Regulation of hazardous material by rail

So I learned something new today, and I thought I'd share it with you all.

As far as I can tell, there is no government regulation of hazardous material routing by rail.*

Why is this important? Let me give an example, and the reason I went fishing for this information.

Global Partners, an oil and gas company with a refinery in Revere and an transhipment point in Albany, among others, mixes ethanol and gas at the Revere refinery. Currently, it receives ethanol inputs by barge from Motiva in the Port of Providence, which receives ethanol both by barge and rail from Global's Albany facility. Rail shipments meander through Connecticut and Massachusetts before heading into Providence.** Both Albany and Providence have made significant investments in their ports in recent years to facilitate this trade. Providence also receives ethanol by barge from international ports.

A couple of years ago, Global proposed a project with PanAm Railways, which owns the spur that directly serves Global's facility, to improve the spur and create a space on their property to store ethanol cars, enabling them to receive ethanol by rail as well as by barge. They would share the costs, PanAm gets new freight service on the northern east-west route it just partnered with Norfolk Southern and MassDOT to improve, Global gets a redundancy in its supply chain, and everyone wins.

Well, no.

Any route to Global's facility passes through the most densely populated areas of Massachusetts, areas which also happen to be rather lacking in the alcohol fire fighting foam that a derailment would necessitate. Perhaps not coincidentally, with the exception of Belmont and West Somerville, nearly every census tract the routes pass through are designated environmental justice areas, with significant concentrations of minority and low-income populations. One route that passes through somewhat fewer EJ areas is instead on a railroad that is not up to the Class 3 standard that the MBTA commuter rail tracks maintain. Speaking of MBTA commuter rail, all potential routes include significant commuter rail traffic.

In other words, PanAm's and Global's sweet deal is a sweet deal only because all risk and payment for risk mitigation falls on someone else. Understandably, the local communities are raising their voices to the agencies they assume should have some say (MassDOT and MassDEP), and even managed to get a bill through the Mass legislature asking for further study.


Mass DOT did a study, and identified many of these concerns. It wasn't perfect (no study is), but it highlighted the EJ populations, noted the lack of foam and poor track conditions, and made a number of recommendations and identified sources of public funds for mitigation.

Yes, public funds. Why? Because MassDOT has zero leverage against the companies, as far as I can tell. MassDEP gets to permit the site, but not the route taken, so it can ensure state of the art storage once the ethanol makes it to Revere, but I don't think it can require that PanAm and Global buy the Revere Fire Department foam trucks or pay to upgrade tracks and improve grade crossings. Sprinkled throughout the federal hazmat transportation regulations (49 CFR 171,172, and 174) is federal preemption of state regulation, specifically forbidding things like prohibiting the transportation of hazmat on certain routes.

Now, such a clause isn't totally crazy, and it's one of the reasons a federalist system has a lot of merit. Without such a clause, at worst, every state and community with political power bans hazmat transportation immediately and relegates it to those areas, often EJ areas, with little political power, and at best, results in disjointed and mismatched networks. It makes sense to have a managed and planned network, where one can assemble resources, assure shortest distances and minimum damages, and prepare contingency plans nationwide.

Such a system (mostly) exists on the highways. Each state designates hazmat routes, free from tunnels and avoiding populated areas where possible, runs them through a public outreach process, and submits them to the federal government, which then reviews and approves. Boston just had a run-in with this following completion of the Big Dig, when the truckers leaving Revere refineries wanted to take surface streets over the Dig and Boston wanted them to go around. The truckers lost that one.

For rail though, there's no such procedure. Even though the MBTA owns nearly all the track within the densely population areas, the contracts they made with the former freight owners long ago gave the former owners exclusive freight rights to the track. While the MBTA and other passenger trains take priority, the MBTA cannot refuse a particular shipment. Therefore, even though Mass DOT reviewed three route alternatives and clearly showed (though did not tell) a clear winner safety-wise, they can't ensure that it is the one selected, nor will any sort of environmental impact statement be conducted.

Perhaps less important but equally intriguing to me, there is also no one looking at the impact this may have (beneficial or not) on Providence. On the one hand, if rail shipments of ethanol there decrease, theoretically there's a safety benefit to residents, and given the meandering route nature, there may be just as many affected residents. On the other, there's also investment that may now go to waste and barge owners in Providence sitting empty.

That second part is all the more reason for the feds to be involved. Mass DOT should be allowed to select an alternative and require that the private companies provide mitigation, but the feds should both a) verify that Mass DOT isn't squashing interstate commerce (setting aside for now the valid question of whether more ethanol is worth squashing) and b) that this more direct route to the customer is not putting more lives at risk both from fire and from an economic and job loss standard.

I yearn for the day when an environmental impact assessment gets to really ask questions like, "What is the net job loss?" "Where are those jobs?" "What are prospects for laid off employees getting rehired?" and so on, as well as "Really, Global? You're betting on ethanol now? Would you still make that bet if you covered rescue costs in the event of an emergency, as well as yearly training costs for fire personnel and track improvements? Don't those barges just suddenly gleam?"



*Rail carriers self assess routes with explosives and poisonous vapors. Assessments are yearly reviews of routes with shipments and alternative routes, and are secret/classified unless specifically requested by certain government officials. Not at all the same thing (49 CFR 172.820).
**If I can make the map work, I will post it. I'm not kidding about the meander. It crosses the Mass border like three times, all to avoid being charged an arm and a leg by Amtrak.