The Case for More Regulation

In March of 1996, all 1,700 residents of Weyauwega, Wisconsin skipped town for three weeks -- involuntarily. The reason for their impromptu spring break: an 81-car train carrying propane and sodium hydroxide derailed and exploded just outside the city center, creating a toxic fire so dangerous the entire community had to be evacuated while authorities struggled to contain it. But the Weyauwegans should consider themselves lucky. In Chicago this past August, 19 people were treated for chemical exposure at area hospitals after the hose on a truck pumping sulfur trioxide into a holding tank broke and released a 50 foot high lethal cloud. And in California several years earlier, 700 people fell ill after a tanker-car full of metam sodium plunged into the Sacramento River, killing all water life within 40 miles and contaminating California's largest reservoir.These events point to a disturbing trend: serious accidents involving the transport of hazardous materials, or "hazmats," on trucks and trains have become an almost daily occurrence. In 1995 alone, there were 12,712 incidents involving hazardous materials released from trucks and 1,330 from rail cars. But what's really remarkable about these cases is that they were not more disastrous. Considering the recent massive increase in the volume of hazardous materials streaming across our nation's highways and railroads, combined with the industry's cavalier attitude towards safety and the government's cross-your-fingers-and-hope-for-the-best approach to regulation, it's a wonder we haven't witnessed a truly devastating catastrophe. Environmentalists warn it's only a matter of time before we're treated to a tragedy on the scale of the 1984 accident in Bhopal, India -- where 3,500 people were suffocated in their sleep by a 20-ton cloud of methyl isocyanate seeping from a Union Carbide plant. That's not to say there haven't been lots of close calls.Last December, the Department of Transportation's Federal Railroad Administration (FRA) discovered that despite the fact that military bombs being carried aboard a Union Pacific train had broken through their containers and were protruding onto the floor of a flat car, the company had allowed the train to travel from Oklahoma to California through several major terminals without taking any corrective action. As one FRA official noted in an internal memo: "[Union Pacific] needs a big time wake up call. É The way we see it, if they can't take care of class A explosives, makes you wonder what they are doing with other HM [hazardous materials]."And there are plenty of other hazardous materials to wonder about. Between 1990 and 1995, hazmat transport by rail increased 27 percent to almost 1.8 million cars a year, each one carrying a payload that makes the lethal cargo aboard ValuJet flight 592 look like a shipment of fire-retardant blankets. Pick your poison: there are toxic-by-inhalation chemicals like chlorine and hydrogen fluoride, which can roll across miles of countryside in ground-hugging clouds that burn your body tissue, fill your lungs with fluid and cause you to literally drown in your own juices. There are explosives like ammonium nitrate-mix that with a little fuel and it's Oklahoma City time. Then, of course, there are your run-of-the-mill flammables, like liquefied petroleum gas, or propane, which comprises the bulk of the roughly four billion tons of hazardous materials hauled across our highways every year, and which, when released, vaporizes into a volatile gas that can ignite into a jet flame if so much as a spark comes near.And finally, there's the mother of all hazmats, nuclear waste, which could become a lot more familiar if the government goes ahead with plans to open a temporary nuclear materials repository in Nevada. By as early as 1999, up to 100,000 shipments of highly radioactive spent fuel from reactors across the country could begin the long journey to the storage site by rail and truck -- in containers whose crash worthiness has been tested almost exclusively through computer simulations. With all these goodies making their way from sea to shining sea, perhaps it's not surprising that even some chemical company executives are reaching for their gas masks. "It scares the living daylights out of me," confides one former DuPont official.Dying for a JobThe ugly reality of our industrial advances and booming economy is that we need -- or at least want -- more and more products made from dangerous substances. Unless we drastically change our consumption habits, one way or another these hazardous materials are going to have to be lugged around the country. But surely our government and industries have taken steps to ensure that the vehicles hauling these toxins are piloted by specially trained experts -- crack professionals, alert and ready for the worst, right? Try zombified novices, bleary-eyed and poorly prepared.To start with, hazardous material transporters are dangerously overworked. At the railroads, the rise in hazardous shipments has been accompanied by large scale downsizing. According to a study by an environmental group called The