Friends of the Earth /US
1717 Massachusetts Avenue NW Suite 600
Washington, D.C. 20036-2008
Submission to the Railway Safety Act Review Panel
Fred Millar, Ph.D., consultant August 20, 2007
CONTACT: Fred Millar, Ph.D. Friends of the Earth/ US 703-979-9191
Friends of the Earth/ US is pleased to submit comments to the Railway Safety Act Review Panel. We have worked on rail safety and security issues in the US for many years, particularly those involving dangerous goods cargoes in urban areas, and we recognize the many physical, regulatory and political linkages of our North American freight railway systems. We are especially aware of the recent derailments and collisions in these systems and the significant releases of toxic chemicals causing deaths, injuries and damage to wildlife.
We will focus in this submission on North American freight rail security (sûreté) issues. We are convinced that any fair-minded person will admit (as US emergency response professionals have told us) that serious efforts to reduce freight rail terrorism release risks will also almost always reduce accident release risks as well. For example, re-routing dangerous goods toxic gas railcars around major target cities will both virtually eliminate the potential terrorism risks and significantly reduce theconsequences of a potential accidental release. The huge potential consequences of rail freight terrorism underscores the similar risks of accidental releases, often neglected as a major hazard by the public, media and public officials, since, despite many smaller and fatal precursor rail accidents, we have by sheer good luck (as Mississauga officials can testify) not yet had our Bhopal-scale disastrous release of a toxic gas railcar in a North American city.
A review of many of the submissions to the Railway Safety Act Review Panel during its 2007 meetings reveals that a large number of Canadians are troubled by rail safety [sécurité] issues, especially as revealed in recent serious Canadian derailments, especially with toxic materials. [The US terms these cargoes among the “hazardous materials” or “hazmat”; Canada and many other nations term them “dangerous goods”] Major Canadian media articles reinforce and summarize the concerns (see “Freight train accidents soar” Toronto Star, March 06, 2006 by Kevin McGran)
Only a few of the submissions reviewed, however, mentioned worries about rail freight security [sûreté] issues, involving possible terrorist use of toxic cargoes in populated areas as hugely damaging weapons. These included submissions by British Columbia Safety Authority, Smart Rail, the Teamsters, and Le Groupe TRAQ.
Canada recently effectively deregulated its railroads by amending the Railway Safety Act. The Safety Management Systems approach thereby adopted as a replacement for regulation is manifestly not working well, according to many review panel submissions (e.g., UTU; Canada Safety Council, citing CTV’s W-FIVE investigations). These cite the many recent serious accidental freight derailments including widely-publicized ones in 2005 and 2006, and call for a much more robust government role in safety regulation and accountability.
Our discussions with Transport Canada regarding rail security issues suggest that Transport Canada (like the US Department of Homeland Security – US DHS) is focused mainly on worrying about toxic railcar storage in railyards and sidings in major cities, the very often overly-long delays there, and the consequent significant security vulnerabilities in this storage. However, the Dangerous Goods Advisory Committee’s review of the implementation of the Railway Association of Canada’s DG-1 Circular, intended to improve safety of dangerous goods railcars in storage, revealed that “the railways were unable to provide any evidence of compliance” (submission of Canadian Association of Fire Chiefs).
Even the Access to Information Act seems to be held in contempt by Transport Canada, for example (see submissions by NDP critic David Chudnovsky and Professionals for Rail Safety Accountability, Inc.)
The US had deregulated its railroads earlier, in 1980, and subsequently has also had quite feeble government oversight and very often a Missing In Action federal regulatory agency, the Federal Railroad Administration. The New York Times in fact won the Pulitzer Prize in 2005 for a series of articles by Walt Bogdanich documenting this lack of an effective government in US rail safety and portraying an agency notoriously close to (almost literally in bed with) the railroads it is supposed to regulate -- and consequent serious safety and security problems.
The Canadian Parliament has not recently amended the Dangerous Goods Act, although a consultation was held a few years ago. It did recently amend the Railway Safety Act very minimally by adding a few words to include security concerns, as did the US Congress regarding our relevant rail safety laws.
But we feel that the currently ongoing Railway Safety Act review in Canada has only reinforced the widespread neglect in Canada of railway security issues, even with hazardous cargoes transported and stored in what might be considered Canada’s urban target areas. The government’s review panel explicitly ruled out security concerns as part of its review mandate.
The lack of public visibility of this issue in Canada only hinders any serious efforts to reduce the enormous risks. No one can argue that any potential terrorists would have a difficult time appreciating the potential of toxic gas tank cars, for example, as powerful terror weapons, given that all the essential information is readily accessible in the public domain.
