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become certified to carry out and assist in enforcement of many railroad safety regulations. The major concern with the State inspection programs is the constant need to ensure that State employed inspectors meet Federal qualifications. Importantly, the judicial enforcement power resides primarily with the Department of Transportation. Recognizing that basic regulatory authority over safety should be kept within one Federal agency, the House Committee on Interstate and Foreign Commerce stated that "The Committee does not believe that safety in the Nation's railroads would be advanced sufficiently by subjecting the national rail system to a variety of enforcement in 50 different judical and administrative systems. Accoringly, while it has preserved the framework of certification, it has modified the concept insofar as it applies to the nations' rail system to make all enforcement Federal in nature."
"The Committee believes, however, that such a vital part of our interstate commerce such as railroads should not be subject to this multiplicity of enforcement by various certifying States as well as the Federal Government." (Emphasis added) (H. Rpt. 91-1194, 91st Cong., 2nd Sess., 1970, pp. 11 and 19.)
Under current Section 207 of the Federal Railroad Safety Act (45 U.S.C. Sec. 436), the Secretary of Transportation receives notice of a violation of a regulation from a state agency participating in investigative and enforcement activities under the 1970 Act. He then has 90 days to assess a penalty, commence a civil action to obtain an injuction, or state in writing that no violation has occurred. If he fails to take one of these actions, the participating state agency may apply to the local United States district court for enforcement.
Uniformity of regulation is at least as important to safety today as it was in 1970 when the Federal Railroad Safety Act was passed. For the sake of safety, the careful scheme allocating rail safety responsibilities between the Secretary of Transportation and the certified state agencies in the 1970 Act should not be disturbed so as in any way to diminish that essential uniformity.
The proposed legislation which will be submitted to the Congress by the Administration has not been made available in sufficient time for us to address the specific recommendations. We would appreciate the opportunity to submit whatever comments we may have after a reasonable opportunity to review the proposed legislation.
We have been advised that the Department of Transportation is recommending legislation which would broaden the Secretary's emergency powers under the Railroad Safety Act and which would limit a carrier's right to seek immediate judicial relief from unwarranted and unreasonable action by the Secretary. Of course, we want an opportunity to review the specific language of the bill.
My initial reaction to this recommendation is that the authority to issue emergency orders affecting conditions or practices is inherently different than the authority to issue emergency orders affecting specific facilities or equipment because the former is likely to cover many safe as well as the few unsafe conditions unless formulated in a precise manner. The courts have suggested that the present law might permit emergency orders to cover an entire railroad system but only where the Secretary has found that the emergency exists over the entire system. To the extent that the Administration's proposal actually expends the Secretary's authority, the legislation should specifically require that the scope of the order be limited to the identified unsafe conditions. Thus any broadening of the Secretary's emergency powers should include safeguards which would insure that the scope of any emergency order is limited to those conditions which are directly related to the unsafe situations identified by the Secretary. Additionally, the right of obtaining immediate judicial relief where circumstances warrant should not be delayed or restricted. For example, the court review should not be limited to the question of whether an emergency actually exists. The scope of the Secretary's order and the question of whether the order rationally addresses the perceived emergency condition should also be subject to immediate judicial review.
There may be additional recommendations in the Administration's proposal which we may want to address.
The allocation of liability for damages resulting from a railroad accident is a matter of great importance to the railroads. The potential liability arising from an accident, especially one involving hazardous materials, is astronomical and could financially devastate even the most profitable railroads. For example, in one recent
accident involving the release of a hazardous material from a single tank car, legal actions have been filed alleging damages totaling in excess of $800 million. In another case, a Florida jury recently awarded damages of $18 million for the wrongful death of a husband and wife.
Damages resulting from a railroad accident can conveniently be divided into three categories. The first is damage to lading and equipment. As a matter of substantive law, the railroads are liable for these costs, although in some cases a railroad may (with ICC approval) publish released rates under which a shipper will receive an amount under actual value for damage to its shipment in exchange for a reduced
A second category of damages is clean-up costs. These costs include removal of damaged equipment, repair of damaged track and structure, and environmental clean-up costs. The latter costs have proved to be very large in some cases; the cost of cleaning up a spill of dioxin in Sturgeon, Missouri, totaled approximately $2.6 million. The cost of cleaning up a spill of several hazardous materials at Inwood, Indiana, has surpassed $4 million, and clean-up efforts there have not been completed. These costs are borne, at least initially, by the railroads.
The third category of damages is injury to third parties and damage to their property. The potential cost of damages in this category is virtually unlimited. An example is the over $800 million in alleged damages mentioned above.
