railroad within the limits of the
railroad's particular operating constraints and, further, is
economically viable given the economics of the commodity, route, and
customer relationship. The question of commercial practicability must
be reasonably evaluated by each rail carrier as a part of its analysis
based on the specific circumstances of the route and proposed traffic.
If using a possible alternative route would significantly
[[Page 20761]]
increase a carrier's operating costs, as well as the costs to its customers, the
carrier should consider and document these facts in its route analysis.
3. DOT could have interpreted the 9/11 Commission Act in a very different way,
setting up a tough federal regulatory program with real standards, designating
stringent oversight, etc., but would have been risking backlash from the railroads,
de-regulated since 1980. So the agency in this rule has established the most
minimal government “regulatory” role, in an impressively-crafted series of
interlocking decisions:
a. The fact that DOT will not take possession of route analyses and
selection documents means these documents will not be accessible through FOIA
requests, which removes one potential external mechanism for accountability.
b. Individual railroads are left to analyze and select routes. DOT admits
this is difficult to implement and to “oversee”. The rule does not even specify any
common format for the railroads to use in their no doubt complex and perhaps
bewilderingly different route analyses and route selection documents, which
makes any oversight virtually impossible either by DOT or by other federal bodies
such as Congress or the Government Accountability Office. The analyses, DOT
furthermore says, could involve methods which are “quantitative, qualitative, or a
combination”.
c. Cooperation among railroads (e.g., the utterly normal “interchange
agreements” which would be vitally necessary for most of the genuine risk-
reduction re-routing arrangements that could be achieved around major target
cities) must, pursuant to the weak language of the Act, be “considered”, but is not
mandated by DOT. Each railroad must analyze possible alternative lines, but only
the ones “over which it has authority to operate” (as explicitly allowed in the Act).
Congressional drafters were aware that mandating cooperation and interchanges
among railroads would be necessary for re-routing, but railroads won weakening
language that renders the probability of this happening as virtually nil. The rule
does leave some ambiguity regarding a railroad’s using its trackage rights to re-
route:
[20761] As we acknowledged in the NPRM, in many cases, the only alternative
route in a particular area may be on another carrier's system. A rail
carrier would not be obligated to analyze an alternative route over
which it has no authority to operate. Likewise, in some cases, no
alternative route will be available; in those instances, no alternative
route analysis would be required. This is particularly true in the case
of regional or short-line railroads that are often the only rail
carriers in a given geographic area. However, as discussed below,
carriers must consider the use of interchange agreements when
identifying practicable alternative routes.
When an alternative route is available, the carrier must analyze
that route and document its analysis, including the safety and security
risks presented by the alternative route, any remediation or mitigation
measures in place or available, and the economic effects of using the
alternative route.
Under arrangements known as ``trackage rights,'' it is not uncommon
for a carrier to conduct train operations over a rail line that is
owned, dispatched, and maintained by another carrier. Such arrangements
typically grant the trackage rights tenant little or no control over
the track and associated infrastructure, including many of the factors
set forth in Appendix D. In completing the route analysis required by
this interim final rule, a carrier may identify specific risk
mitigation measures that are outside its ability to accomplish. Because
it is essential that safety and security measures be coordinated among
all responsible entities, it is incumbent upon the tenant carrier to
work with the owner of the track to evaluate the vulnerabilities and
identify measures to mitigate the risks. If measures required by this
interim final rule cannot be implemented because another entity refuses
or fails to cooperate, the carrier must notify FRA. As stated in the
Compliance and Enforcement section of this interim final rule, FRA
retains the authority to require use of an alternative route until such
time as identified deficiencies are mitigated or corrected.
d. Instead of proposing a new federal standard, therefore, for cooperation
among railroads and for adequacy of security risk reduction, DOT resorts to what it
calls “institutionalizing an assessment process” and “prescribing uniform
assessment criteria” [20762]: offering in Appendix D a list of 27 new “factors”
each individual railroad must consider. This list conflates wildly disparate factors
involving security and safety. Commercial “practicability” has been omitted from
the new Appendix D list of 27 factors and now is seen as a kind of major
independent mega-factor on a par with safety and security.
One indication of DOT’s struggle to think outside the box of its traditional role in
transportation safety is the very nearly unchanged Appendix D in the Interim Final
Rule.