Nonetheless, Canadian railroads which operate in the US will in a matter of months have to begin complying with the new US law requiring re-routing of dangerous good (DG) cargoes around major target cities. The US Congress has addressed the significant terrorism threat to major US target areas (mostly large cities), recognized as “perhaps the greatest vulnerability in the nation” by a former top Bush Administration homeland security official in Senate Testimony and media opinion pieces (see Falkenrath, in Appendices). The new law HR 1, signed in August 2007 by President Bush, mandates that railroads carrying the most dangerous cargoes re-route onto available alternative non-target lines (the “safest and most secure” lines) – see discussion below.
Perhaps the main contribution FOE US can make here to the current Railway Safety Act review is to outline the significant concerns about freight rail security which have been voiced in Canada and more loudly in the US since the 9/11 attacks, especially concerning toxic gas cargoes, to describe recent important developments, and to suggest some resources that concerned Canadians might find useful when (we hope) they raise such issues in Canada. In a final note we suggest why Canadians might need to fear rail-related terrorism as a result of Canada’s unfortunate support of US foreign policy.
Conversations with Canadian officials and citizens suggest the following outline of the Canadian situation regarding possible toxic rail cargo terrorism:
- Some Canadian government officials at all levels are very concerned that Canada can be a target for serious al Quaeda-related terrorism, in part because of Canada’s close identification with longstanding US and Western foreign and military policies that jihadists passionately oppose.
- In Canada, apparently there is some behind-the-scenes official concern for WMD rail cargoes being used in the future against target cities, but no re-routing is planned nor is in operation at city or provincial or national level. There seems to have been no general discussion in the media about toxic cargoes as terrorism weapons, so citizens seem to have been kept deliberately in the dark (as has been often the case in the US) about very significant threats.
- Transport Canada reportedly has considered three major options to reduce freight rail security risks with dangerous good cargoes:
- Armoring the rail cars carrying poison gases (by far the largest concern for terrorism targets and weapons), but it was decided this would not be cost-effective, and would make cars too heavy for the tracks or reduce chemical payload per car
- Re-routing around major target cities, rejected [see below]
- The tactic adopted instead of re-routing: “expediting” the dangerous goods cargoes through Canadian cities [e.g., moving freight trains more directly so they do not spend so many hours/days in storage on urban sidings or in major target city railyards]
- The rationale most often suggested for not re-routing: “We in Canada don’t have as many alternative rail or highway routes here” [although it seems the potentials for alternative routes have not been explored very seriously].
- The oft-heard rationale for not raising the terrorism/re-routing issue vividly with the Canadian public [e.g., in a public inquiry], thus keeping citizens in the dark about huge terrorism risks in target cities: “Vivid TV investigative pieces [e.g., showing, as 25 such TV reports have done in the US, the near-total lack of security in the North American freight rail system] would be a turnoff here, we have a different political culture”. Perhaps this takes for granted a permanent lack of citizen Right-to-Know culture and laws in Canada?
- No one should think that safety and security concerns play big roles in major rail shipment decisions that put thousands of workers and millions of citizens at grave risk. After the 9/11 attacks, the disturbing fact that US DHS and Canadian officials have uncovered is that shipments of the most dangerous cargoes like chlorine and ammonia often go hundreds and thousands of miles across the continent, endangering many major cities, only because commercial considerations are supreme over safety and security concerns.
- One such irrationally long shipment campaign, Canadian officials have discovered, is from a chlorine production plant in a populated city, North Vancouver BC, which reportedly sends 90% of its product – through Vancouver and Burnaby and no doubt many US target cities -- to a single PVC plant fully 2600 miles away, in La Porte TX. As if the Gulf Coast doesn’t have several chlorine production facilities nearby -- some Texans must have gotten a great sale on Canadian chlorine gas to be able to ship it 2600 miles. Quiet efforts by US FRA and US DHS to get the toxic gas industry and railroads to arrange sensible “market swaps” of chemicals, “re-sourcing” by using nearer-by facilities to reduce dangerously long shipment routes, have reportedly been defeated by US Department of Justice decisions preventing such chemical producer-rail carrier “collusion” as anti-trust violations.
- Canadians citizens probably do not appreciate how utterly routine and very frequent is the “interchanging” of individual or small groups of tank cars among several railroads, following well-established agreements in interchanging, and trackage and haulage rights. US court proceedings revealed recently that in the eastern half of the US, for example, CSXT railroad and Norfolk Southern railroads interchanged cargoes for their own commercial purposes 1.5 million times per year. But they refused to do so when the District of Columbia Council enacted a re-routing ordinance for homeland security purposes.
There have been significant US political and regulatory developments in the post- 9/11 time frame in protecting target cities:
In the US, there has been for some time rising concerns for continued transportation through all major target cities of through shipments of chemical rail and truck cargoes (“dangerous goods” in UN and Canadian regulations) that the US government actually terms Weapons of Mass Destruction. By not re-routing voluntarily the most dangerous through shipments onto available non-target routes, chemical shippers and carriers are in effect recklessly pre-positioning them for right in our 46 High Threat Urban Areas for the benefit of the terrorists.
