Legislators in Washington and Sacramento who are wrestling with the rapidly increasing dangers of teh crude-by-rail boom appear to have hit a brick wall put up by federal regulators and the train industry. Committee hearings in the California State Senate (Feb. 24), the U.S. House (Feb. 26) and Senate (March 6) came to the same basic impasse:
Rail companies are making a series of perfectly respectable yet perfectly inadequate half-steps to protect rail safety; federal regulators are unwilling to require companies to take any further steps; and state regulators are toothless.
The real takeaway, however, is the refreshingly strong stand taken at each of the three hearings by officials from the National Transportation Safety Board. Despite its name, the NTSB has no real power and can only issue advisory opinions. But its expertise is widely recognized, and it has had real effect in encouraging lawmakers to grow a spine and demand reform.
For a thorough summary of how federal regulators on train safety have fallen down on the job, it's worth reading the March 6 Senate testimony of Christopher Hart, vice chairman of the NTSB. Federal officials don't often use words such as "unacceptable" to publicly describe the actions and inactions of the federal agency they oversee. In the bland policy-speak of the Obama administration, it's the equivalent of a kick to the face. After the jump are Hart's two main points:
1) Replacing the DOT-111 tanker cars. The Federal Railroad Agency has dragged its feet in taking action on a two-decade-old NTSB recommendation that the FRA require all rail companies to replace their DOT-111, which is the most common model for oil-by-rail transportation and which has been involved in recent oil train accidents. Hart's words could not be more pointed:
Their continued use to ship flammable liquids poses an unacceptable risk to the public. (...) Specifically, the NTSB has identified vulnerabilities in DOT- 111 tank car design with respect to tank heads, shells, and fittings that create the unnecessary and demonstrated risk that, in an accident, hazardous materials could be released and, in the case of flammable materials such as crude oil and ethanol, could ignite and cause catastrophic damage.
However, Hart said that an improved tanker car design adopted by the American Association of Railroads, an industry group, in 2011 is still inadequate. "At this point, however, the NTSB is not convinced that these modifications offer significant safety improvements." Hart detailed the changes needed:
The NTSB continues to assert that DOT-111 tank cars, or tank cars of any successor specification, that transport hazardous materials should incorporate more effective puncture-resistant and thermal protection systems. This can be accomplished through the incorporation of additional protective features such as full head shields, jackets, thermal insulation, and thicker head and shell materials. Because the average service life of a tank car may run 20-30 years, it is imperative that industry, the FRA, and PHMSA take action now to address hazards that otherwise would exist for another half- generation or longer.
2) Improved train controls. Hart complained that the FRA was dragging its feet in overseeing rail companies' compliance with the Rail Safety Improvement Act of 2008, which requires implementation of positive train control (PTC) on railroads that carry hazardous materials. PTC is an automated signaling system that detects whether a train is violating a speed restriction, and if necessary will automatically slow or stop the train. With a bureaucrat's stone face and even tone, Hart pointed out that the NTSB first recommended adoption of PTC in 1969 after a deadly train crash in Connecticut, and has repeated its recommendation ever since. Here is a key section of his testimony:
Some rail carriers have installed PTC or are working to meet the 2015 deadline. However, in August 2013, the Government Accountability Office reported to the U.S. Senate that, due to a number of complex and interrelated challenges, the majority of railroads will not complete PTC implementation by the 2015 deadline.16 NTSB files are filled with accidents that could have been prevented by PTC, and for each and every day that PTC implementation is delayed, the risk of an accident remains. For PTC to reach its greatest safety potential, it must be implemented on all passenger and freight lines subject to the installation requirements specified in the RSIA. Lives depend on it.
There is much debate by policymakers over whether to extend the 2015 deadline established by RSIA. If Congress were to delay the statutory deadline, railroads that had delayed planning PTC implementation would be rewarded and railroads that had moved ahead with planning for PTC implementation by the deadline would essentially be punished. If the deadline remains unaltered, the NTSB would encourage FRA to take appropriate action to ensure railroads are complying with all applicable requirements regarding PTC implementation.
(...) The NTSB believes this information should be made available online to ensure a transparent accounting for actions taken and not taken to meet the 2015 deadline so that regulators and policymakers can make informed decisions. However, because of FRA’s lack of sufficient action on its recommendation, this week we classified this recommendation as “Open—Unacceptable Response.”
A typical comment came from Sen. Richard Blumenthal, D-Conn., who opened the Senate hearing by saying: "I have been disappointed and disturbed by some of the delays and failures in rulemaking and oversight and scrutiny scrutiny that have been imposed on these railroads. With seven rules left to finalized from the law passed in 2008, the Railroad Safety Act of 2008 has still not been implemented years later, and some of those rules are past their deadline. Rules delay means safety denied, and that is unacceptable and intolerable."
Rep. Peter DeFazio, D-Ore., put it more succinctly, asking for a drop-dead commitment from federal offiicals to get all DOT-111 cars off the rails and to take other action. “Set a deadline,” he said.
To get a quick sense of the legislators' frustration, here's Sen. Maria Cantwell, Democrat from Washington: