Smart Rail

S m a r t R a i l

Railway Safety Act Review Submission

April 30, 2007

Contents

2 Executive Summary

3 Who Are We? Acknowledgements and Introduction

4 Low-Transparency Culture: Risks to Public Health and Safety

6 South Surrey Case Study with photograph of recent area mudslide

7 Photographs of 1997 Woodway Washington slide from US Geological Survey

10 Lessons from Babes in the Wood

11 Harms that can occur: Terrorist-related risks to rail operations

15 Putting the Pieces Together

16 Specific Recommendations

17 Regional Public Oversight Committee Powers

18 Expanding Ministerial Powers

19 Concluding Remarks

20 Footnotes

APPENDIX 1 Australian Intermodal Rail and Road Transport Study

APPENDIX 2 Transportation Safety Board of Canada Rail Occurrence Reporting criteria

APPENDIX 3 US Geological Survey Coastal Landslide Study 2000 Main points

APPENDIX 4 Print screen version of e-mail from Kris Dhawan from Transport Canada

APPENDIX 5 Terror on the Tracks Pittsburgh Tribune-Review article 2007.01.14

APPENDIX 6 Insurance Industry warns of collapsing railroad liability market 2006.06.20

APPENDIX 7 BNSF Hazmat Transportation Announcement 2007.04.07

APPENDIX 8 Excerpt from BNSF website relating to first of two March 2007 track closures

APPENDIX 9 List of miscellaneous reference websites and articles

Atatchment Enclosed

Executive Summary

It is our contention that the Act has largely failed to deliver on its principle objectives due to:

(1) The absence of any proper public oversight body where members of the general public play a direct and active role in guiding the enforcement of the Railway Safety Act in addition to Transport Canada safety inspection officers; (2) the absence of sufficient transparency in incident reporting by railway companies particularly in terms of the publics ability to gain timely access to this information so that it might play a role in helping to prevent accidents from taking place; (3) the absence of a preventive investigation function within the Transportation Safety Board which would allow that body to conduct spot check investigations based on complaints received by a public oversight body, in order to provide an important check and balance audit function over the enforcement activities of rail safety inspectors and/or railway companies, akin to the function now played by the Auditor General of Canada in other spheres of government activity; (4) the Corporate liability onus premise of a de-regulated rail industrywas framedin a pre-9/11 world, and fails to provide sufficient safeguards when it comes to the transportation of dangerous goods through densely populated urban areas; and (5) the likely inability of railways companies to cover the full damage costs that could arise from tort claims due to the large-scale accidental release of toxic chemicals like chlorine or ammonia due to a train derailment.

In relation to point 1, we believe that the RSA Review Panel should look to Part II of the Canada Labour Code, for guidance. It speaks to regulation of Health and Safety matters in federally regulated industries which includes railways. However, the Canada Labour Codes approach to accident prevention by using workplace health and safety committees has a number of downsides associated with it retribution for employee complaints by employers being the most obvious example. Nonetheless, the committee model still provides a useful template provided the template is modified to accommodate input by members of the general public who are non-employees and largely unrelated to the railroad industry.

We suggest the establishment of Regional Public Oversight Committees to help address the aforementioned limitations, if for no other reason than they offer the same kind ear-to-the-ground presence employees so often bring to workplaces when it comes to preventing accidents waiting to happen. Just as few people know the hazards of a workplace better than an employee, the same principle applies to people who live closest and who are most familiar with the history of a railroad in their area.

In relation to point 2 we believe that the RSA Review Panel should be guided by the spirit of Justice Gomerys second report especially Chapter 10 entitled Transparency and Better Government in which he states that the Access to Information Act should be amended to make government institutions fully accountable to the public and to make the records under the control of those institutions fully accessible to the public. He likewise states that government institutions [should] make reasonable efforts to assist information seekers, and to respond to requests in an open, accurate, complete fashion and without unreasonable delay. The Act should state explicitly that records must be disclosed whenever the public interest in disclosure clearly outweighs the need for secrecy. We are in full accord with this view.

By addressing the aforementioned points, we believe many of the safety problems currently facing the railroad industry can be resolved.

Who are we?

SmartRail is a coalition of citizens and organizations that exists to educate and advocate primarily for safe and effective rail transportation in the Metro Vancouver and Fraser Valley regions of British Columbia as well as the connecting rail corridors into Washington State. In a nutshell, our group is pro-rail, pro-environment, pro-community, and pro-people.

Our coalition first came together in January 2006 under the name of Semiahmoo Peninsula Citizens for Public Safety and is currently seeking status as a non-profit society. Though we have no formal membership as such, some two-hundred people currently support our objectives.

Acknowledgements

We would first like to thank the Minister for Transportation, Infrastructure and Communities for appointing the Railway Safety Act Review Panel and for engaging in a consultative process with the public. In doing so, there can be little doubt the Minister is apt to receive more direct input with few intervening interpretive filters getting in the way. It is our hope this will contribute to a more frank discussion based on the day-to-day experiences of people living in communities side by side with railway operations.

Introduction Framing the Context

With the spate of train derailments in Canada in recent years, an increasing number of people have begun to ask whether corporate interests and priorities havent overtaken the publics interest in safeguarding its health and safety or in protecting the environment. The open question that is being so widely asked is whether with de-regulation of the federally-regulated transportation industry, government itself has not lapsed in its ability to safeguard the public interest on both these counts.

Smart Rail believes that enhancing rail capacities in Canada should be supported not only for obvious economic benefits that it brings, but for the environmental dividends it can pay in the process as well.

From an environmental perspective rail represents a far more efficient form of ground transportation than truck. Not only can one train can carry in the order of 200 truck loads of cargo, according to one well respected Australian mode comparison study completed in 2002, trains emit anywhere from 30% to 69% less CO2 as compared to trucks.1 These are substantive CO2 savings that policy planners can ill-afford to ignore in todays world where slowing global climate warming has become a high priority public policy concern.

Yet despite the emission benefits that come from using trains to move goods of all sorts, also come a number of disadvantages. The most prominent of these are train derailments involving goods that can do harm to the environment, as was the case in August 2005, when a CN train carrying caustic soda (sodium hydroxide) derailed and spilled 51,000 litres of the hazardous material into the Cheakamus River, killing an estimated 500,000 fish.

Yet as important as environmental protection is as a priority and it is a priority there is another which, in a democratic society at least, is equally important, namely the publics ability to have a say in formulating government policies which are designed to not only protect the environment, but the publics health and safety.

Low-Transparency Culture: Risks to Public Health and Safety

We believe that the de-regulation of the transportation of the rail industry in North America has only served to elevate the risk exposure faced by citizens, not diminish it.

Despite the fact that the ostensible raison dtre of the Railway Safety Act was designed to safeguard public health and safety within a corporate onus of risk model, in our analysis of the existing statute, there appear to be a number of disturbing gaps that foster the development of a non-transparent, non-accountable culture, one where members of the general public are often unable to get any clear or complete understanding of what may be taking place within their own backyard.

While it is in a railroads financial and legal interest to run safely and to prevent the spillage of cargoes that could harm human life and/or wildlife and/or the environment, it is also in a railroad companys vested interest to conceal information which might increase its liability exposure.

In our opinion, the RSA essentially provides the type of regulatory environment that makes such concealment more likely. For example, railroad companies are not to our knowledge required by regulation to report all incidents of spillage or leakage or track blockage due to mudslides to Transport Canada, to say nothing of the newsmedia or any public oversight body comprised of people drawn from local communities. Though they are required to report such matters to the Transportation Safety Board (TSB), to our knowledge neither Transport Canada nor its Minister is obliged to act on TSB recommendations.4

For example, when putting together a case study as part of this submission, we made numerous efforts to discover the number of track closure incidents that took place due to mudslides in South Surrey since 1995. We contacted officials within Transport Canada, Amtrak, BNSF, and CN, and were repeatedly told such information was deemed proprietary and its disclosure would give competitors an unfair marketing advantage. While the Transportation Safety Board can and will provide statistics on a particular section of line (at least so we have been told), access to such information is by no means available at ones fingertips through electronic searches on either the TSB or Transport Canadas websites, contrary to what one might expect. Instead, after more than a year, we finally obtained the information we were seeking from an official government source. Trouble is, that source was not in Canada. Some two weeks ago, we obtained the information from the Washington State Department of Transportation which contracts with Amtrak to provide passenger rail services throughout the state.

So the question comes: Why? Why so much trouble to find out about such a small thing? Certainly from a safety perspective it really doesnt make much sense. In fact, the inability to obtain ready access to information of this type actually discourages members of the general public from playing any kind of meaningful pro-active role in monitoring the safety of rail operations in their own community, which seems contrary to the spirit of the objectives set out in the RSAs preamble.

Instead, members of the public generally receive answers that give priority to protecting a railway companys business interest, and not the publics health and safety interest. And to compound the problem, members of the public have few means to audit the veracity of what they are told, if they are told anything at all.

This suggests that the Railway Safety Act needs to give citizens the ability to determine whether their own public health and safety is in anyway jeopardized by railroad company practices. Moreover, given the stakes involved, namely human life, we believe interested members of the public have a right-to-know about the risks they are being asked to share.

In some respects the regulations governing food and drug labelling and a consumers right to know about ingredients to avoid deadly allergic reactions imply the existence of such a right.

Indeed, some would argue that the Canadian Charter of Rights and Freedoms may well confer such a right under article 7 when a reasonable basis of threat can be said to exist. Article 7 states: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of justice.

Yet by being kept in the dark about the actual state of risks, neither citizens nor members of the newsmedia have any practical means of gathering reliable statistical information on this score.

While Transport Canada officials are in a better position to ask railroad operators for this kind of highly detailed information, it is our understanding that railroad operators are sometimes reluctant about revealing these types of statistics, and when they do, often thanks to the issuance of an order by a Railway Safety Inspector, it is generally understood that Transport Canada will refrain from disclosing such information to members of the public so as to protect the railroad companys competitive position in the market place. This raises the question whether Transport Canada officials are giving greater priority to representing the public interest or the interests of railroad operators?

Even if behind-the-scenes Transport Canada is striving to defend the public interest while preserving certain types of sensitive corporate information, the net result is an opacity between the public and its public servants, with virtually no way for the public to verify, let alone know, whether the public interest is being given its proper priority. When members of the general public are asked to simply trust that Transport Canada officials are being as diligent as they need to be in defending the public interest without the presence of an independent audit function, this can contribute to a culture where so much privileged information has been exchanged between railroad operators and government officials, that one observes de-facto regulatory capture where private corporate interests dominate.

It is due to this type of opacity that we are unable to present as many statistical facts as we would like in relation to the following example.

South Surrey Case Study

In 1909, the Great Northern Railway (predecessor to the Texas-based Burlington-Northern / Santa Fe Railroad) opened a sea-level shoreline track from the Canada-US border into White Rock and South Surrey, replacing an older inland route near the Pacific Highway border crossing, whose right-of-way has since been abandoned. Since that time there have been nine train derailments along a six kilometre stretch of track that runs along the base of coastal earthen bluffs that rise to a height of 70 metres. All of the derailments were due to mudslides. Indeed, seven of these nine known derailments were due to trains being hit by slides while the trains were transiting the area, suggesting that train tremor played a role in triggering the slides.

Though the last documented train derailment on this section of track transpired in 1959, since that time the frequency of mudslides has not abated. In 1982 for example, the City of Surreys Engineering Department recorded a total of 68 mudslides events in a period of just two weeks, half of them having been deemed serious. Mudslides large enough to cover the tracks, stop rail operations and require the use of earth-moving machinery were documented by our group in both 2006 and 2007. At least two such slides took place in each of these years. Indeed, the two documented events in 2007 took place within a single month, the month of March.5

Mudslide on BNSF Track on March 11, 2007 in South Surrey, B.C.

Despite repeated assurances from several officials with both BNSF and Transport Canada that this section of track was safe for rail operations thanks to slide detection fencing, we began to doubt what we were being told when we learned that the last two train derailments took place after slide detection fences were installed in 1947, and we began to see photographic evidence pointing to the tracks poor state of repair,

One of our members with experience in industrial safety inspection saw evidence, loose joint bar bolts, joint bars worn by train wheels, rail spikes that can be yanked from their holes with little effort, rusting train bridges with corrosion holes. And our concerns only intensified after one of the areas railway safety inspectors showed scant concern after being presented with these facts.

This only served to harden our resolve to monitor the situation all the more and to conduct greater research into the matter, an initiative whose efforts are now paying off.

For example, in recent days one of our associates was able to identify a research report that was completed in the year 2000 by the U.S. Geological Survey which examined the landslide history along the Coastal Bluffs of Puget Sound in Washington State.6

Whats important to note with this study is that the conditions found along Puget Sound are largely analogous to those that exist not only in South Surrey, but Maple Ridge as well. Not only do both Puget Sound and the B.C. lower mainland have track located at the base of high- angle earthen bluffs, but according to a qualified geo-morphologist familiar with the area, both areas share similar soil geology and precipitation levels.

