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D.C. train ban remains on hold while other cities efforts advance

(The following article by Joe Fiorill of Global Security Newswire was posted on the GovExec.com website on August 11.)

WASHINGTON -- Efforts to ban certain rail shipments of toxic chemicals are moving forward in some U.S. cities despite a lengthy court battle that has put on hold a ban the District of Columbia enacted in February.

Amid heightened concerns of terrorist threats to rail systems following the recent London attacks, momentum appears to be building in Baltimore and Chicago for legislation to address the possibility of attacks on rail tankers that ban advocates call rolling chemical weapons.

"I'm actually moving forward even harder now," Baltimore City Council member Kenneth Harris said yesterday.

After introducing a proposal in March, Harris has secured a hearing date on the matter, he said: Baltimore's council will consider the ban proposal Sept. 14.

Like the Washington law, Harris' bill and a measure introduced in June in Chicago would create security zones through which shipments of certain chemicals may pass only in rare circumstances.

Several of the chemicals in question, including chlorine, have been historically used as chemical weapons. Former top presidential antiterrorism adviser Richard Falkenrath has said the danger posed by rail tanker is "rivaled only by" nuclear and biological threats and 9/11-style strikes on large buildings. A Naval Research Laboratory study indicates thousands of people could be killed in minutes by the toxins that a tanker attack could release.

The fate of Washington's measure rests with the U.S. District Court for the District of Columbia. That court first rebuffed a bid by rail operator CSX for an injunction to stop enforcement of the ban, then saw its decision reversed by an appeals court and now finds itself with the case again.

Council member Kathy Patterson, who sponsored the bill, said Wednesday that a trial is likely and could take place before the end of the year. In the meantime, the city and CSX have agreed that Washington will not enforce the ban and the company will not transport the chemicals over at least one of its two lines through the city.

Last month, the U.S. Homeland Security Department announced a contract with two security companies for deployment of a new system of cameras, WMD sensors and radio-frequency train identification in Washington - prompting some observers to conclude that the federal government, which supports CSX in its case against the city, expects the shipments to resume.

"That announcement was a clear indication from Homeland Security that they plan to let CSX resume routing through the middle of the capital as soon as the court case is over," Greenpeace Toxics Campaign Legislative Director Rick Hind said yesterday.

Baltimore's Harris said he does not see Washington's legal battle with the rail company as cause for caution on his bill, for which he claims support from 13 of the council's 15 members.

"It hasn't persuaded me to slow down at all," he said.

In the historical railway hub of Chicago, Alderman Ed Smith introduced a bill in June that would affect not one railroad company, as in Washington, but six companies. Smith's office said today that a City Council committee is now considering the bill.

"My concern is that they are accessible to terrorists and that an attack on one of them could be devastating in the same way as New York on Sept. 11," Smith said when he introduced the bill in June.

CSX, which operates in both Baltimore and Chicago, said it is opposed on principle to bans in those cities but has not yet turned its attention to the possibilities for legal action. The company says it is required by law to transport useful but hazardous chemicals and that city bans, which it views as unconstitutional, would force it to undertake rerouting measures of potentially devastating cost.

"We view [the potential rail bans] as all being centered around the same fundamental issue," CSX spokesman Gary Sease said yesterday.

Baltimore and Chicago, he said, "are obviously busy rail points for us, but, at this point, we have not studied the rerouting options that would be required to the degree that we have done so for the District [of Columbia]."

"We have our hands full, of course, with the District and the continuing court case there," Sease said.

Other cities could benefit from Washington's experience as they move forward with rail ban efforts, according to Greenpeace's Hind.

"You learn a lot from the D.C. case," Hind said.

In particular, Hind cited testimony in the case that he said demonstrates that a very small percentage of rail traffic - potentially as little as 5 percent - would be affected by a ban on shipments of the most toxic chemicals. Such numbers, he said, weaken railroads' case that the city measures could bring them serious financial harm.

"Politicians who don't want to be insensitive to the needs of business in their community can say, 'Wait a minute. This isn't even 10 percent. This isn't even 5 percent of your business,'" Hind said.

Given such numbers, he said, objections by rail companies are less a reflection of legitimate financial concerns than of a "leave-us-alone, don't-regulate-us attitude."

Patterson said Washington's special status as a federal district - considered, depending on the context, both a city and state - could give it an advantage in seeking a ban that will not be available to other cities.

"I think they will have a more difficult time than the District of Columbia has in enacting and enforcing a law," Patterson said today.

"We are acting in our capacity as a state, which gives us greater leverage in a judicial setting than a city would have," she said. "Secondly, there isn't any community with the exception of Manhattan with a higher risk rating than Washington, D.C."

"That said," Patterson added, "every community should be doing a risk assessment and acting accordingly."

While awaiting the fate of the ban law, Washington council members have begun pursuing other avenues to address the threat.

Patterson and colleague Phil Mendelson introduced a bill in April that would make CSX liable for costs incurred in the District owing to railroad chemical releases or threats against shipments. The bill would also require new inspection and certification processes for hazardous shipments about to pass through the city.

Meanwhile, activists are increasingly focused on action at the federal level. Lawmakers such as Senator Joseph Biden (D-Del.) and Representative Edward Markey (D-Mass.) have introduced bills to reroute shipments or require new notification procedures, so far without concrete successes.

In a Washington Post commentary this month, Biden expressed grave concern about U.S. rail security.

"The current state of our rail security system is worse than an accident waiting to happen," he wrote. "It is an open invitation to terrorists."

Friday, August 12, 2005

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