The outcome of a legal battle over a far-reaching District of Columbia law restricting shipments of "ultra-hazardous" materials near the U.S. Capitol is being closely watched by chemical companies, railroads, and cities that are considering similar legislation.
The law passed after a year of on-again, off-again debate before the District's city council. Driving its passage were public fears of a terrorist attack blowing open tank cars that bring hazardous materials through the heart of the nation's capital. Regulations are now being written and are expected to go into effect on April 11.
The law is directed at CSX Transportation Inc. railroad lines and shipments that run just blocks from the Capitol and National Mall. It requires transporters of poisonous, explosive, or flammable materials that travel within 2.2 miles of the Capitol to obtain a city permit. The permit can be given only on an emergency basis and only if no alternative route exists. If the transporter can show that an alternative would be cost prohibitive, a shipment could be allowed, but the District can place time and other restrictions on movement through what the law calls the "Capitol Exclusion Zone."
The legislation is opposed by CSX, which owns and uses two rail lines that pass through the exclusion zone; by chemical companies that own the tank cars and use the hazardous materials; by the Bush Administration; and by others. In briefs, they warn that the law is an illegal attack on the Constitution's commerce clause and a century of rail laws. They say it is likely to result in copycat legislation in other cities, making the movement of hazardous chemicals throughout the U.S. impossible. They also say that the law will lead to more reliance on moving hazardous material by trucks, which have far worse accident records.
Last week, CSX won an administrative challenge it took to the Department of Transportation's Surface Transportation Board (STB) when the board ruled that the law interferes with interstate commerce. However, STB is an economic regulatory body and lacks authority to invalidate the law. Still pending is a legal challenge before the U.S. District Court for the District of Columbia; a hearing is scheduled for March 23.
The American Chemistry Council and chemical companies also oppose the law as a restriction on interstate commerce, as well as a limit on their ability to perform continued unfettered production. ACC estimates that some 150 million tons of chemicals are moved by rail annually, which works out to some 4,300 hazmat rail shipments, 3,700 of which are chemicals and essential to its business. The industry says it pays railroads some $5 billion in revenues each year, an amount sure to increase with any new antiterrorism requirements. ACC is also tied to the law's fate in another way: Its companies own the tank cars subject to the law or to a terrorist attack. And the railroads say shippers must approve route changes.
SUPPORTERS of the shipment ban include most District elected leaders and several environmental and community groups. They argue that the law is needed to protect District residents and visitors who could be caught in the crosshairs of a terrorist attack. They say the need for public safety from terrorists will in the end outweigh legal precedents based on the commerce clause.
In the middle are a growing number of rail experts who doubt the District's law will stand a constitutional test but say if the terrorist threat is real, the government must develop a national policy to better secure hazardous materials transportation through major U.S. cities. Like chemical companies, railroads have developed their own security plans with encouragement--but little oversight--from the federal government.
Adding heat to the debate is a rash of rail accidents around the U.S. involving hazardous chemical releases. Early this month, a rail tank car holding a misidentified mix of acid hazardous wastes and ammonia leaked near Salt Lake City, causing the evacuation of some 8,000 people. In January, a derailed tank car broke open, releasing chlorine in Graniteville, S.C., killing nine and forcing the evacuation of hundreds. Also in January, a train derailed near Pittsburgh, releasing hydrogen fluoride and sending tank cars into the Allegheny River. And last year, two accidents near San Antonio killed four and released chlorine into the community.
The result has been a spate of activities: criticism and legislation by Congress members concerned over federal rail security, safety, and federal spending; a request from 50 mayors to the Department of Homeland Security (DHS) and the Department of Transportation (DOT) for advance notification when hazardous materials are shipped through their cities; and the District's law. Now, several cities--Philadelphia, Pittsburgh, Cleveland, and Cincinnati, among them--are exploring the District's path.
"Hazmat transport is on the minds of leaders in every major city in the U.S., but nowhere else, except perhaps New York City, is the threat of terrorism more real than in the District," says District Council Member Kathy Patterson, who authored the law.
"Terrorism is a fact of life for people living and working in the city, and for me as a policymaker, it is my job to figure out where the risks are and to remove or lessen them," she says.
