Feds Issue Rule on Rail Transport of Hazardous Materials

After years of prodding and contentious discussions about hazardous materials carried by railroads through populous areas, the US Department of Transportation's Federal Railroad Administration (FRA) has announced an interim final rule aimed at reducing potential threats. Railcars carry hazmat through many US communities - and quite possibly yours.

The rule may lead to safer railroad transport of dangerous chemicals such as ammonia, chlorine, radioactive materials, and other explosive, corrosive, and poisonous substances. But many critics, including the railroads, say the rule is tepid at best.

The rule, announced April 16, 2008, and intended to address threats from both terrorists and accidents, requires railroad carriers to begin no later than July 1, 2008, to collect data on hazardous shipments and to assess safety and security risks along pertinent routes. They would then need to consider alternative routes. The initial data collection, analysis, and route assessment process is supposed to be completed by Sept. 1, 2009. Along with potential effects on high-population areas, the railroads are supposed to consider impacts on environmentally sensitive and significant areas.

• FRA press release; interim final rule (HM232 IFR Rail Routing).

The rule doesn't require railroads to actually implement alternative routing, just to consider that as an option. There are provisions for FRA to require a particular alternative route, under certain conditions, but there also is language allowing appeals of such FRA decisions, suggesting that any federal challenge to a railroad company's decision could take years.

The difficulty of switching routes is increased because an alternative route may be owned by a different railroad, which isn't required to cooperate. The operating railroad is also allowed to factor in any additional cost of rerouting trains. In addition, FRA acknowledges that, especially for smaller railroad companies, there often won't be a safer alternative route.

Railroads are being asked to cooperate with local agencies in their analysis and routing decisions, but there's no specific process mandated, the type of information required to be shared with the community is very limited, and in the end, railroads may be able to ignore local input.

There are no specific standards that must be met, and there is no formal submission and approval process for the railroads' plans. Instead, FRA inspectors will consider the routing plans, once they're completed, as part of their normal duties.

Railroad companies are saying they're pawns in this game, since they're required to carry this hazardous cargo. In an April 17, 2008, statement, the Association of American Railroads reiterated its position that chemical and manufacturing industries should be required to manufacture, and adopt procedures that require, less hazardous chemicals.

• AAR statement.

The American Chemistry Council continues to resist this approach - despite similar recommendations by the Government Accountability Office and the National Academies' National Research Council - as noted in a March 6, 2008, statement addressing other chemical security measures being worked on by the US House. Instead, the ACC says "these complex decisions should be kept in the hands of industry experts."

• ACC statement.

Friends of the Earth, and its consultant, Fred Millar, 703-979-9191, have been broadly critical of Dept. of Homeland Security efforts to reduce this kind of railroad transport threat. Millar says the new rule "is a pretense of regulation" that has been carefully set up to allow the railroads to remain largely unregulated, to conduct business as usual, and to preempt state and local officials from imposing their own regulations.

• FoE press release, March 6, 2008; a summary of the organization's detailed response to the new rule likely will be posted on the Web site in the next week or two.

Washington, D.C. officials have been fighting for several years to reduce the transport of hazardous chemicals through their jurisdiction, and had adopted in 2005, and supported in ongoing court proceedings, a set of regulations. Those may now be moot, along with those in a few states that had developed regulations. The D.C. Council and its attorney general are still reviewing the new rule.

• Council of the District of Columbia, office of Phil Mendelson (chairman of the Committee on Public Safety), David Knauss, 202-724-8064.

Contact your local officials to see how they are responding to the rule. Or try groups such as the US Conference of Mayors: Elena Temple, 202-861-6719.

The rule is considered interim because the public comment period on it closed Feb. 20, 2007, but additional requirements were mandated by the 9/11 Commission Act of 2007 that President Bush signed into law Aug. 3, 2007. A final rule may be revised per public comments made in coming months, and future input from the Dept. of Homeland Security.

One example of media coverage of the new rule is:

• "Feds Adopt Routing Regs for Deadly Rail Tankers," Oakland Tribune, April 16, 2008, by Erik N. Nelson.

For much more information see TipSheets and WatchDogs on related topics, including April 23, 2008 (secrecy provisions of the new rule); Feb. 16, 2005 (DC and other local government concerns and actions); Nov. 26, 2003 (storage of rail cars in transit); and Aug. 8, 2001 (railroad accident basics).For half a dozen other related WatchDog articles, search the story database using the word "railroad."