Good Neighbor Project, between 1985 and 1995, Union Pacific, by far the nation's largest hazmat rail carrier, doubled the ratio of its car shipments to workers from 85:1 to 170:1. Freight trains once served by teams of 5 or 6 people are now left in the hands of one engineer and a conductor. This duo is expected to work for up to 12 hours, take 8 hours off (for eating, sleeping, bill paying, etc.), then come back for more. The length of their shifts is bad enough: It's hard to imagine staying focused on your favorite TV show for 12 hours straight, let alone an endless stretch of railroad track -- especially as viewed from an overheated, deafeningly loud engine cabin. But to make matters worse, rail workers are generally scheduled without regard to the basic requirements of a normal sleep cycle. Thus an engineer who is happily tucked in bed at 3 a.m. on one morning, is just as likely to find himself at the head of a 70-car train at 3 a.m. on the next -- having received no more than two hours advance notice."I've been forced to go out when I was so exhausted I hallucinated," recalls one Norfolk Southern engineer; "I've seen things that weren't there, almost gone past signals I thought were one color when they were another."Maybe that's what happened to the engineer of a Union Pacific train who was killed in July after he sped past a rail stop sign near Rossville, Kansas, and collided with an oncoming train. Hazardous materials aboard his train were burned in the crash, and Rossville's residents had to be evacuated. The collision was one of three fatal Union Pacific accidents since June that finally prompted the Federal Railroad Administration to launch an 80-man inspection of the rail company -- the most extensive investigation in the agency's history. After a week of probing, the FRA declared itself shocked, shocked, to discover that everyone from dispatchers, to engineers, to yard workers, were being "worked to the bone." Yet for years rail workers' unions have complained about such problems; last spring the Brotherhood of Locomotive Engineers even tried to shut Union Pacific down with a strike over safety, but they were halted by a court order. Still, according to the FRA's spokesman Jim Gower, the FRA "wasn't really aware of the vastness of the problem."But this was only the tip of the iceberg. The FRA also found that Union Pacific routinely violates the already onerous 12-hour work limit -- often keeping workers on duty for up to 17 hours at a stretch. Topping it all off, the agency determined that the training many workers receive is grossly inadequate and in some cases nonexistent -- with some employees ordered to operate sophisticated equipment they've never been taught to use.Among the things a good training program might emphasize would be the importance of watching for smaller problems that could be the harbinger of bigger ones. But even if they were taught to do so, rail workers might be disinclined to report any trouble they find. Many rail companies reward managers with a cash bonus tied the safety record of the track under the manager's jurisdiction. CSX Transportation, for instance, has awarded a total of $4.5 million in company stock since 1995 under its "Take Stock in Safety" program. Sounds like a great incentive system, but the result, according to United Transportation Union's legislative director, J.M. Brunkenhoefer, is that many middle managers strongly discourage the rail workers they supervise from reporting accidents -- threatening potential whistle blowers with either layoffs or "investigations" into the whistle blower's responsibility.Of course, the railroads sometimes run into pesky FRA rules requiring that certain types of accidents be reported, for instance those in which a rail worker is injured seriously. No problem -- the companies simply send workers to the doctor with a special note, like one from CSX that asks that "whenever possible, use of equally prudent NON-REPORTABLE treatment is encouraged in order to minimize reporting of less significant minor injuries to the Federal Railroad Administration." Among the "reportable" treatments doctors are urged to avoid: "issuing a prescription, injections, closing a wound with sutures, butterfly, staple or steristrip, application of immobilizing cast, sling or splint, É [and] restriction of employee's work activity." To be sure, the letter assures doctors that "appropriate treatment should be based upon your professional medical judgment;" but the message from CSX management to the doctor and, more importantly, to its employees couldn't be more blunt: Don't Rock the Boat.That message was apparently heard loud and clear by the team aboard a CSX train that sideswiped an Amtrak passenger car and caused a derailment near Arlington, Va., this past July. Twice during the train's two-hour journey, crews on passing trains radioed the CSX crew with the warning that one of its flatcars was leaning precariously. Nonetheless, the crew ignored the warning and continued forward because a CSX supervisor had already inspected the car and insisted there was no danger.Highway to HellBut intimidated, badly trained and