Patterson notes that the city's population swells to 2 million during the day, when commuters stream into the city, and she cites an FBI report that terrorists are specifically interested in targeting hazardous materials containers in attacks on railcars on U.S. soil. A federal study, she adds, found that a successful terrorist attack on a chlorine tank car near the Capitol could send a gas plume 14 miles, killing or injuring 100,000 people within 30 minutes.
Since Sept. 11, 2001, a new antiterrorism climate has arrived in the city, Patterson adds. U.S. Capitol Police are closing neighborhood streets, rerouting bus and vehicle traffic away from the Capitol, establishing vehicle checkpoints, and placing barriers around most government buildings. But the tank cars appear to continue to pass unabated.
Patterson urges other major cities to conduct the same examination of rail traffic as done by the District, and she and D.C. Mayor Anthony A. Williams took the issue to an annual meeting of the National League of Cities in mid-March.
In opposing the law, both CSX and DHS point to their voluntary efforts to temporarily hold or reroute hazardous shipments around the Capitol during special events. They also have announced a federal pilot project to protect some 7 miles of track running through the District.
In all, DHS and CSX conducted a vulnerability assessment of 42 miles of track running from Maryland through the District to Virginia, DHS spokeswoman Michelle Petrovich says, but they focused primarily on 7 miles that run near the Capitol. Although they have completed the study and recommended technology fixes--more monitoring and surveillance equipment and better control of the track--the pilot project's recommendations have not been implemented, she says.
Petrovich adds that CSX has already put in place a security program for the District through its voluntary national rail industry security plan. But details of the program have not been made public.
Patterson and other council members are not satisfied. "They told us in closed-door meetings they plan to spend $9 million on more bells and whistles, but I didn't hear anything suggested that would deter a suicide bomber," she says.
She and other council members were displeased with the vagueness of the plans offered by DHS and CSX. The federal government, Patterson says, is unwilling to order rerouting of hazardous materials, and although CSX voluntarily rerouted hazmats during special events, it was "temporary, secret, and unverifiable."
Petrovich bristles and says security details have been provided through numerous private briefings with the council.
Transparency, however, looms large for cities, railroad workers, and emergency responders in the terrorism debate.
While the railroads have argued that rail workers are the "eyes and ears" of their security program and ordered them to inform their superiors about unusual activities in the rail yards and along the tracks, few of some 200,000 railway workers appear to know what they are supposed to do, says Brenda Cantrell, program director of the Rail Workers Hazmat Training Program at the National Labor College, an accredited university supported by organized labor.
A SURVEY of union workers found that rail yards remain porous, workers are unclear about their roles in security--they don't know what to watch for or what to report--and there remains a general lack of hazardous materials training, Cantrell says.
Thomas White, an Association of American Railroads spokesman, doubts the survey's value and defends the railroad's secrecy. "We are not going to allow the enemy to find out where they should go or what they should do," he says.
U.S. railroads began security upgrades after the Sept. 11 attacks, he says, conducting vulnerability assessments; installing monitoring systems, motion detectors, better lighting, and surveillance cameras; restricting rail yard access; and putting other security activities in place. He stresses that the railroads closely interact with DHS, sharing intelligence and taking joint countermeasures.
This theme is echoed by Deirdre O'Sullivan, a Transportation Security Administration spokeswoman, who says TSA has a "partnership" with the nation's railroads.
The railroads pass information to DHS, and the department passes threat information to the railroad, she explains.
The partnership is voluntary. For instance, in the District, DHS recommends to CSX that it take enhanced security actions when large events take place, but it is up to the railroad to determine a response, such as rerouting, which it did on some occasions.
For the District, however, permanent routing is the prize. The law homed in on what it calls "ultrahazardous" material, which includes chlorine, hydrogen sulfide, liquefied petroleum gas, and hydrogen chloride, for example. Other dangerous materials, such as ammonia, are not included, says Fred Millar, a consultant to several unions and environmental groups who helped craft the law. He and Patterson say their goal is to reroute only the most dangerous materials, not all hazardous materials.
But CSX says in its legal briefs that rerouting will lower safety by increasing tank car handling, raise the firm's costs, and simply shift risk from one city to another. It estimates that some 11,400 tank car shipments per year--mostly chlorine and propane--would be affected by the law. For comparison, CSX says it moves about 500,000 tank cars a year in 23 states. CSX is one of four major U.S. railroads.