The US Geological Survey study determined that at least 100 different landslides had covered one or both tracks of the BNSF railroads paralleling shoreline double tracks during the 1995-96 and 1996-97 wet seasons. That represents an average of 50 mudslides per year over a 100 kilometre area of shoreline track. According to the study, the slides resulted in millions of dollars of direct costs accrued from debris removal, repairs, recovery operations, environmental rehabilitation, landslide remediation, and lost or destroyed property. This was in addition to indirect costs incurred by BNSF from delays, lost revenues and re-routing of rail traffic.

Equally important, the study determined that the area was subject to two distinct types of slides. The first and more frequent type of slide is a shallow slide which involves less than 10 cubic yards of material and usually taking place near the foot or toe of the slope. The second less frequent but far larger type of slide is called a deep-seated rotational landslide, which tends to occur at mid-slope and between layers of different soil materials and can range between 15 cubic yards to 100,000 cubic yards of material, with thicknesses between 10 to 50 feet.

A slide of this type occurred in mid-January 1997 in Woodway, Washington. (See below.)

It not only succeeded in derailing five rail cars of a passing BNSF freight train, it pushed the rail cars into Puget Sound itself, and left deposits 10-40 feet thick on the track.

1997 Woodway Washington slide from open source USGS website

The report goes on to state that these slides can occur in less than 30 seconds, and that the smaller shallow slides can often take place anywhere from a few hours to a few days before a large rotational slide.

Among the reports final conclusions is the following sobering statement: The underlying instability of Puget Sound coastal bluffs results from their steep slopes in combination with the stratigraphy, structure, shear strength, and hydraulic properties of the geologic materials that make up the bluffs.

If the U.S. Geological Survey study which only looks at two years of records is any indication, we can extrapolate from the 100 slides observed that at least one if not two large rotational slides can be expected to occur for every 100 slides. In other words 1% to 2% of all slides can be expected to be significantly large. This being the case, it is reasonable to assume that if similar conditions are known to exist in both South Surrey and Maple Ridge (and the frequency of mudslides in these areas would certainly suggest as much).

After learning from the Washington Department of Transportation that there have been 28 track closures in South Surrey since 1999 which incidentally does not reflect the total number of slides since multiple slides can occur for each track closure based on the USGS figures for an area of similar conditions, we extrapolated that South Surrey is apt to experience a large rotational slide once every 19 years. But this figure is based on the Washington State DOT statistic of 3.5 track closures per year. If there is an average of two slides per track closure per year, a large rotational slide involving tens of thousands of cubic yards of material could occur as often as once per decade.

Given the aforementioned, and given the number of derailments that have taken place in South Surrey, and the number of mudslides that continue to take place each year in the lower mainland, one would reasonably expect that research similar to that completed by the U.S. Geological Survey would have been either initiated if not sponsored by Transport Canada in this slide-prone area. To our knowledge, no such research has been done.

Indeed, in an e-mail to one of our members in a discussion of the need to undertake this kind of research in the B.C. lower mainland, Kris Dhawan from Transport Canada wrote:

for the information of those who may not be familiar with this area. This whole area has a slide detector fence from mile 123 to 126.5 with controlling signals atMile 122, 124.4 and 126.5. The area is vigorously patrolled whenever there is heavy rain because BNSF supervisors know the history of the area very well. In the last rain storm in the month of March 2007, most of the slides were small, less than 60 cubic yards in volume and were caused bysurface failure of slopes in extreme wet conditions. I am dealing withBNSF to see if they have any past studies done in the area. From my perspective, thereare enough mitigation measures in place to reduce risk to the rail safety. (See Appendix 4 for original print screen.)

Yet if the USGS data cited above holds true for South Surrey, then there is reasonable grounds to question Mr. Dhawans assertion. But what is particularly worrisome to the nearby residents is that anywhere from 20% to 30% of the carloads moved by BNSF through this area each day carry both hazardous and dangerous goods. Indeed, thanks to statistics made available to the public in a proposal submitted to the Vancouver Port Authority by Canexus chemical in North Vancouver, the risk of a dangerous goods rail car being struck by a mudslide is apt to increase.