State tort law normally allocates the cost of paying damages which are caused by a railroad accident, and in most cases the allocation is made on the basis of fault. That is, those parties who are found to be at fault (tortfeasors) are liable for the damages. Among parties found to be at fault, liability is normally joint and several, meaning that an injured party may, at his option, sue any one or more of the tortfeasors, or all of them together. However, because the railroads are so highly visible and are certain to maintain a presence in the community where an accident occurred, they are virtually always named as a defendant in the tort actions resulting from a railroad accident, regardless of their degree of culpability.
In some instances, a railroad will the only defendant named in a law suit, and because of the nature of joint and several liability, that railroad would be liable for all of the damages even though its fault is de minimis. In most states the railroad could recover part of the damages from fellow tortfeasors, but some states do not allow a right of contribution among joint tortfeasors. Even where a defendent railroad can enforce a right of contribution against joint tortfeasors, it must incur the trouble and expense of bringing a law suit against the joint tortfeasors and proving their culpability.
There is no doubt that assessing liability on the basis of fault deters negligent behavior. However, placing a disproportionate share of the liability on a tortfeasor who is only slightly at fault is unlikely to change his behavior, as well as being unfair. Moreover, imposing additional strict liability on railroads which carry hazardous materials-essentially making railroads insurers against all damages regardless of their fault-results in no additional incentives to liability.
The largest potential railroad liability arises from the transportation of hazardous materials. A single hazardous materials accident could put any railroad out of business. Nonetheless, railroads are not free to respond to this threat to their very existence in the same way as unregulated businesses. As common carriers, railroads are not free to respond to this threat to their very existence in the same way as unregulated businesses. As common carriers, railroads are obligated to carry any shipment properly tendered to them; and the railroads recognize that, because their hazardous materials safety record is better than the records of other modes, it is in the public interest to enforce the common carrier obligation. Neither are the railroads able freely to adjust their rates to whatever level they think will adequately compensate them for their risk. In sum then, while the railroads are in the vanguard of potential defendants after a hazardous materials accident, they cannot react and protect themselves like ordinary businesses.
HAZARDOUS MATERIALS AND EMERGENCY RESPONSE
Within the Association of American Railroads, the Bureau of Explosives is charged with the duty of advancing the railroad industry's superb safety record in the transportation of hazardous materials.
The Bureau operates with a field force of 19 inspectors in the U.S. and Canada, a headquarters' professional staff of 8 and a laboratory staffed with three chemists. The field force spends most of its time performing safety audit inspections on railroad facilities and at the production and shipping sites of the Bureau's over 500 member plants. During the course of a visit to, for instance, a member plant's tank car loading rack, the Bureau inspector will not only verify compliance with applica
ble DOT regulations, he or she will meet with the loading rack personnel to explain new regulations and to stress the importance of following the safest possible practices, whether or not codified in the regulations.
These visits also occur between the Bureau inspectors and railroad employees working in yards, stations, stores departments, and in train and engine service. Because of their special proximity to hazardous materials cars, a special tape/slide show was developed by the Bureau of Explosives Steering Committee for train and engine service employees. The program is designed to make it easier (and therefore safer) for operating employees to understand and follow the rules on inspecting, switching, handling, and train placement of cars of dangerous chemicals. Several major railroads used the format and content of the Bureau program to produce their own, in order to meet the unique circumstances-whether by reason of special carrier rules, yard layout, traffic patterns or geography and climate-on individual railroads.
In performing their other major activity, members of the Bureau's force of inspectors assist railroads in the mitigation of damage following derailments. Often the outcome of a discharge of hazardous commodities can be materially affected by the early steps taken to clean it up; sometimes, the safety of the wreck clearing personnel can be greatly enhanced by a proper ordering of the priorities assigned to the rerailing, lading transfer or venting of the cars involved in the derailment. The Bureau personnel on scene at a derailment report to and work through the senior railroad official present. Nearly seventy five years of experience in helping the railroad industry and shippers of hazardous materials has proven the worth of this method of emergency response.
Among the many functions of the Bureau's headquarter's staff is the collection of data on the movements of hazardous materials and on accidents involving them. Bureau of Explosives data shows that the transportation of dangerous commodities by railroad is not a casual business. A quick overview of the major statistics will demonstrate:
In 1978 the railroads moved about 1.1 million carloads of hazardous materials, 80 percent of those were tank cars.
42 percent of the hazardous materials traffic is made up of just five commodities: Liquified petroleum gases, caustic soda, anhydrous ammonia, sulfuric acid, and chlorine.
The "Top 100" dangerous commodities account for 98 percent of their total traffic. About half of the nation's 200,000 and some tankers are not only asigned to specific commodities-most tank cars would fall into that category-they spend virtually all of their economic lives rolling between the same two points, often on a set time schedule. What these numbers show is that the shippers and the railroads should be intimately familiar with each others' operating needs and have worked out safe practices to accomplish the necessary commerce in dangerous chemicals. That is the fact.