dog-tired as they may be, rail workers are still the envy of truckers. That's because while truckers can only be legally required to drive a mere 10 hours a day, trucking companies routinely -- and knowingly -- put them on schedules that make a mockery of the law. Consider the timetable of 23-year-old Peter Conway, the driver of a semitrailer loaded with 9,200 gallons of propane headed east on I-287 through New York state in July of 1994. Some time earlier, Conway's truck had been side-lined by a breakdown for 10 hours. Like most truckers, he was being paid by the mile as opposed to the hour; so after his rig was fixed, Conway faced a Hobson's choice: make up the lost time or take a financial hit. He opted to press on. On July 27, Conway's truck drifted off the left shoulder of the highway near White Plains and struck the column of an overpass. The propane leaking from his truck's damaged tank ignited -- propelling the container 300 feet through the air onto a nearby house, which was quickly engulfed in flames. Conway was killed, and 23 others were injured. Although Conway had falsified the log book in which he was legally required to enter his work time, federal investigators were able to determine that he had been driving almost continuously for over 35 hours. Their unsurprising conclusion: Conway had dozed off at the wheel.He's certainly not the first, nor the last, to have done so. A recent government study found that up to 40 percent of truck crashes were probably caused by fatigue. Another study determined that at least 58 percent of truckers had violated hours-of-service rules. In fact, log books are so routinely doctored that truckers have taken to calling them "comic books."But even if he's awake, there's no guarantee the driver of that monster hazmat truck roaring up behind you on the highway is even marginally competent -- or that his rig is remotely safe. Take the case of Willis Curry, a Washington D.C. trucker who, since 1988, has managed to amass 31 citations for such traffic violations as speeding, carrying overweight loads, disobeying red lights and ignoring railroad cross warnings. Back in January, the Department of Transportation's Federal Highway Administration (FHWA) informed Curry's employer of his record and he was promptly fired. But the FHWA waited until April to alert D.C. authorities that his license should be revoked. Two months later Curry, still the proud bearer of a D.C. license and now a driver for a local dump truck company, collided with the car of a young mother and her one-year-old son.Police determined that the brakes on Curry's dump had failed. This should not have come as a surprise. Curry's vehicle gave a whole new meaning to the term "dump" truck. It had been cited for 28 mechanical safety violations in two random inspections last year. And during the first inspection the truck's wiring was so defective that when the brake pedal was pushed the windshield wipers starting going. On both occasions the truck had been ordered off the road for repairs.But the story doesn't end there. After Curry's accident, no action was taken to investigate the dump's owner, or to revoke Curry's license. It wasn't until ten days later, when Curry made a routine request for a duplicate license, that a city clerk happened to notice his record and confiscated his license. And Curry quickly managed to win it back, with the proviso that he only drive between 4 a.m. and noon on weekdays. At 2 p.m. the very next week, Curry was once again behind the wheel when the brakes on his dump failed a second time, causing the 30-ton truck to veer out of control and roll over onto a car driven by a teenage honor student. The boy was killed instantly. It is small consolation that Curry's truck wasn't carrying anything more dangerous than sand. Next time we may not be so lucky.It's hard to say which was the greater menace to society, Curry or his truck. And that's not unusual. On the rare occasions when the Department of Transportation does random roadside inspections, nearly one out of every three rigs they pull over is found to be either unsafe, driven by an unsafe trucker, or both.Danger ZoneDefective equipment is a problem with which rail workers are also all too familiar. A 1995 surprise inspection of a Union Pacific rail yard in Fort Worth, Texas, found that 37 percent of the rail cars there were faulty -- over a third of them with brake problems. And according to Union Pacific itself, 12 percent of the 8,000 plus chemical tank cars it inspected last year turned up "exceptions" like poor positioning of the tops on the cars, or mislabeling of their contents. That wasn't news to rail employees; they say it's not uncommon to work on a train with up to eight "sleeper cars" whose contents, hazardous or otherwise, are unknown to them.This is no minor inconvenience. Different hazardous materials pose different risks and, in the event of an accident, it's essential for emergency responders to know what they're dealing with. For instance, if an unsuspecting fireman unleashed a fire hose on an accident involving metam sodium, rather than dousing any flames, there's a good chance the water would react with the chemical to form a nasty mustard gas-like compound. Similarly, if an emergency crew allowed a small amount of water to drip over a spill of hydrogen peroxide, the heat generated by the subsequent chemical reaction could cause nearby fuel to erupt into a major inferno.Just as frightening as the trains themselves are the tracks on which they travel. About 85 percent of rail transport occurs over "dark" areas where there is no automated signaling. Instead, engineers must rely on dispatchers to talk them through their journey. Yet, as the FRA recently "discovered," dispatchers are often unfamiliar with the tracks through which they are expected to guide a train -- in many cases they haven't even traveled the route once. So perhaps it's not surprising that a June FRA inspection of Union Pacific found that 80 percent of dispatcher orders contained at least one error.And even when there are signals along the track, they are not necessarily configured to maximize safety. In a 1993 overhaul of a stretch of railroad whose users include a Maryland commuter service line, the railroad's owner, CSX, did away with a large number of warning signals along the track. Under the new system, yellow "slow down" signals indicating that a red "stop" signal is soon too follow are now placed before some train stations even if the "stop" sign they are referring to lies way beyond the station. So engineers driving trains that make station stops must somehow remember to pull out of the station at a slow speed; the intermediate signals that would have reminded them about the abrupt stop signal coming up after the station are no longer there. It's hard to conceive of a more accident-prone system. Yet neither CSX nor the FRA so much as paused to consider the safety implications before installing it.Three years after CSX put in the new system, the inevitable occurred. On a snowy night in February of 1996, the engineer of a Maryland commuter train forgot (or didn't notice) the yellow signal before the Kensington, Md., station and pulled out of the station at 60 miles an hour. By the time he saw the stop sign and slammed on the brakes it was too late. Moments later he smashed into the fuel tank of an oncoming Amtrak. Eleven people were killed in the crash and subsequent conflagration. Still, despite instituting some other safety changes, CSX has kept the risky signal system in place.A Free RideBut how does the industry get away with it? Where are all those government regulators conservatives are so fond of disparaging? Turns out they're not nearly as meddlesome as the GOP would have you think. A July study by the General Accounting Office (GAO) -- which monitors federal agencies for Congress -- found that in just one year, the number of safety inspections conducted by the FRA decreased by 23 percent. And between 1992 and 1995 the percentage of railroads inspected for hazardous materials safety by the FRA fell from 34 percent to 21 percent.That's hardly surprising considering how depleted the FRA's forces are. "You've got 380 inspectors for over 1 million cars and 300,000 miles of track," notes the United Transportation Union's Brunkenhoefer. Compare that with the Federal Aviation Administration's 3,028 inspectors -- 132 for hazardous materials alone -- and it's tough not to agree with Brunkenhoefer that "the FRA is stretched too thin." Last year, Representative James Oberstar, the ranking minority member of the House Transportation Committee, introduced a bill that would have doubled the number of inspectors. But the Republican leadership didn't even allow a hearing on it.Oberstar plans to reintroduce his bill this fall. But he's unlikely to get much thanks from the FRA. The agency has long been criticized for failing to stand up to the railroads, but the current climate in Washington has the FRA positively cowed. Discussing the FRA's role with agency officials is an almost eerie experience -- the party line they spout couldn't be more anti-regulatory if it had been drafted by Newt Gingrich: The lack of inspectors? "Not an issue," FRA spokesman Jim Gower hastens to assure; "We've streamlined and are able to do more with less." How? "By making use of the inspectors the railroads employ." The GAO is underwhelmed by the FRA's new approach. In its July report, the GAO expressed concern that the FRA leaves almost all oversight of bridge safety in the hands of railroad companies.But the FRA maintains there's no cause for alarm; it's all part of a new "cooperative" way of doing business that began under the Clinton administration. The idea is to move away from using violations and civil penalties as the primary means of obtaining compliance with the regulations. Instead, the agency relies on "partnerships" with the railroad companies. If you're wondering what that means, take a look at the way the FRA has responded to the results of its -- admittedly laudable -- massive investigation of Union Pacific. You might expect that the agency's discovery that rail employees are being dangerously overworked would prompt it to change the rules governing their schedule. How retro!"New regulations are not the answer," the FRA's Gower patiently explains. Instead, the FRA will simply ask Union Pacific to mend its ways: "After all, it's in their own interest." Union Pacific officials agree -- pointing out that they're hiring an additional 2,600 employees this year. But just how much relief will those new hires be able to provide for the company's exhausted 54,000-strong work force? Officials like Barry Sweedler at the National Transportation Safety Board (NTSB) -- the independent agency responsible for investigating accidents and making recommendations to transportation regulators -- think the FRA is being naive. "What you have today is an industry that's willing to accept a certain number of collisions every year," observes Sweedler.To be sure, over the years the FRA has introduced some important technical requirements that have made rail transport safer. For instance, it recently decreed that all train cars must be linked with special couplers to help prevent them from separating during derailments. For added protection, tanks carrying hazmats are required to be fitted with steel head shields, coated in thermal insulation, and equipped with special devices to keep their bottom outlets from being sheared off in the event of an accident. Unfortunately, the railroads don't have to fully comply with all these new regs until 2006.Even many of the FRA-mandated innovations that are actually in use were required by the FRA only after fatal foot-dragging. That was the case with a backup braking system called a "two-way end-of-train device" that allows an engineer to use a radio signal to apply brakes from the back of his train if his locomotive brakes fail. The FRA did not mandate use of the devices on all trains traveling through mountainous terrain until February of 1996 -- seven years after the NTSB first recommended them, and only after a runaway train had derailed at the bottom of the steep Cajon Pass in California not once, but twice.Similarly, while the FRA has (after over a decade of urging by the NTSB) finally conceded the considerable potential of using satellite-based proximity warning systems to alert engineers, and even apply the brakes, when one train is speeding or about to collide with another, the agency is now merely helping the rail companies run pilot projects -- rather than insisting that they install it on a timetable.And there are still plenty of cheap and life-saving innovations out there that the FRA continues to ignore. Take the laser systems that could be used to alert trains when the track over vulnerable areas like bridges has been misaligned. Such misalignments have been the cause of some of the most horrific accidents in recent memory -- like the 1993 Alabama derailment in which 47 people perished. Yet though cheap models of this system have been put forward, the FRA has no plans to require them. Heck, they still don't even mandate that engine cabins be equipped with radios!The Department of Transportation's record on hazmat trucking is just as deplorable. As you may have gathered from the case of dump truck driver Willis Curry, enforcement of the law by the Department's Federal Highway Administration is laughable. A March study by the Department's Inspector General -- a sort of in-house independent watchdog -- found that in 1995, only 2.5 percent of trucking companies were reviewed by the Federal Highway Administration (FHWA) to see if they complied with safety rules. What's more, about two-thirds of the nation's interstate carriers have never been rated for safety. Most alarming, the Inspector General determined that 22 percent of trucking companies with high rates of on-the-road violations and accidents had never been rated for safety, and 42 percent had not been rated in the past two years.What's going on? Part of the problem is that the 529 federal and state inspectors available to the FHWA are simply incapable of covering all 345,000 interstate trucking companies. But the Inspector General also found that FHWA inspectors were spending far too much time on less urgent activities like educational outreach. Furthermore, while the Department of Transportation does maintain a national database of driver and vehicle violations that it uses to identify high-risk targets for inspection, the criteria for determining who is high-risk puts too much weight on factors like how many passengers a vehicle carries, instead of how many times it has been pulled off the road for being unsafe. To make matters worse, violations of state and local traffic laws are often never entered into the database. Why? Because states are not actually required by the FHWA to transmit the information. Of course, states are required to pass on the results of federally-funded safety compliance reviews and random roadside inspections, but they usually fail to do so quickly. Even when they do, the FHWA takes its own sweet time -- often waiting for over a year before entering the data into the system.When the FHWA bothers to conduct inspections, it tends to favor the velvet-fist-in-the-velvet glove approach. According to the Inspector General, FHWA inspectors consistently underreport violations, and