None of the hazardous materials originates or terminates in the city--all pass through destined for other locations. The District phased out chlorine use for sewage treatment, and Patterson says it only uses small amounts of chlorine, shipped by truck, for drinking water purification--and that, too, is being phased out.
The railroad estimates that rerouting would require an additional 2 million car miles per year, or 175 more miles per car. These estimates are based on CSX's use of only its own rail lines. It says the District law will require it to avoid its main line that runs through the District and other major cities along the eastern seaboard and instead shift hazardous materials to tracks far to the west, beyond the Appalachian Mountains and into Tennessee, Kentucky, and Ohio.
Norfolk Southern Railway Co. has rail lines nearer to but outside the D.C. area, and Norfolk Southern regularly shares trackage rights with CSX. In its briefs, Norfolk Southern says that last year the two railroads exchanged about 1.5 million freight cars, including some 21,000 hazardous tank cars, in order to reach destinations sought by customers on tracks owned by the other carrier.
But not this time. Norfolk Southern said unequivocally that it will not allow CSX to move hazardous shipment to its lines in order to comply with the District law. "Such action would only serve to transfer the risk inherent in the movement of those shipments from the District to the communities through which Norfolk Southern operates," the company wrote.
Yet CSX and other railroads could in some cases save miles and put fewer people at risk by sharing routes, notes Theodore S. Glickman, a business professor at the District's George Washington University who examines rail routing as a consultant to the Association of American Railroads and DOT. He designed software that allows a national comparison of rail traffic paths with population, interchange points, miles, and other variables factored in.
HE COMPARED paths around the six U.S. cities ranked by DHS as the highest threat for a terrorist attack, regardless of which railroad owns the alternative rails.
For the District, Glickman found a path that avoided Washington and that reduced population exposure by 10% and cut miles by 1%. He did the same for New York City, Los Angeles, Chicago, Houston, and Seattle. In all cases, he found risk reductions as a result of less exposed population with no, or small, increases in mileage.
"You can't make a blanket generalization that rerouting is always or never advisable," Glickman says. "But moving tank cars carrying extremely hazardous materials through highly populated areas is an unnecessary gamble, and in some cases, rerouting might be preferable.
"My premise," he says, "is that traffic be free to move on any available track. However, Norfolk Southern has said it will not accept CSX traffic. To be honest, I think that if the federal government wanted to, it could persuade Norfolk Southern to cooperate. That is a factor that is being left out of the debate here."?
Washington, he continues, is obviously a terrorist target. "Railroads are understandably concerned that if they agree to rerouting in the D.C. area, it will expose them to similar pleas from other parts of the country. I think railroads are being too defensive. D.C. is a special case."
Looming behind the issue is economics, says Peter F. Swan, a management professor at Pennsylvania State University. "Railroads are not going to allow towns to impose regulations that cost them a lot of money or mess up their business," he says.
It is unlikely that Norfolk Southern would allow CSX to use its rails anytime soon, and it is also unlikely that CSX would want to, says Swan, who studies rail transportation and formerly worked for CSX.
"First off, CSX has no crews or infrastructure on those tracks," he says. But more important, he adds, "CSX would be saying to Norfolk Southern, 'We aren't going to be handling this traffic anymore, so you can handle it and we will forgo all the profit.' That is not something CSX is likely to say."
Swan, White, and Millar all agree, however, that the federal government should offer more leadership. So does Robert E. Gallamore, management professor and director of the Transportation Center at Northwestern University. He urges more research to get a full picture of rail security.
There is a need for development and reliance on new devices to monitor tank cars, for a more secure database to share information with local authorities, for better surveillance, and for better training for emergency responders, he says. Gallamore chairs a rail transportation committee of the National Academy of Sciences and has lobbied unsuccessfully for $10 million to $20 million in funding for a rail hazmat transportation research effort.
While many rail experts say it makes little sense to move hazardous materials right through major cities, it also makes no sense to allow every city to pass its own laws restricting rail traffic. Some have suggested a new dedicated rail line for hazardous material and a fundamental shift from the city-to-city connections of the past.
"Maybe the time will come when we just have to swallow hard, cough up $500 million, and move on," says a DOT official, who wished to remain anonymous. "It's a new world. In the past, railroad safety meant avoiding derailments and accidents, not dodging an armor-piercing bullet aimed at a chlorine tank car."