In this interim final rule, we are adopting the list of factors as
proposed in the NPRM, with modifications for consistency with
requirements of the 9/11 Commission Act. Specifically, we are adding
high consequence targets, as defined in Sec. 1551(h)(2) to the list of
factors that must be considered.[20766]
In the new Appendix D, of the 27 factors that must be considered for routing:
a. 1-11, 16, 19, 20, 22, 24-26 are safety factors
b. 12-15, 17-18, 21 and 27 (perhaps) are security factors
c. 23 and 27 (primarily) are economic factors
There is no precedent we can find for this approach, namely, lumping together very
disparate variables which are virtually impossible to put into any kind of sensible
comprehensive assessment methodology, in the existing academic literature
on “catastrophe avoidance routing.” A leading expert in this field bluntly states
that of course “it all depends on the weighting” of the factors.
Significantly, DOT does not even try to rank these factors, as asked by the
explosives industry [20766], and does not (yet) even offer any guidance [e.g., in
other chemical risk regulatory programs such as under EPCRA, the Clean Air Act
Amendments of 1990 (Section 112 r) and Pipeline Safety] on what they admit will
be the crucial weighting decisions, leaving these to each railroad in a completely
non-transparent process, guaranteeing maximum bias toward the status quo and
no accountability.
e. DOT and DHS did agree with industry “how these factors are weighted
and used is an extremely important aspect of an overall safety and security risk
assessment methodology”. So they concluded that some “weighting”
methodology with a federal blessing would be useful to railroads as they decide on
routing selections. This is mentioned explicitly in the rule. [20766]
For Fiscal Year 2005 DHS unabashedly gave a $5 million grant to an allegedly
independent organization – the Railroad Research Foundation, whose president is
also president of AAR. DOT/FRA apparently has the federal agency
project “oversight”, and reportedly AAR’s spokesperson Nancy Wilson is project
manager. DOT has not involved environmental or state and local or environmental
stakeholders in “tool” development. DOT expects the tool [which we expect to be
an extremely technically challenging effort to produce a pseudo-scientific-looking
methodology for “balancing” the 27 factors] to be available sometime in 2008.
Again, the likely outcome is utterly predictable: the railroads since 9/11 have
NEVER voluntarily re-routed while presumably considering these factors, since
their own “weighting” biases have -- in every single case -- meant that business-as-
usual triumphed, and reckless routing has continued through 60 major target
cities. The only partial exception is very revealing: the “voluntary” CSXT re-routing
around their photo-op line, the “I-95 line”, one of their two lines through Washington
DC, after years of citizen and media pressure. In the DC court case (see “CSXT v.
DC” documents at www.oag.dc.gov ), CSXT said they would refuse to interchange
its most dangerous cargoes and use the nearby Norfolk Southern alternative route
around DC, through small towns like Luray VA. They would send these instead
on “their next available CSXT route”, a long ludicrously more dangerous, looping
route through the target cities of Cincinnati, Cleveland, Buffalo, Syracuse, Albany
and finally south through the NY City metro area to Northern New Jersey
destinations. We presume CSXT is in fact using this routing as a public relations
necessity, in order to avoid what had become their iconic “photo-op line” which
featured ominously photogenic chlorine tank cars running just four blocks in front
of the US Capitol Building
f. The DOT rule leaves no significant role for state and local officials: they
can only supply information on local threats, but have no institutionalized power to
influence decisions, much less any veto [20759]. DOT and the railroads continue
to be very stingy about sharing even hazmat commodity flow information with data-
starved local officials, and certainly never with the public, even though the
individual chemical cargoes are clearly placarded for all to see. [One suspects
that it is the proprietary security of the information which is the overiding reason for
this withholding of information which the railroads have readily available in their
operations computers] :
The City of Cleveland, Ohio, suggests that we revise the proposal
in the NPRM to require rail carriers to share the commodity data with
local governments responsible for the geographic areas through which
hazardous materials are transported. We agree that state and local
governments should have access to such information, provided access to
the information is limited to those with a ``need-to-know'' for
transportation safety and security purposes, and further provided that
such information may not be publicly disclosed pursuant to any state,
local, or tribal law. Because of the security sensitivity of the
commodity data, it is not appropriate for it to be broadly disclosed to
government or private entities. We note that AAR Circular OT-55-I
provides for disclosure of certain commodity flow data, upon request,
to local emergency response agencies and planning groups. At a minimum,
such information is to include rank-order identification of the top 25
hazardous commodities transported through the community. [20759]
In a starkly revealing contrast, moreover, DOT proposes, regarding urban storage
of hazmat railcars (which HR 1 and the Act defined as part of “routing”), a very
different mechanism to prevent any risk-reducing change in the current dangerous
storage patterns, which mechanism was suggested by ACC and accepted into the
Interim Final Rule by DOT. That is, DOT will give all corporate parties a veto
during mandated consultation on chemical railcar storage issues. [20764]
g. The DOT rule’s “enhanced” secrecy measures for hazmat security
eliminate both any outside pressure for accountability and any of the
Congressionally-mandated Right-To-Know mechanisms available in similar
chemical facility risk situations. There is no thought that an informed public has
the right to know what routing decisions have been made or to influence the
results.