Canexus ships out more than 1,700 rail chlorine tanker cars each year, each containing some 90 tons of the gas. The vast majority of this chlorine is shipped to the United States over BNSF rails through South Surrey and White Rock (more than 90% of all the plants production), and the company hopes to expand their production capacity by 25% which by the companys own estimates would add another 490 chlorine tankers onto the tracks each year. This means that an average of five tanker cars carrying chlorine will pass through South Surreys slide-prone bluffs each day.

Chlorine tanker in South Surrey 2006.02.05 a day after sea wave action from a major windstorm eroded shoreline to within 5 metres of the BNSF track. It remained unaddressed for several months.

Naturally, mixing mudslides capable of derailing rail cars with the transportation of dangerous and hazardous goods along this section of track is the proverbial accident waiting to happen.

Since the last known train derailment took place in 1959, one which likely involved a deep rotational slide event, if our conservative of one large rotational slide per 19 years is correct, South Surrey is overdue for this kind of slide by 2.5 decades. Indeed, given the derailment history along this section of track during the half century from 1909 to 1959, when 9 trains derailed, this translates into nearly two derailments per decade, implying that significant slide events might be more frequent than what has been stated above. And if global warming results in heavier than normal rainfalls, we can expect the slide probability risk to increase even more.

For the record, in recent weeks we have been trying to interest Transport Canadas Ground Hazards Unit in conducting research into the bluffs instability, and we have asked whether vibrational energy from trains plays any role in slide activity. While we did observe an initial level of interest on the part of Transport Canada to discuss this question, from more recent e-mail discussions, we are given to believe that South Surrey is not seen as a rail safety priority given other priorities in Canada.

We wonder whether the reason for this approach is in anyway coloured by the fact that the rail line is owned by a US-based railway company, and that Transport Canada officials would have a difficult time selling the idea to their own senior management that scarce government resources should be expended on a line that does not service a Canadian railroad company?

Lessons from Babes in the Wood

Given Smart Rails effort to address this situation since last year, our experience has been one that has fortunately (or unfortunately) brought to light some serious deficiencies in the way things are currently handled.

As mentioned earlier, from our groups South Surrey observations, backed up by photographic evidence provided to us by several private sources, we question whether BNSF or Transport Canada has been as diligent in their monitoring of the state of repair of this section of track as they would like the members of the general public to believe.

Naturally, for either party to admit to a member of the general public, particularly in writing, that they have been lax in any of their practices would open them up to serious scrutiny, and in the case of Transport Canada officials, serious internal disciplinary reviews. So the old bureaucratic CYA (cover your ass) management style is likely still very much alive and well in the realm of railway safety. This very lack of day-to-day accountability that needs to be addressed if only to remain in keeping with Justice Gomerys second report which addresses the lack of day-to-day accountability in other spheres of government activity. (We address this point in greater detail later in this submission.)

Yet without free and open access to information, it is not only difficult to know whether BNSF or Transport Canada have been a diligent as they should be, it is nearly impossible for members of the general public to mount a credible evidentiary case in order to file a complaint with the RSA Tribunal under the Railway Safety Act, let alone expect a positive result. In short, what we are faced with is a Catch-22 conundrum that effectively renders the RSA impotent from the point of view of a member of the general public wishing to advance a credible complaint.

Still one of the unique privileges of being a grassroots citizen-based entity is that people within the rail community will tell you things off-the-record they might not otherwise discuss with their own official counterparts. Again, we turn our attention to Surrey, but this time North Surrey and the Thornton rail yards.

Early last year we learned from a person working within one of the rail companies that some unspecified time before, there had been a leak discovered in a rail tanker car carrying chlorine as a train was being marshalled into a long-haul train. The leak was serious enough to require the visitation of the yard by specialists from a local chemical company donning Hazmat suits to fix the problem. Yet despite the danger involved to the surrounding population, this matter likely never became public knowledge. Apparently, no member of the general public, nor the newsmedia were ever advised about the incident. As of the date of the writing of this document, we were still trying to confirm the veracity of this incident with the TSB.

Still the question must be asked: What would have happened if the train marshalling crew that had been walking through the yard succumbed to the chlorine escaping from that tanker car and failed to report it to the appropriate Hazmat personnel? The incident could have taken on a far graver outcome, with many more deaths as the train in question made its way to its destination.

Harms that can occur: Terrorist-related risks to rail operations

While promoting the corporate bottom line confers undoubted benefits to Canadas overall wealth, be it in the form of jobs or in terms of a positive trade balance, most people will agree that these benefits should not come at the expense of the health and safety of its citizens.

