Railroad laws keep safety records in private hands
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Last Friday, a freight train operated by Norfolk Southern Corp derailed in western Pennsylvania, flipping off the tracks and slamming into a steel refinery. No one was injured, fortunately, but some of the tanks punctured, leaking thousands of gallons of petroleum crude oil into the snow-covered ground not a mile from the center of the small town of Vandergrift. That was fortunate, too—the oil, at least, didn’t explode.
It certainly seems that it could have. Petroleum crude, mostly coming from the oil fields of North Dakota, has gone from a nearly nonexistent part of the freight rail business to a major portion of it in the span of just a couple years. And with the exponential increase in shipments has come a series of incidents in which trains carrying crude derailed, with some igniting in massive explosions.
In December, a train carrying crude derailed and exploded in Lac-Megantic, Quebec, killing 47 people and burning down half the town. Just weeks later, another train carrying crude derailed and exploded in a massive fireball that forced half the city of Casselton, North Dakota to evacuate. Then, just a month ago, another train carrying crude oil derailed while crossing a bridge over the Schuylkill River in Philadelphia.
No one was injured, and the oil didn’t appear to have leaked—but the incident, as other such incidents have done elsewhere, has prompted local officials and residents to ask a straightforward question: How safe are the railroads that pass through our communities?
But it’s a question to which they may find it surprisingly difficult to get answers.
That’s because while private railroads are regulated by the federal government, the very regulations meant to ensure safe railroads also make it difficult to impossible for local officials and the public at large to know anything about the state of a railroad’s bridges, tunnels and tracks.
And asking federal regulators for that information might not help either—because federal regulators, in most instances, don’t have it either.
Private railroads are regulated by the Federal Railroad Administration (FRA), which sets out rules for everything from track maintenance to train speed limits. FRA officials have the right to inspect the railroads’ documents and to conduct their own inspections of railroad property and equipment.
But the primary burden of railroad inspection belongs to the railroads themselves, with rail companies required to inspect their own trains, tracks, bridges and tunnels.
The logic behind self-inspection is simple. Government isn’t remotely suited to inspect the tens of thousands of miles of railroad crossing the country. In fact, a report by the federal Government Accountability Office found that the FRA is able to itself inspect approximately 0.2% of the private rail system a year.
It’s a system both the FRA and the rail industry it regulates say has worked extremely well. Despite the recent high-profile accidents, rail accidents were at an all-time low the past two years running.
But it’s also a system that protects what the rail companies call “proprietary” information about the maintenance and safety records of their railroads.
While the FRA may request any such record from a railroad company, the companies aren’t required to file such reports routinely. Put another way, even though railroads are required to maintain certain standards and document that they are meeting those standards, the government does not, as matter of course, collect, review or make public those reports.
As a consequence, according to a 2007 Government Accountability Office report on railroad infrastructure safety, “Little information is publicly available on the condition of railroad bridges and tunnels… because the railroads consider this information proprietary and share it with the federal government selectively.”
And while the Rail Improvement Safety Act 2008 (RISA), passed shortly after that report, required private railroads to submit comprehensive “risk reduction plans” to the FRA, a separate law makes those reports and other safety information exempt from public Freedom of Information Act requests.
Another GAO report, issued last year, noted that FRA said railroad officials had “expressed concern that risks identified in the plans would leave them exposed to legal liability in the case of an accident.”
To be sure, the FRA investigates all rail accidents and issues reports, which are public and available online. But for public officials, residents or reporters trying to find information on the history or condition of a particular bridge, tunnel or stretch of railroad that didn’t happen to have recently been the subject of an FRA inspection, there is often no one to turn to for answers but the railroad itself—and the railroad doesn’t have to provide them.
It’s a lesson Philadelphia City Councilman Kenyatta Johnson has been learning since the Philadelphia derailment. In the wake of it, he began intensifying questions around the condition of CSX’s railroad as it passes through Philadelphia and in particular through the Grey’s Ferry neighborhood in his district, which has a looming railroad viaduct that residents have long said is, literally, crumbling.
Residents of the neighborhood “have been voicing their concerns and have felt a lack of serious response from CSX for at least three decades,” Johnson wrote in a recent statement to AxisPhilly. “These concerns go beyond issues that led to the train derailment.”
The company, he added, “has been less than attentive.”
Just days after the derailment, Johnson received a photograph of a human-sized piece of concrete lying just below the CSX viaduct. It looked like it had fallen, though CSX officials insist it had been “identified in a routine inspection” and removed intentionally.
Either way, Johnson has doubled down on his effort to get CSX to answer questions about the maintenance, history and safety of its railroad in Philadelphia. He’s asked for a public hearing before City Council, and a spokesman for Johnson said that CSX officials had agreed to provide documentation, though they haven’t yet done so.
AxisPhilly, meanwhile, asked both the Federal Railroad Administration and CSX for a history of safety inspections of the bridge on which the derailment occurred. An FRA official referred us to CSX, since the federal authority doesn’t keep such records itself.
Robert Sullivan, a spokesman for CSX, declined to provide such documents, replying in a statement that “CSX meets or exceeds all FRA requirements for inspections,” and that “Those records are available for inspection and reproduction by the Federal Railroad Administration”—not, the statement appeared to suggest, available to the public at large.
Asked to clarify that the reply was a denial of AxisPhilly’s records request, CSX did not respond.
Photo: Associated Press