Long train regulations coming?
Jeremy Lott
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The Senate is aiming for a late April markup of the Railway Safety Act of 2023, which would further regulate railroads after the East Palestine, Ohio, disaster.
The Feb. 3 38-car train derailment led to a chemical spill in that Ohio town of about 4,700 people, a few miles west of the Pennsylvania state line. The episode became a controlled burn, with a temporary evacuation of most locals, and triggered disputes over possible soil and air contamination.
OHIO TRAIN DERAILMENT: FEDERAL OFFICIALS CONDUCT HEALTH SURVEYS OF EAST PALESTINE FAMILIES
For now, the railroads are not publicly fighting the legislation.
“[The Association of American Railroads] has not opposed the bill but has noted there are elements that could use closer evaluation,” Ted Greener, spokesman for the AAR, which represents railroads before Congress, told the Washington Examiner.
Whether that amounts to the railroads keeping their powder dry, however, remains to be seen. That likely will have a lot to do with the final shape that the bill takes.
Greener pointed to the congressional testimony of his boss, AAR CEO Ian Jefferies, before a Senate Commerce, Science, and Transportation Committee hearing.
“Contrary to statements that have been made, the AAR has not taken a position on this bill,” Jefferies said on March 22. “Frankly, I think there’s a feasible path forward on almost every provision in there.”
Then came the fine print.
“Now, your definition of feasible and mine may not be the same. But I think there’s an opportunity to work together to try to get to yes,” he added.
Jefferies singled out as unworkable one provision that would apply “upward of 12 new rulemakings around any train that’s moving at least one car of hazmat,” or hazardous materials. Jefferies further explained why the railroads have a problem with it, namely the federal government’s expansive definition of hazardous materials.
“Over 40% of trains move with at least one car of hazmat,” Jefferies said. “Now, that could be a flammable gas. It could also be asphalt. And in my view, I’m not sure applying those same levels of restrictions for flammable gases and asphalt makes a lot of sense because of the overarching impacts it can have on the network overall.”
Jefferies conceded that “there’s a logical case to be made for a parallel requirement for trains carrying flammable gases as we currently have for flammable liquids.” But he emphasized a “risk-based approach that doesn’t treat the entire class of commodities the same but really focuses on what is truly a higher risk train,” which is not currently part of the bill.
That was just one objection, of many, that the railroads have to the Railway Safety Act. They also charge that it sides with unions on crew sizes and track inspectors when neither was a factor in the East Palestine derailment. Also objectionable to railroads is that the bill would give Transportation Secretary Pete Buttigieg, and any future person who sits in his chair, far-reaching, practically uncheckable regulatory powers.
At the March hearing, bill co-sponsor Sen. J.D. Vance (R-OH) lamented complaints “from industry groups” about his legislation. Along with “alleged conservative activists,” Vance said.
“The most outrageous and the most ridiculous thing that I’ve heard from industry groups and other activists in response to this bill is that it’s somehow a kind of Bolshevism to require the railways to engage in proper safety standards,” he said.
Vance seems clearly impatient to do something in response to a derailment that has affected many of his constituents and has become a cause celebre. But his own chamber of Congress tends to move deliberately slow on such things, and across the Capitol, the Republican-majority House has different priorities.
The House version of do-somethingism is currently as focused on probing the bureaucracy of the federal government as roasting the railroads. For instance, Republican members of the House Transportation and Infrastructure Committee wrote a letter to Environmental Protection Agency Administrator Michael Regan “requesting information on EPA’s decision-making process and actions following the February 3, 2023, train derailment in East Palestine, Ohio.”
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“While EPA continues monitoring environmental quality, it announced that the air and water inside the evacuation zone are safe,” the letter stated. “Despite such claims by the EPA, East Palestine residents continue to report noxious odors, pollutants in the water and soil, and remain concerned about the safety of returning to normal living and the long-term impacts of the chemicals in the environment.”
The letter added, “Further, questions have arisen regarding the decision to conduct the controlled burn of hazardous chemicals versus employing other, potentially safer alternatives. Accordingly, we seek clarification about the decision-making process employed by the EPA to address the accident and resulting damages.”