Of the 1.1 million cars of regulated hazardous materials transported in 1978, only 698 were reported to the Bureau as being in any way derailed and only 151 of them lost lading as a result of a derailment. This means that the railroad industry accomplished a derailment/product loss ratio of .014 percent. Another 852 cars were reported to have leaked or splashed some product. These did not all result in an injury, but the railroads are very concered about "leakers and splashers" because almost always they result from someone at a shippers' loading point failing to secure the fittings or dispatching a car with defective gaskets or seals—and because almost always it is the railroad employee who is injured as a result of someone else's carlessness.
The railroads believe that even a "leak and splash" ratio of .08 percent can be improved and the Bureau, a major southeastern railroad and a group of concerned shippers got together to prove it. One of the highest concentrations of leak and splash incidents seemed to be keyed to a seasonal movement of a corrosive fertilizer solution out of a realtively small area of Florida. Several visits by the Bureau's inspector assigned to that district, conferences between the carrier and the shippers and a decision to institute car maintenance practices which would better ensure the departure of fully transportation ready vehicles paid off. From more than 60 incidents of leaking or splashing in 1978, there have been fewer than five during the current season.
This kind of record is not just a chance occurrence. In 1978 there were 221 injuries related to the transportation of hazardous materials-in 1979, there were just 14. In 1979 there were no deaths related to the rail carriage of dangerous commodities. This was a very typical year, for despite all the publicity that railroad accidents involving hazardous materials receive, during the decade from 1970 to
1979 there were no fatalities due to this kind of transportation in half those years. In three other years, fatalities totalled one or two. Only during 1974, with ten deaths, and 1978, with 24, was the safety record disrupted. Seven of the 1974 deaths happened at Decatur, Illinois, when a tank car of LPG suffered a head puncture and the resulting vapor cloud errupted into flame with terrible results. The tragedies in 1978 occcurred at Waverly, Tennessee and Youngstown, Florida. At Waverly, a pressurized car of LPG suddenly opened up several days after the derailment and at Youngstown, the rails were spread open by vandals, leading to the first deaths due to the rail transportation of chlorine in several dacades.
The Decatur accident involved a car type-the uninsulated, non-protected head, unshelf-couplered car-that soon won't exist in this country. The improvements to the type 112 and 114 tank cars, developed out of one of the most massive research efforts ever funded by private industry, will be retrofitted by December 31, 1980. The Waverly phenomenon is believed to have been caused by a critical stressing of the tank steel such that it actually changed its grain structure. The ability to see such stresses and to take steps to reduce the chances that they will lead to catastrophic failure are now considerably more advanced than they were in 1978. The chances of an accident like Youngstown happening again are less capable of prediction-and beyond the practical ability of the railroad industry to prevent.
In addition to the 112 and 114 tank cars just referred to there is another class of tank car that can also be utilized to carry liquefied compressed gases. This is known as a 105 specification car. The 105 car differs from the 112 and 114 car in that it incorporates 4 inches of fiberglass insulation around the tank shell.
All 112, 114 and 105 cars are equipped with a pressure relief valve to allow venting when the internal pressure reaches the level of a predetermined safety factor. Venting, therefore, is a safety mechanism to accommodate the properties of these liquefied compressed gases which must be moved under pressure. This fiberglass insulation on 105 cars also provides some protection against very high temperatures, as in the case of fires, although in this circumstance it is not as effective as the high-temperature insulation installed on the modified 112 and 114 cars. The 105 cars, of course, could be retrofitted precisely as the 112 and 114 cars have been; that is, they could be required to utilize top and bottom shelf couplers, head shields and high-temperature insulation. The retrofit program for the 112 and 114 cars added about $10,000 to the cost of the cars and resulted in some shift in commodities to the highway because of normal economic competitive forces that govern transportation decisions.
Since the 105 car does have some insulation and does have a steel protective jacket, although not as thick or as protective as the head shield required on the modified 112 and 114 cars, it is protected to a degree against head punctures and violent ruptures caused by fire. It is a good solution, but may not be quite as good as the 112 and 114 retrofit solution. In this regard, intensive study is in progress founded by the FRA and by the RPI-AAR cooperative Tank Car Safety Test and Research Project. This study is developing information on the mechanical and the thermal resistance to damage of 105 tank cars in the derailment environment. The results of these tests and fire tests and impact tests identical in purpose to those run previously on the 112 and 114 cars should be available by mid-1981. By that time, a decision can be made, based on engineering data, that will establish the extent of added protection, if any, necessary on 105 cars to bring them to a level of safety comparable to that of the retrofitted 112 and 114 cars. It is possible that no additional insulation will be required.