At times such hard-won lessons have been cruel ones. The Union Carbide tragedy of Bhopal, India of December 1984 is a case in point. On that occasion, a deadly gas cocktail of Methyl Isocyanate and two other toxic gases were accidentally released and according to the company, caused the death of an estimated 3,800 people while another 2,800 were injured to the point of causing partial disabilities.

Of course, many believe that the companys harm figures were grossly understated. For example, while the BBC reported a similar death count, it also stated that 15,000 people fell seriously ill from exposure. Greenpeace claims that as many as 20,000 people may have died due to exposure. Local Indian medical authorities estimated that in the order of 500,000 people were likely exposed to the toxic chemical cloud. While the local community blamed Union Carbides shoddy maintenance practices, the company continues to assert that the incident was the result of deliberate sabotage of its plant by a disgruntled employee.

Yet no matter the ultimate cause, Time Magazine called the incident A Global Worry on the cover of its December 17th, 1984 edition. Little did they know just how prescient that headline would be. With the rise of radical Islamic terrorism, every chemical plant in the world, and every mode of transportation used to transport those chemicals would eventually become subjects of great concern.

When the Railway Safety Act was first brought into force in 1989, and then amended in 1999, it did not anticipate the tragic events of September 11, 2001, nor the attacks in Madrid, Spain on March 11, 2004, nor similar attacks in London, England on July 7, 2005. In Madrid, series of 10 bombs detonated within two minutes of each other through four commuter trains, killing 191 people and injuring 2,050. In London, another multiple attack took place when three bombs exploded within a minute of each, while another tore through a double-decker bus an hour later. A total 52 commuters died, along with four terrorists, and 700 people were injured.

What both events served to underscore is that trains are now viewed by terrorists as potential targets.

With the deployment of Canadas military to Afghanistan, many credible commentators believe we have increased the likelihood that our country will one day become the target for a similar terrorist attack. What shape this attack will finally take, no one knows, but there is little question we have placed ourselves in the cross-hairs of terrorist intent. So how should the Railway Safety Act respond?

In recent years, a number of US jurisdictions have taken the terrorist threat to heart, among them the District of Columbia. In 2005, that jurisdiction decided to enact the Terrorism Prevention in Hazardous Materials Transportation Act 2 after studying the implications of a terrorist assault on any of the daily trains carrying dangerous goods like chlorine that transit through the District.

This Act effectively gave local authorities the right to: (1) ban the rail transport of dangerous goods through its jurisdiction; (2) force railroads to use other safer routings, and (3) to power to fine railroad companies that violated the ordinance.

Lets consider for a moment what they were so worried about. Below we provide an excerpt from DC Council member Kathy Pattersons noteworthy statement in her review of the matter:

We introduce this bill to eliminate a grave and immediate danger faced by residents of the District of Columbia the threat that terrorists might attack a large-volume shipment of ultra-hazardous materials transported through the District, causing a massive explosion and/or the release of toxic chemicals. Studies have shown that such an attack could create a deadly toxic cloud extending 14 miles, killing or injuring up to 100,000 people within 30 minutes and resulting in billions of dollars of economic damage. As noted by the Districts congressional representative, the Honorable Eleanor Holmes Norton, this is the single greatest unaddressed security threat to the City.

notwithstanding that this massive danger has been obvious for at least three years, we remain vulnerable to a terror attack on the high-volume shipments of ultra-hazardous materials No enforceable or regulatory action has been taken by the [US] Federal Government to eliminate this threat. Trains and trucks filled with hazardous materials continue to be allowed to pass within blocks of the Capitol building on a regular basis. The presence of such dangerous shipments provides terrorists with the opportunity to cause hundreds of thousands of casualties with nothing more than a bazooka, grenade-launcher or readily available conventional explosives. There is no reason to permit such dangerous and vulnerable shipments to pass a short distance away from Americans center of government (and neighbourhoods surrounding it) when they can be transported just as efficiently and far more safely through rail or truck routes that avoid major terrorism targets such as the District.

the D.C. Council should enact this Bill as a necessary and appropriate measure to protect the lives and well being of District residents.

A terrorist attack on a large quantity hazardous materials shipment within the Capitol Exclusion Zone would be expected to cause tens of thousands of deaths and catastrophic economic impacts of $5 billion or more.

Recently the Federal Bureau of Investigation (FBI) reported that terrorists are specifically interested in targeting hazardous material containers in attacks on rail cars on U.S. soil. (October 24, 2002 FBI Alert.)