h. In its minimizing cost-benefit defense of the rule, instead of using as
their benefit measure (as other security regulations have done) the large death
tolls and enormous multi-billion dollar costs of a major terrorist attack that the rule
might help avert (e.g., the 9/11 attacks in 2001 that killed 3000, or the 1995
Oklahoma City truck bombing that killed 168), DOT used a recent chlorine
accident releasing one railcar, the 2005 Graniteville SC accident that killed 9
people, in total estimated by DOT as costing a mere $126 million. [ 20769]
This again perhaps illustrates a clueless agency’s conflation of security with
safety issues, or some kind of agency denial of the real possibility of a successful
terrorist attack using hazmat. But more likely it serves only to be more
commensurate with, and justify somehow, the very small investment that this
virtually non-regulation will demand from the railroads and the government. See
the tiny costs of the rule outlined at 20769.
The cost benefit analysis again shows the DOT basically punting the hard routing
decisions over to the railroads, allowing that these decisions will
require “judgment” and necessarily be “subjective”, displaying a series of
regulatory abdications and rhetoric which overall do not take seriously the need to
protect target cities:
Estimating the security benefits of the new requirements is
challenging. Accident causation probabilities can be estimated based on
accident histories in a way that the probability of a criminal or
terrorist act cannot. The threat of an attack is virtually impossible
to assess from a quantitative standpoint. It is undeniable that
hazardous materials in transportation are a possible target of
terrorism or sabotage. The probability that hazardous materials will be
targeted is, at best, a guess. Similarly, the projected outcome of a
terrorist attack cannot be precisely estimated. It is assumed choices
will be made to maximize consequences and damages. Scenarios can be
envisioned in which hazardous materials could be used to inflict
hundreds or even thousands of fatalities. To date, there have been no
known or specific threats against freight railroads, rail cars, or tank
cars, which makes all of these elements even more difficult to
quantify. Security plans lower risk through the identification and
mitigation of vulnerabilities. Therefore, rail carriers and the public
benefit from the development and implementation of security plans.
However, forecasting the benefits likely to result from plan
implementation requires the exercise of judgment and necessarily
includes subjective elements. [20769]
i. The DOT routing rule, at the suggestion of Dow Chemical, exempts
from coverage any hazmat railcar storage on private track, private sidings, offeror’s
or consignee’s facility [20759-60]. So state and local officials can still regulate
safety and security in some ways in these facilities. No jurisdiction is doing so to
our knowledge. Most officials do not even know the distinction between “private
track” and “railroad track” – storage on the latter is preempted by the DOT rule –
not where these types exist in their jurisdictions.
j. This rule is designed to be very cheap for railroads [see 20770]. The
estimated cost for data and analyses for the 100 small railroads ($3-20 million
revenue annually) is estimated by DOT to average “$2776.70/year – not
significant”. The total costs are estimated at $831,000/yr for information and
record-keeping.
Overall, the whole impact and costs of this exercise in federal non-regulation are
tiny: for the new proposed DOT rail security program, DOT’s Regulatory
Assessment estimates costs to all railroads at $19.4 million total over a 20-year
period. As for the estimated burden on the government: “No additional inspection
time [by FRA inspectors] will be required to comply…” DOT guesses railroads are
already spending between $45m-$495 million on “safety AND security”. DOT
tellingly does not even attempt to separately estimate the two costs.
