"We don't need a higher body count before they move forward."
-- Deborah Hersman, NTSB Chairman 2009-2014
By Shawn Collins and Jaclyn Kostich of The Collins Law Firm, P.C.
We've all been caught by one of those rumbling, seemingly endless freight trains that have become an increasingly common sight in our neighborhood. Have you ever wondered what's inside them? As it turns out, the answer to that question has changed drastically over the years-and not for the better.
Inside the Rail Cars
Railroads used to haul produce, furniture, and other life staples. Peek inside a freight train today and you won't find strawberries or sofas. Instead, it's quite likely you'll find millions of gallons of crude oil, radioactive material, explosives, and some of the most toxic chemicals on earth. To name a few-methyl bromide, ethyl trichlorosilane, methanol, sodium chlorate, sulfuric acid, chlorine, toluene diisocyanate, and numerous other highly poisonous chemicals that most of us can't even pronounce are transported by rail every single day. Many of these materials, if spilled, have a recommended evacuation radius of 5-10 miles and several are fatal if inhaled or absorbed through the skin. To think that this motley crew of chemicals makes its way down tracks that have houses alongside them; passes busy crossings lined with pedestrians and drivers; and zigzags through urban mega-centers-is mind-boggling, and more than a little bit scary.
The Federal Agencies Involved
"This can't be legal," you're thinking. Not only is it legal, our federal government purports to regulate it. The Federal Railroad Administration (FRA), a division of the U.S. Department of Transportation (DOT), is the main agency tasked with overseeing and regulating railroad safety. Additionally, the National Transportation Safety Board (NTSB) is the agency charged with investigating rail accidents and carrying out studies concerning transportation safety. The NTSB is intended to be non-partisan and apolitical in its findings and recommendations; but this comes at a price-NTSB has no regulatory authority, and its findings are nonbinding, which means rail industry lobbyists are usually successful in quashing any implementation of its recommendations. Inevitably, safety concerns only continue to mount.
We won't pretend to exhaustively list all the problems or solutions associated with transporting hazardous materials by rail. Rather, we advocate what the federal government is sadly missing-a sense of proactive urgency-an urgency to fix a broken and dangerous system that is historically laden with patchwork re-regulation, and which awakens from its slumber typically only in response to high-profile tragedies. We shouldn't need such a tragedy before we remedy the most glaring problems.
The Problems
- People Have Already Died and Lives Have Been Put in Jeopardy. To name but a few: a Rockford, Illinois family of four, while waiting for a 114-car freight train to pass, was engulfed in flames when 18 cars carrying two million gallons of ethanol, derailed and exploded. The explosion set fire to their van and ultimately killed the mother and badly injured the father and pregnant daughter, who lost her baby as a result. And then there's the Paulsboro, New Jersey derailment that leaked thousands of gallons of vinyl chloride and caused the evacuation of over 300 nearby residents. Or the Powellton Hollow, West Virginia derailment, where 27 of 109 railcars carrying 3.1 million gallons of volatile crude oil went off the rails near the Kanawha River, exploding and then burning for days, forcing an evacuation of more than 100 people. Nobody died in this case, but as we should have learned from Canada's 2013 Lac-Megantic oil train derailment, when 47 people were killed and more than 30 buildings destroyed by the explosion and fire-a heavily populated area become deadly in an instant. According to a July 2014 report by DOT, over the next decade there will be an average of 10 derailments a year of trains hauling crude oil or ethanol. The federal government seems to be resigned to the fact that derailments and subsequent injuries to life and property will inevitably occur, and are rolling the dice on when and where it happens next.
- The Tracks are Old and Poorly Routed. Many of the rail tracks in existence are poorly maintained and susceptible to accidents. Additionally, many were built long before the cities were built around them. Therefore, serious attention should now be given to laying new tracks in less populated areas. The railroads are supposed to consider the condition and location of the tracks when choosing routes. In fact, the federal regulations require railroads to analyze various "risk analysis factors" before determining the "safest and most secure" route for hazardous shipments. However, it's hard to feel any comfort from these seeming requirements because the federal government has not produced a single public assessment on the safety of routing. In fact, to date, a railroad has never been fined over its choice of route, despite being subject to periodic federal audits.
