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Critics: New rail cargo rules don't ensure safety

The Bush administration is pushing through a new rule that requires railroads to use the safest and most secure routes to transport hazardous cargo — but leaves routing decisions to the rail companies.
/ Source: The Associated Press

Barbara Neuschwander can still recall the stench and taste created by the massive fire that burned for days after a freight train carrying toxic chemicals crashed two years ago near her home south of Louisville, Ky.

A former chef disabled by asthma and diabetes, Neuschwander says she and two of her daughters continue to suffer health effects from breathing the chemical-laced smoke.

"What I've learned about railroads from this is all they care about is getting to where they want to go the quickest and fastest way possible, and the heck with the people involved," said Neuschwander, 42. "It's all about money."

Saying it wants to help protect people like Neuschwander, the Bush administration is pushing through a new rule that requires railroads to use the safest and most secure routes to transport hazardous cargo.

No input from residents, governments required
But the rule, which becomes effective during Bush's last month in office, would leave route-making decisions to railroad companies and would not require them to seek input from residents or local governments when assessing which route is safest.

Critics say the rule will allow railroads to continue sending dangerous materials through densely populated areas rather than taking longer routes that bypass cities.

The rule by the Pipeline and Hazardous Materials Safety Administration and the Federal Railroad Administration was published in the Federal Register on Nov. 26 and becomes effective on Dec. 26.

It's part of a flurry of new rules taking effect in the waning days of the eight-year Bush administration, many of them criticized as giveaways to industry. The effect is to make it harder for Democratic President-elect Barack Obama to change course on some policies favored by Republicans and the business community.

Among those unhappy with the rule is Rep. Edward Markey, D-Mass., who added language to a 2007 law implementing recommendations of the national commission that investigated the Sept. 11, 2001 terrorist attacks. Markey's provision sought to ensure hazardous rail cargo is transported by the safest route.

'Industry-friendly measure'
But the language in Markey's provision, while requiring the industry to assess various routes, didn't specify that the railway actually had to reroute the cargo to safer routes. The Bush administration based the rule on that provision.

"Unfortunately, the rule created by the Bush administration to meet the rail rerouting requirement I fought for in the 9/11 law is a weak, industry-friendly measure that won't ensure that any rerouting will actually take place," Markey said in a statement.

"By requiring the rail industry merely to assess alternate route options, the administration is adopting a low standard that falls short of what is needed," Markey said, adding that he will watch how railroads follow the law and may revisit the routing issue in the coming year.

Obama will be asked to revoke rule
The National Conference of State Legislatures objects to the absence of any role for state and local authorities in routing decisions for railcars bearing hazardous materials. The conference is asking President-elect Barack Obama to revoke the rule after he takes office on Jan. 20.

"If a railroad wants to route a train through the middle of Philadelphia, for example, carrying explosives or hazardous waste, it can do that and there is nothing in the final rule that even provides for input" from state and local officials, said Susan Parnas Frederick, federal affairs counsel for the conference. "If they want to talk to us they can, and if they don't, they don't have to."

Federal Railroad Administration spokesman Steve Kulm rejected the criticism, saying there is nothing in the law passed by Congress that requires trains be rerouted away from cities, only that they use the safest, most secure route.

Asked about Markey's contention the rule doesn't fulfill the intention of the law, Kulm said: "If he wrote this and he doesn't like what he wrote, I don't know what to say to that. He's criticizing himself, isn't he? The law doesn't say what he wants it to say."

Unfair to route cargo away from cities?
Kulm also said it would be unfair to route dangerous cargo away from cities so that it passes through more rural areas. "We take the position that the people in rural America are as deserving of the safest and securest routes as everyone else," Kulm said.

The railroad industry says 1.7 million carloads of hazardous materials are transported by rail in the United States each year, but less than 1 percent are released or spilled due to accidents.

"I would say that the federal government believes that the railroads are in the best position to judge the safest and most secure routes," said Kelly Donley, a spokeswoman for the Association of American Railroads. She pointed out that railroads are required to meet rigorous standards when analyzing their routes and must justify route changes to the Federal Railroad Administration.

"It's in everybody's best interest to have hazardous materials shipments arrive safely," Donley said.

Fred Millar, an environmental consultant for Friends of the Earth, says the rules amount to a broken promise.

"This is a sham of a regulation," said Millar, who has been campaigning against the routing of hazardous rail cargo through urban areas.

"It's worse than having no regulation at all because it has the appearance of protecting major target cities, but it's designed to do the opposite," Millar said. "The railroads do not want to be forced to reroute by the government."