It seems inappropriate to pursue a legislative solution to this problem at this time in light of the studies that are in progress.
The research efforts of this industry and the training efforts of Bureau of Explosives inspectors, mentioned above, are not the only efforts which have been made to improve a good safety record. On February 23, 1978 a group of railroad and chemical executives met to discuss their common concerns about the safety of transporting hazardous materials by rail. Out of this meeting the Inter-Industry Task Force on Rail Transportation of Hazardous Materials was formed. The Task Force issued an interim report on July 21, 1978 and its final report less than a year later, on June 14, 1979. Copies of both of the reports will be made available in order that the Congress can review at length the efforts of the relevant industries to act without governmental involvement or coercion to bring about beneficial change.
One of the most significant accomplishments of the Task Force was the creation of a program-"Recognizing and Identifying Hazardous Materials"-aimed at saving the lives of the often volunteer emergency response forces who are called to protect lives and property in the surrounding community when hazardous material transportation accidents occur. The program was designed to be shown to about 250,000
volunteer firemen in the next two years. It seeks to acquaint fire fighters with the potential locations of hazardous materials in their communities-the hospital, the agricultural supplies dealer, the local gasoline stations-and to help them use this ability to recognize dangerous commodities for their safety at the scene of a transportation accident. Persons seeing the three carousels of slides (with tape cassettes) are told where to find shipping documents and how to use the information on those papers to identify the products. Once identification is accomplished, the program demonstrates several available sources of emergency information-publications of the Bureau and other recognized experts-and the CMA's CHEMTREC service. "Recognizing and Identifying Hazardous Materials" was prepared by the shipping and transporting companies without government funding and is being distributed and shown at no cost to any fire company or community requesting it. Because of the outstanding talents offered by the railroad and chemical industries in developing the program and its distribution system, the total cost will be miniscule in comparison to what is often thought of in programs of such scope.
Paradoxically, the fact that the program is being offered free has been one of the stumbling blocks in the way of a demand for showings in the first months of its availability. Fire fighters long accustomed to the blandishments of emergency response course salesmen have a hard time believing that there is no charge. AAR is pleased to report that those who have seen the program have given it rave reviews. As just one recent example, a group of fire companies from nearby suburuban Maryland was viewing the program on a Saturday night when time constraints forced a halt before all the material had been presented. Over a hundred of the previous night's participants returned early Sunday morning-on their own time— to finish seeing the last carousel.
Some have alleged that one of the problems at the scene of a transportation accident involving hazardous materials is the identification of those commodities. It was in an effort to eliminate such problems that the railroad industry developed a special part of the Standard Transportation Commodity Code to relate specifically to hazardous materials. The STC Code was already in use throughout the rail industry (and much of the remainder of surface transportation as well) because it provided a commodity specific identification number for each item known to move in com
It was and is-the basis for reporting movement statistics to the Interstate Commerce Commission and, because the STCC numbers were designed with electronic data processing in mind, the potential to expand the usefulness of the sevendigit commodity identifiers is limited only by the needs and imagination of the computer user.
From STCC came the "49-Series" numbers (all beginning: 49 000 00) to not only identify hazardous materials but to rank them according to primary, secondary and teritiary levels of hazard. Because STCC is product specific, a person burned, for instance, will be able to furnish the medical attendants the exact name of the material (if it was so identified by the shipper) rather than just the generic "Flammable Liquid" descriptor.
Users of STCC have available to them specific identifiers for each of the more than 1600 commodities now regulated by the DOT. Through foresight, the "49Series" was also designed to be able to accommodate EPA-designated hazardous substances and hazardous wastes when DOT adds them to the commodities regulated for transportation. In practice, the capacity of a seven digit number with internal divisions is limitless.
Of course, commodity identification is only the beginning of the uses to which STCC numbers are put on today's railroads. With computers, the generation of a train consist containing hazardous materials can also cause the generation of emergency response information to accompany those cars to destination. The information automatically triggered is that contained in the Bureau of Explosives publication "Emergency Handling of Hazardous Materials in Surface Transportation." This manual has been widely distributed within the transportation and emergency response communities and, thus, the concurrence of the information at an emergency scene lends a necessary degree of confidence in it.
Once the STCC number for a hazardous materials shipment has been entered into a railroad's computer, it can be put to a multitude of uses. As an example, if a carload of a particular commodity is found leaking in a yard and must be transferred, the yard file can be electronically searched for an empty car last containing a commodity compatible with the load which must be transferred. Not only this, but the yard file can also show the presence and location of cars carrying materials which could be used to neutralize the spill. If such a car does not now exist in the yard, the consists of incoming trains can be searched and, when the right match is