D.C. Council votes for hazmat transport ban
The District of Columbia city council Tuesday approved emergency legislation immediately banning train and truck shipments of the most toxic-by-inhalation hazardous materials from a 2.2-mile radius of the U.S. Capitol for 90 days.
The measure, which passed by a vote of 10-1, is primarily aimed at getting CSX Transportation to reroute railcars around the district for security reasons. A CSX rail line is located four blocks from the Capitol and D.C. officials fear large-volume shipments of certain deadly chemicals could be attacked by terrorists and quickly kill thousands of people.
Mayor Anthony Williams has said he would sign the bill, which allows an exception for shipments if there is no alternative route or if there is an emergency that requires transit through the city. Passage by a super-majority means it can go into effect without having to be reviewed by Congress, which normally has 60 legislative days to act on district legislation.
The council also passed a bill to permanently ban specified hazmat shipments. Bills in D.C. must be passed twice before they can be sent to Congress. Complicating the situation is a temporary bill under consideration that would go into effect for 245 days, in part to bridge the gap between the emergency and permanent legislation.
A Naval Research Laboratory scientist estimated in October 2003 that a toxic chlorine release could kill up to 100,000 people within 30 minutes during a major public event on the mall. Last year, a Homeland Security Council report estimated that under less crowded conditions, an attack in an urban area would result in 17,500 deaths.
Similar legislation was defeated last year after Homeland Security and CSX officials assured the council they were taking steps to protect the city and minimize the threat. Citing security concerns, CSX officials never specifically disclosed what measures they were taking. But the January crash in Graniteville, S.C., of a Norfolk Southern train in which nine people were killed and hundreds forced to evacuate because of chlorine gas leak prompted councilwoman Kathy Patterson to re-introduce a narrower version of the bill. She said the council was no longer comfortable accepting assurances from DHS and the railroad that the city was safe.
Councilmember Carol Schwartz was the sole dissenter, saying the measure was unnecessary.
Railroads claim they have an enviable safety record when it comes to transporting hazardous material, and that rail is 16 times less likely to be involved in an accident than truck transport. But a series of recent accidents have drawn attention to railroad safety and raised questions about the consequences of deliberate sabotage. On the same day as the council vote four cars on a CSX coal train derailed in adjacent Prince George’s County, Md. On Monday, sections of a Norfolk Southern train jumped the track in Pennsylvania, spilling hydrogen fluoride into the Allegheny River. No one was hurt in either incident. Last week a Los Angeles commuter train hit a sports utility vehicle driven on the tracks by someone considering suicide, killing at least 10 people and injuring more than 100 others.
The dispute is being closely watched by other communities, chemical shippers and the rail industry, which fears a D.C. ban could spread to other localities and make it difficult and expensive to work around a patchwork of off-limit zones in their rail networks.
CSX spokesman Bob Sullivan said the company is reviewing the legislation and “will take all actions that we believe are appropriate.”
Sullivan would not comment on how the railroad would operationally respond to a ban, but bill supporters pointed to a Norfolk Southern Railway line 50 miles west of the district they say could carry CSX shipments under an interline agreement.
CSX is not opposed to looking at how to route certain types of hazmat, but such a review should be done nationally, not in a piecemeal fashion, said Skip Elliott, vice president of public safety and environment for CSX, at a rail security conference sponsored by Railway Age magazine.
The D.C. law merely “transfers risk from one community to another,” he said.
“We just don’t believe that decisions by individual communities are going to increase security,” said Kate McGloon, a spokesman for the American Chemistry Council, which represents chemical shippers. “We don’t believe simply exercising this one part of the puzzle is the way to go. I don’t know if you can cherry pick one part out.”
A source said an industry official privately indicated the rerouting might cost $1 million per year in extra shipping charges.
Elliott suggested CSX would turn to the federal government for help to block the legislation. “We’d look at federal preemption as it applies to the D.C. legislation,” he said.
“A prohibition of hazardous materials shipments through a portion of the district, as adopted by the D.C. Council, may violate provisions in the U.S. Constitution and federal laws on interstate commerce, the transportation of hazardous materials, and the railroad industry,” the Department of Transportation said in a statement. “Should this legislation be signed into law, the department will review the bill to determine whether it is in fact preempted by federal law, and we will also continue to explore other options that might be available with regards to routes for transporting hazardous materials through the national Capital area.”
Jim Dougherty, legal chair for the D.C. chapter of the Sierra Club, said he didn’t expect the federal government to step in and overturn the D.C. law. The bill was drafted to minimize the effect on commerce, said Dougherty, who has been involved in the campaign for the ban.
“It regulates only a very small fraction of the universe of hazmat,” Dougherty told Shippers Newswire. “That makes it hard for them to show that interstate commerce is going to be paralyzed.”
The bill applies to large shipments of so-called “ultrahazardous” materials that are toxic when inhaled. The bill applies to selected parts of four of 16 categories of hazardous materials listed under federal statutes. The bill covers two of six categories of explosives, namely high explosives with fast acceleration properties; flammable gases in quantities in excess of 10,000 liters, and Hazard Classes A and B of poisonous gases. According to a draft statement from Patterson, the bill would affect less than 5 percent of hazmat shipments through the city. There are only 10 toxic-by-inhalation gases among the 150 hazardous chemicals most shipped by rail, environmental group Greenpeace said, citing a 2000 study by the Argonne National Laboratory. Dougherty said even ammonia is not toxic enough to be covered by the bill.
CSX Transportation moves about 8,500 chemical cars through Washington each year. Rick Hind, legislative director for the Greenpeace Toxics Campaign said rerouting would probably affect about six rail cars per day. Under the bill, the railroad could apply for a permit to move small amounts of ultrahazardous chemicals and empty cars.
The Sierra Club believes the D.C. law will stand based on a legal opinion provided by law firm of Wilmer, Cutler, Pickering, Hale and Door stating that the bill is not preempted under the Constitution or federal law.
“Furthermore, the CSX railroad will be hard pressed to convince a court to reverse a law that requires them to do what they claim they are already doing in secret,” Greenpeace said in a statement.
DHS officials said they and the railroad have taken many steps to protect hazmat shipments through the D.C. rail corridor, but decline to discuss specifics. The Transportation Security Administration completed a classified vulnerability study, a buffer zone protection plan to establish the readiness of first responders in the area, and an analysis of chokepoints that are likely to be targeted by terrorists, said James Dunn, the agency’s chief of rail cargo security, at the Railway Age conference. Security gaps were subsequently improved that the system would meet the necessary safety threshold.
Dunn said the findings from the D.C. freight corridor analysis were shared with the railroad and the D.C. Council. A similar corridor assessment was recently conducted in New Jersey and another one is starting in Cleveland, Dunn said.
“We’ve had top-notch cooperation with the railroads,” he said.
Dougherty, who lives near the tracks, said it is common for chlorine cars to sit still on the tracks.
“It would be easy to hit them with a bazooka. There are eight bridges that could be hit by a truck bomb. It doesn’t matter if they have hidden cameras and rent-a-cops. It doesn’t do much. Why spend millions of dollars on half a loaf?” he said.