- There is a Lack of Transparency. No one knows what is being shipped or when, except the railroads. The four main freight railroads-Union Pacific Corp., Burlington Northern Santa Fe Railway Co. (BNSF), Canadian Pacific Railway Ltd., and Canadian National Railway Co.-all say they share information about crude oil shipments with local emergency responders. However, for materials other than crude oil, no laws, including the Emergency Planning and Community Right to Know Act (EPCRA) require them to do so. Rather, even the newest regulations require only that the railroads notify the State's "fusion center" or information hub. It is then the hub's duty to make sure the information trickles its way down to local responders in every single community through which the train passes. Is this being done? At this point there is no way to know for sure. The average citizen, even those living a stone's throw away from the tracks, is left in the dark. DOT and the FRA cite "security" as the main reason for the non-disclosure. But when you consider the fact that federal regulations require each car/tank carrying dangerous goods to be publicly marked with a 4-digit number identifying the substance inside, the "security" reason seems like a hoax. Quite simply-the greater the risk to the public, the more transparency there should be.
- The Tank Cars Are Dangerous. The majority of crude oil is being moved in tens of thousands of DOT-111 tanker cars, called "soda cans" by critics because they are so easily punctured and crushed. Most of them can carry more than 700 barrels of oil or 30,000 gallons. The FRA finally addressed these sub-par rail cars by modifying its rules in May of 2015 (after 2 years of objections by industry officials). While the rules require thicker steel plating for tank shells and better thermal protection for any rail car/tank built after October 1, 2015 as well as all existing tank cars to be rebuilt in accordance with new safety measures by Jan 1, 2017, it still allows dangerous cars on the rails. Instead, the government should remove the most dangerous tank cars immediately, not allow a 2-1/2 to 5 year phase-out of the oldest tank cars, and a phase out that will take a decade for all dangerous tank cars. Additionally, these rules only apply to "High-hazard flammable trains" (HHFT), which DOT defines as "a continuous block of 20 or more tank cars loaded with flammable liquid or 35 or more tank cars loaded with flammable liquid dispersed through a train." So, what does this even mean? It means that the railroads can easily avoid these rules by manipulating the number of tank cars carrying hazardous materials (i.e. never having more than 18 hazardous material train cars in a row or more than 35 hazardous material cars total throughout a train).
- Our Government Perpetuates the Secrecy. Quite frankly, throughout history-the federal regulations mostly have shielded American railroads from local or state oversight and have provided a blanket of secrecy over rail operations. Take for instance a quote from Republican Senator John Thune of North Dakota, chairman of the Committee on Commerce, Science & Transportation-which oversees rail safety-who clearly does not share our urgency:
"Without question, we must improve the safety of our nation's rail system, but I am concerned about the unattainable deadlines the rule proposes," Thune said. "The DOT issued this proposed rule without analyzing the potential tank car shop capacity needed to retrofit or replace over 100,000 DOT-111 tank cars."
Senator Thune feels the 10-year deadline is too fast? Not according to at least one of the experts in the field, Greenbrier's (one of the nation's largest makers of tank cars) chief engineer, Gregory Saxton:
"We think this industry has an amazing capacity to build more cars," Saxton said. "If the demand is there, we'll meet it."
The bottom line is if the government sets a 10-year deadline to address a problem, it will take every bit of that 10 years. Why not treat these changes as they should be treated-as though a tragedy already has occurred, and the time for change is NOW? Why are we waiting for a tragedy? A 10-year deadline means no one is operating with urgency. Take, for example, forty-five years ago, when DOT proposed positive train control (PTC), which monitors and controls train movement to avoid accidents. However, it wasn't until 2008, after a train collision killed 25 people, that swift action was taken.
The Future
Reactive regulation fails the public. What is needed, instead, is preventive regulation with rules that have immediate implementation, not decade-long rollouts. It is up to the government to make the rules and require the rail companies to abide by them if they want to remain in business. And if money is cited as a source of any delay, then regulations should be written so that those who financially benefit the most should pick up the tab-the companies who order the shipments and the railroads who do the shipping.
In the long-term, we need a revamp of the federal agencies that are involved, including empowering the NTSB to require the FRA and DOT to explain in greater detail why they either are or are not adopting NTSB findings and recommendations or restructuring the NTSB so that it has binding authority. Over time, this can measurably improve public safety. However, until these meaningful immediate and long-term changes in the law occur, trains rumbling through our neighborhoods continue to be ticking time bombs.