Friends of the Earth and citizens concerned about “toxic trains” had mounted a sustained nationwide effort to re-route the most dangerous through shipments of toxic railcars since the 9/11 terror attacks. See the PBS “NOW” video at:
Their efforts helped bring about the passage of city council re-routing ordinances in Washington DC and introduction of similar laws in ten other major cities and in three state legislatures. In addition, more than 25 major TV and print investigative reports have convincingly highlighted the threat posed by such WMD cargoes and the absence of any effective security in the US railway system. The Washington DC ordinance was opposed in federal court by CSXT railroad, other railroads, chemical shippers and the Bush Administration, and the case is still on appeal (see )
The threat is immense: just one railcar of chlorine gas, for example, according to the U.S. Naval Research Labs, could kill 100,000 people in ½ hour at a crowded civic or sports event in a major city. The venerable Pamphlet 74 from the industry’s own trade association, the Chlorine Institute, shows that the 90-ton railroad tank car can produce a toxic chlorine cloud at a lethal level fully 15 miles long by 4 miles wide.
No wonder the Mississauga officials ordered a prudent precautionary evacuation in 1979 of 250,000 for a week, because of just one slowly leaking chlorine tank car surrounded by other derailed and burning propane cars. The recent news from Iraq is that for several months the insurgents there have been honing their skills with a new kind of terror weapon: blowing up chlorine trucks (see the NY Sun article in Appendices). And the Chlorine Institute has warned US officials that someone has been stealing chlorine containers.
Despite the well-known threat of WMD cargoes, U.S. railroads have steadfastly resisted security measures involving re-routing, which they see as the beginnings of governmental “re-regulation” and as encouraging the proposed Congressional “railroad reform” legislation advocated by their “captive shippers”. No US railroad and no US chemical shipper has announced a national policy of voluntarily re-routing their most dangerous through shipments around major target areas, except in cases of short-lived Special National Security Events like the SuperBowl or the Presidential Inauguration.
The only ongoing “voluntary” rail re-routing that citizen pressure has so far achieved is the partial re-routing of hazardous materials away from the CSXT Railroad “I-95 line”, which we call the “photo-op line”, where many media photographers have shown chlorine tank cars with the US Capitol only four blocks in the background. CSXT still threatens iconic D.C. targets and populations, however, with hazmat cargoes on its other, less media-visible CSXT “Metropolitan” freight route, which cavalierly dips into DC to a point only 20 blocks north of the US Capitol, not a significant difference for a chlorine cloud, depending on the wind and weather.
Insurance Issues: Railroads have complained in Congress that they cannot buy adequate terrorism insurance in the private market:
In recent Congress testimony on rail security (June 13, 2006 and earlier years) the railroads and their Congressional allies have backhandedly acknowledged the huge terrorism risks of rail transport of poison gas cargoes through target cities, mainly because they highlighted the resulting liability and insurance problems. Despite these risks, however, they assert target cities should not protect themselves by re-routing – this should be a federal role only, if at all.
Ed Hamberger, CEO of the Association of American Railroads, outlined for Congress the “ruinous liability” and “untenable” high insurance costs railroads face with hazmat transportation, predicted total insurance unavailability in near future for the “multi-billion dollar risks associated with highly-hazardous shipments”, and asked the Congress to provide one or more federal bailouts. Lamenting that US railroads have a statutory “common carrier obligation” to carry unwillingly the most dangerous hazmat cargoes, Hamberger also cited widespread discussion of target cities’ re-routing efforts to protect themselves, and opposed these efforts.
Most dramatic, the insurance industry testimony from AON Risk Services’ James Beardsley highlighted the substantial “contraction” of the catastrophe insurance market because of the industry’s sober assessment of the huge risks in hazmat railcar routing through major cities (no specific mention of the port insurance parallels). “Over the last 10 years freight railroads have sustained several catastrophic liability losses” costing $600 million against only $300 million paid in premiums. “As a result … several insurance companies have ceased writing railroad insurance.”
“The recent bombings in both London and Madrid have focused underwriters’ attention to the terrorism threat as it relates to the rail industry… Any further terrorist event on a transit passenger or freight could have a disastrous impact…[on future insurance coverage]”: an additional contraction and a spike in price. Insurance companies would likely raise the railroads’ deductibles from the current $25 million to $50 million. “Underwriters focus on the hauling of hazardous materials because they have been the proximate cause of many of the largest rail industry losses to date… Terrorism and hazardous chemical data must be looked at in conjunction with each other… These are the two major areas of concern…”