The counterpart DHS proposed “chain of custody” regulation, for hazmat railcar
storage in cities, offers some useful, if very belated, measures for beefing up
physical security, but even its larger scope ($162 million cost to industry over 10
years) is tiny compared with post 9/11 federal security efforts in aviation or ports.
The DHS-proposed measures, moreover, arguably offer much smaller risk
reduction benefits than re-routing the railcars to avoid cities altogether, and DHS
makes no attempt to compare these types of benefits.
As the Security Chief of the London Transit Authority usefully and forcefully
warned US security officials after four simultaneous bombs in 2005 killed about 50
Londoners, “We had 7000 cameras in our system, and they did not prevent a
single attack.” Physical security measures, security experts agree, always
ultimately will fail.
Releasing a poison gas cargo in a large city seems clearly the easiest way
terrorists can fulfill their stated goal to kill many more Americans in their next set
of spectacular attacks than the 3000 killed on 9/11. Re-routing through cargoes
wherever possible is essential as a first major risk reduction measure.
APPENDIX ONE:
FRA reps excerpt of summary re meeting with railroad reps
NPRM docket 18730 Document no 118
The FRA rep’s summary from the meeting discusses future regulatory proposals
on hazmat routing (my emphasis):
“PHMSA and FRA are working on this [new routing regulatory proposal] now with
DHS. It addresses the comments received as a result of the [DOT’s] request for
comments August 16, 2004.
This is being promulgated in order to address the concerns of the D.C. judge that
wanted to halt routing
through D.C. Hopefully, this will reinforce the preemption law and help keep the
carriers out of court and able to run your trains over your best established routes.
It will require that commodity data be available on a route specific basis for each
calendar year. The data needs to be available within 90 days of the end of the
previous year. The data will include the total number of shipments on the route
segment, along with the number of origins and destinations along the route
segment. They
are not going to ask that this data be submitted, just available upon request. The
chemicals of concern will be Class 1.1 & 1.2 explosives, bulk TIH, and highway
route controlled quantities of radioactive material.
It requires a route analysis with alternates, and
comparisons of the alternate routes to include the
potential economic effects of using the alternate routes.
Specific measures to address the risk must be identified
and incorporated into the carrier’s safety and security
plan.
Components of the regulation include;
Trip length
Signals
Volume shipped
Track class
Grade and curvature*
Known threats
Grade crossings
Iconic structures
Places of congregation
Venues
Environmentally sensitive areas
Population density along route*
Emergency response capability*
* FRA will attempt to have these elements removed.
This will come out as a NPRM in the mid-November to
December time frame….”
http://www.regulations.gov/search/search_results.jsp?
No=130&sid=119C4B1342FB&Ne=2+8+11+8053+8054+8098+8074+8066+8084+8
055&Ntt=18730&Ntk=All&Ntx=mode+matchall&Ns=P_FRPublish_Date|1&N=0&cs
s=0
APPENDIX TWO: 27 new “factors” the individual railroad must consider in
routing:
1. Volume of hazardous material transported;
2. Rail traffic density;
3. Trip length for route;
4. Presence and characteristics of railroad facilities;
5. Track type, class, and maintenance schedule;
6. Track grade and curvature;
7. Presence or absence of signals and train control systems along the route
(''dark'' versus signaled territory);
8. Presence or absence of wayside hazard detectors;
9. Number and types of grade crossings;
10. Single versus double track territory;
11. Frequency and location of track turnouts;
12. Proximity to iconic targets;
13. Environmentally sensitive or significant areas;
14. Population density along the route;
15. Venues along the route (stations, events, places of congregation);
16. Emergency response capability along the route;
17. Areas of high consequence along the route, including high consequence
targets as defined in § 172.820(c);
18. Presence of passenger traffic along route (shared track);
19. Speed of train operations;
20. Proximity to en-route storage or repair facilities;
21. Known threats, including any nonpublic threat scenarios provided by the
Department of Homeland Security or the Department of Transportation for carrier
use in the development of the route assessment;
22. Measures in place to address apparent safety and security risks;
23. Availability of practicable alternative routes;
24. Past incidents;
25. Overall times in transit;
26. Training and skill level of crews; and
27. Impact on rail network traffic and congestion.
| PHMSA-RSPA-2004-18730-0204.1 | Friends of the Earth - Comments |