All Aboard: Odd Coalition in Congress Comes Together to Address Rail Safety

When it comes to railroading, there’s nothing like a massive spill of vinyl chloride to focus the mind, and specifically Congressional minds in Washington, DC.

The recent spill in East Palestine, Ohio, has turned even former President Donald Trump and newly elected MAGA Republican Ohio Sen. J.D. Vance into momentary environmentalists. Never mind that the Trump Administration in 2018 rolled back a rule requiring electronically controlled pneumatic brakes on trains carrying crude oil and other “high” hazardous flammable cargoes.

The Senate Commerce, Science and Transportation Committee, chaired by Sen. Maria Cantwell, D-Wash., by a 16-11 vote, has cleared a Railway Safety Act for floor action. Cantwell has long held a policy-wonk interest in rail safety, notably oil trains, aging tank cars, and toxic fumes therein. But the cause has signed on new converts since the Norfolk Southern trains went off the tracks.

“Yes, it may make rail transportation a bit more expensive,” Sen. Vance told colleagues. “But it’s going to make rail transportation a little more expensive in the service of safety.” Republicans should not, he added, stand for “corporate arrogance over our own people . . . The people of East Palestine are going to deal with what Norfolk Southern did for the next generation — the mental health costs, the physical health costs, the economic damage, the loss of home and property values.”

Cantwell’s interest is understandable and long-standing: 44 million tons of hazardous materials, including 4 million gallons of crude oil, pass by rail through Washington state each year. The rail lines go through downtown Spokane and Pasco and through a mile-long tunnel beneath downtown Seattle. Fighting a fire in the tunnel would be well nigh impossible, Cantwell was told by emergency services folk in a briefing some years back. Only 14 percent of the state’s fire departments have a special hazardous-materials team equipped to respond to spills.

Cantwell spoke of both longstanding and immediate concerns, saying: “Less than a week ago, a Burlington Northern-Santa Fe train derailed in my home state of Washington, on the Swinomish Reservation in Skagit County, spilling (3,100) gallons near the Padilla Bay waterfront, a sensitive aquatic ecosystem. These are important issues for all Americans.”

A much bigger spill occurred hereabouts in 2016. A 96-car-long Union Pacific oil train, carrying crude oil from North Dakota and headed for a refinery in Tacoma, derailed in the Columbia Gorge National Scenic Area, catching fire and spilling 42,000 gallons. The National Transportation Safety Board chose not to investigate the derailment, on grounds nobody was killed or injured and that the derailment did not pose a significant safety issue.

The Railway Safety Act is long overdue. The country’s railroads have long taken shelter behind the 135-year-old Interstate Commerce Act, and have long batted away states’ attempts to impose safety requirements. They won’t even tell state regulators what and how much “hazardous” material is passing through their communities.

The pending legislation mandates the use of technology that can identify equipment failures, prevents hasty inspection of rail cars, and ensures trains carrying explosive materials like the East Palestine train comply with stronger safety regulations. It provides funding for first responders to buy equipment and requires railroads to tell states what materials are being carried through their communities. Specifics include:

1. It requires hotbox detectors and that they be deployed an average of every 15 miles. Currently, railroads observe a voluntary system on one detector for every 25 miles.
2. The legislation expands types of materials deemed “hazardous.” Vinyl chloride was not on the list because it is a flammable gas, not a flammable liquid.
3. The bill requires that states be notified of hazardous materials, types and frequency with which they are carried through cities and towns.
4. The act would require two crew members to operate trains and end quick “30 second inspections” mentioned in an internal Norfolk Southern memo. The train that derailed and caught fire in Ohio did have a second crewman who identified that a fire had started and thought to set a manual brake so the train would not roll away.

The last provision is vitally important. Ten years ago, a train in which the brake had not been set rolled down a 1.2 percent grade, into the town of Lac-Megantic, Quebec, setting off a conflagration that destroyed 30 buildings and killed 47 people. It’s the deadliest such accident since Canada’s confederation in 1867.

Advocates for oil pipelines, such as Canada’s Trans-Mountain Pipeline being tripled in capacity with its terminus in Burnaby, British Columbia bordering on Vancouver, have long argued that pipelines are safer than oil trains. They’re probably right. Train accidents have been on the upswing. The Anacortes and Ferndale refineries, in this state, have been receiving more and more of their crude oil by train.

“Overconfidence breeds complacency and complacency breeds disaster,” Sen. Ed Markey, D-Mass. said during markup of the rail safety legislation. Sen. Amy Klobuchar, D-Minn., whose state has experienced derailments, added: “It’s past time to put in place stronger rail safety standards and more accountability for violations.”

Norfolk Southern has taken a $387 million charge against its first quarter 2023 earnings, obviously related to the East Palestine derailment. The U.S. Justice Department has sued the company seeking to assure that the railroad pays the full cost of cleanup and long-term effects in East Palestine, a community of 4,700 residents.

Sen. Cantwell has taken on the rail safety issue for a decade or more, since the Lac-Megantic tragedy. It has evoked little public interest until ex-President Trump showed up at East Palestine and condemned President Biden for not visiting. (Trump carried the town by a substantial margin in the 2020 presidential election.) Sens. Ron Wyden and Jeff Merkley, D-Oregon, got nowhere with legislation that would have required the National Transportation Safety Board to investigate such accidents as the Union Pacific derailment in the Columbia Gorge.

East Palestine residents have paid a price, complaining of rashes and breathing difficulties, particularly after Norfolk Southern conducted a “controlled burn” of vinyl chloride that spilled from its train. But they have refocused attention on rail safety which has led to bipartisan legislation in the Senate.

The Railway Safety Act still faces an uphill climb to get through Congress. With his customary nastiness, Sen. Ted Cruz, R-Texas, has spoken out against it,  saying the legislation would give “a free hand to aggressively restrict the movement of coal, oil, natural gas, ethanol, and other essential commodities that the radical green movement hates.”

But GOP colleague Sen. Vance noted a lukewarm opinion by the Association of American Railroads, saying: “They would not be supporting it if they thought it would make it impossible to transport their product by rail.”