If terrorists succeeded in such an attack the result would be catastrophic. A chlorine cloud emanating from a ruptured railcar can move 2 miles in 10 minutes (US Coast Guard Report cited in January 23, 2004 Testimony of Fred Millar before the Council of the District of Columbia) and produce a cloud of deadly gas stretching over 14 miles. (The Chlorine Institute, Pamphlet 74.)

A recent simulation found that if an attack occurred during a celebration or political event in a setting similar to the National Mall, people could die at a rate of over 100 per second and up to 100,000 people would die within the first 30 minutes. [Based on presentation made by Dr. Jay Boris, US Naval Research Laboratory to the DC Council, October 6, 2003.] A July 2004 study by the Homeland Security Council estimated that even under less crowded conditions, an attack in an urban area would result in 17,500 deaths, 10,000 severe injuries and 100,000 hospitalizations. [Based on Planning Scenario 8 developed by the Homeland Security Council in July 2004, for use by National, Federal, State and Local Homeland Security Preparedness Initiatives.]

Existing [US] transportation safety regulations designed to protect against spills or other accidents were not designed to address these risks, and will not prevent such outcomes. Indeed, while the studies described above assume that hazardous chemicals would only be released from a single rail car, terrorists might well attack and cause releases from multiple rail car tanks simultaneously, just as they used multiple planes to target the World Trade Center on September 11, 2001. Doing so would cause an even greater number of deaths and serious injuries.

The Districts emergency service providers are not equipped to respond to such events. 3

The aforementioned sobering facts speak to the seriousness of the task before this Railway Safety Act panel. Though the Canadian and U.S. contexts may differ in some regards, most of the core issues surrounding the impacts of an unanticipated toxic gas release upon a civilian population remain essentially the same. As such, the choices your panel makes in this regard could either prevent or contribute to the loss of thousands of lives, not to mention the millions, and possibly even billions of dollars of damage this can cause.

Of course this raises another important question: Are railroad companies sufficiently insured to cover the compensation that would have to be paid out for tort claims in light of a dangerous goods release in a densely populated area?

Presenting at U.S. House panel hearings, Aon Risk Services Inc., a unit of Aon Corp., said that the railroad liability market is in danger of collapsing should a catastrophic loss involving terrorism or the release of dangerous chemicals occur. At the hearings, which were intended to investigate surface transportation of hazardous materials, Aon saidinsurers reserved $600 million for rail-related catastrophic liability losses over the past 10 years but have only collected $300 million in premiums for the exposure. Loss trends like these have driven carriers to exit the North American rail business, the news service reported. James Beardsley, managing director of Aons national rail transportation practice, told the subcommittee, One more catastrophic loss could collapse the available structure of risk transfer completely. As a result of the perceived crisis, commercial freight carriers have been turning to federal legislation to limit their liability exposure, reduce their common carrier obligations or establish some form of federal fund to defray costs associated with their liability.7

Edward R. Hamberger, President and CEO of the Association of American Railroads (AAR), appearing before the Senate Commerce Committee, Hearing on Railroad Security, on October 20, 2005 said: insurance has become more expensive and difficult for railroads to obtain, and it is not possible to fully insure against a truly catastrophic incident. Even though TIH accounts for a fraction of rail carloads, it contributes approximately 50% to the overall cost of railroad insurance rates. Insurance rates for AAR members have doubled this year alone. For these reasons, the transport of certain hazardous materials has the potential to be a bet the business activity for railroads. This leads to our recommendation that Congress should consider limiting railroads liability 8

In light of the aforementioned information, what this implies is that the corporate liability onus which is one of the centerpiece premises of the Railway Safety Act may be fast approaching practical obsolescence. Like a run away train, all it may only take is one or two significant catastrophic dangerous goods accidents in North America to derail the entire corporate liability onus upon which the de-regulated industry premise is based.

Once members of the general public who have become the collateral damage in such accidents find themselves in a situation akin to what transpired in Bhopal, India in 1984, or Hurricane Katarina, in New Orleans. And the political accountability cost will be great. It is clear that Canadians can ill-afford to live under a statute where the parties who caused harm are unable to compensate those who were harmed.

We believe a number of simple legislative and regulatory measures can help reduce the probabilities that such things will occur by shifting the paradigm from after-the-fact liability to one of prevention.