lowball fines. For instance, the penalties for 81 carriers surveyed did not include over half of the major violations found during their inspection. But the FHWA had a ready explanation for this dismal performance: Ôwe're a regulatory agency, not an enforcement agency.'The trucking companies clearly share that impression. To get a sense of how little they fear the FHWA, you need only consider that in the Inspector General's survey, over a third of the companies deemed unsatisfactory by FHWA inspectors had to be inspected and scolded two more times before they cleaned up their act. Moreover -- and this is the clincher -- most of these delinquent companies were allowed to keep their trucks on the road even while they continued to fail one inspection after another. To cite just one example, a Missouri hazardous materials carrier continued to operate without interruption despite the fact that it had failed two general inspections -- and despite the fact that one out of every two of its trucks had to be pulled out of service when stopped for random inspections along the road. It's enough to drive longtime highway safety advocate Gerald Donaldson to distraction. "Words fail me on the extent of the FHWA's ineptness," he sighs.Officials at the National Transportation Safety Board are just as infuriated. Apart from imploring the FHWA to enforce existing regulations, the board continues to urge the agency, and the Department of Transportation in general, to come up with better rules: like getting trucking companies to pay employees by the hour, lowering the maximum number of allowable consecutive driving hours, and introducing simple monitoring devices on trucks to ensure that the law is followed. Yet not only has the FHWA turned a deaf ear to these suggestions, the agency is actually contemplating the trucking industry's request to raise the limit on hours.Among the other possible improvements that could make hazardous materials trucks safer that the Department of Transportation has chosen to ignore: anti-lock brakes, a better internal compartment system to prevent the liquid in tankers from violently sloshing around and causing the truck to roll over; technology to keep the top and bottom ports of tankers from springing a leak when such rollovers do occur; and steel head shields like those used to such great effect on train tank cars. Many of these changes have long been advocated by the NTSB based on its investigation of serious accidents. But, once again, the Department of Transportation simply buries its head in the sand.Regulation RedeemedIf your blood pressure is rising at the thought of all this incompetence, just think of how the NTSB's Barry Sweedler must feel after 27 years of observing it. Sweedler gets a slight catch in his voice as he describes the downside of his job: "When we respond to a tragedy where people have lost their lives, and we invest a lot of time trying to figure out what needs to be done to see that it doesn't happen again, and then we make our recommendation, and nothing happens, and then we see the same accident happen over again -- and over, and over again. That's what frustrates me the most."However frustration is not going to save us from the ever-increasing volume of hazardous materials flowing through our communities. It's time to re-think the conventional wisdom that regulation is a bad word. In recent years, conservatives have largely succeeded in convincing us that regulators are our number one enemy, strangling businesses with yards of expensive and impractical red tape. And the conservative cause has actually been helped by many liberals -- who are quick to defend whatever regulation exists, without bothering to check how well it's working. Meanwhile, the Department of Transportation has all too readily absorbed the mood in Washington, speaking proudly of its new "partnership" with trucking and rail companies, as if having good relations with those industries were the primary goal. It's not. The government's duty is to protect the public -- and it is falling seriously short.Of course, it's not hard to understand why the regulators have lost sight of their mission: Like most of us, they don't enjoy hearing complaints from the people they work with, and no one howls louder than the industries being regulated. But both the government and the public need to start greeting those protests with a hefty grain of salt. From the dangerous overworking of employees, to the appalling condition of their vehicles, to the lack of inspections and penalties for safety violations, to the failure to install new life-saving technologies, the troubles plaguing the transport of hazardous materials by train and truck provide a dramatic illustration of how the real problem can be not too much government regulation, but far too little. If you think this lesson only applies to trucks and trains, just consider what smarter and tougher regulation could have done for the folks aboard ValuJet flight 592. And by the way, how do you feel about that hamburger in your freezer?Research assistance provided by Samuel Seidel.


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