One such measure would be the creation of an obligation under the Railway Safety Act, as well as the Dangerous Goods Act, requiring railway operators to provide much higher levels of security such as mandatory electronic surveillance and fences that obscure any clear view of rail yard contents around freight marshalling yards, particularly where dangerous goods are being produced and/or temporarily held before movement.

In light of the District of Columbia example, yet in keeping with our Canadian context, we would like to propose a measure we feel can help address this situation, namely granting local municipal authorities a provision within the RSA to have a say in the transport of dangerous goods through their communities.

Putting the Pieces Together

Anyone familiar with the reality of big picture political processes understands that we live in a society of competing interests. The challenge that faces all policy makers when formulating public policy is to strike a fair and practical balance between these differing interests.

No less is true when it comes to the Railway Safety Act. Though its principle objective is the promotion and provision for the safety of the public and railway personnel, as well as the protection of property and the environment in the operation of railways, it is also abundantly clear that the Act envisioned a paralleling set of mutually supportive objectives.

These are the collaboration and participation of interested parties in improving railway safety, the recognition of a railway companys responsibility to ensure the safety of their operations; and the facilitation of a modern, flexible and efficient regulatory scheme that will ensure the continuing enhancement of railway safety.

Contrary to the first of these stated sub-objectives, we believe members of the general public have been largely excluded from any meaningful day-to-day form of collaboration and participation of interested parties. We suspect that this oversight has inadvertently encouraged the development of a lop-sided culture where the conduct of regulators has become increasingly influenced by the business priorities of railroad operators. Indeed, this type of cultural drift is entirely in keeping with the Theory of Regulatory Capture which describes how regulatory bodies become increasingly captured by the industries they were suppose to regulate.

It is also our contention that the extent to which this has occurred, the Act is also unable to deliver on its promise in relation to the other two sub-objectives as well, and as such, this has undermined the Acts ability to deliver on its principal objective of promoting and protecting the health and safety of the public, and the environment.

We believe this failure is largely due to: (1) the absence of any proper public oversight body, in which members of the general public can play a direct and active role in guiding the enforcement of the Railway Safety Act (RSA); (2) the absence of sufficient transparency in incident reporting by railway companies and the publics ability to gain timely access to this information so that it might take appropriate steps to help prevent accidents from taking place; and (3) the absence of a preventive investigation function within the Transportation Safety Board which would allow that body to conduct spot check investigations based on complaints received by a public oversight body, in order to provide an important check and balance audit function over the enforcement activities of rail safety inspectors and/or railway companies, akin to the function now played by the Auditor General of Canada in other spheres of government activity.

We believe the foregoing deficiencies undermine the RSAs final sub-objective of facilitating a modern, flexible and efficient regulatory scheme that can ensure the continuing enhancement of railway safety.

In keeping with the spirit of this final sub-objective, we also believe that Canadian municipalities should have a right within the RSA to limit under duly enacted By-laws, the transportation of dangerous goods through their jurisdictions when they deem it necessary in order to protect public health and/or safety. Such a provision would be in keeping with a trend now taking place in various US jurisdictions primarily as a means of diminishing the publics risk exposure to terrorist attack.

We wish to also respectfully suggest to the RSA Review Panel to look at Part II of the Canada Labour Code which deals with Health and Safety. The Workplace Health and Safety Committee model represents a useful template upon which Regional Public Oversight Committees can be based, and its emphasis on preventive measures and on-the-ground input by those who live and work closest to problem areas, likely represents a key ingredient in finding many more workable longer term solutions.

Specific Recommendations

In our considered opinion, and based our own observations, we believe that the current RSA reflects an absence of important checks and balances between private corporate interest and public health and safety interests, and we have reason to suspect that railroad companies occasionally engage in practices that place the publics health and safety at great risk. To address this problem, we would like to propose the following for your consideration:

1. One of the RSAs stated objectives, namely 3 (b) is to encourage the collaboration and participation of interested parties in improving railway safety. But collaboration and participation of interested parties implies that some regularized formal consultative mechanism should exist between members of the general public and railway companies. To our knowledge no such mechanism exists. As such, one logical place to begin is to establish a series of publicly appointed regional bodies with representation drawn from local communities who would be responsible for performing a public oversight function of railway company practices. This is in addition to the input technical experts representing the Government of Canada would provide. The intent here is to give those who have the greatest stake in ensuring lives are protected have a direct voice at the safety determination table, namely members of the general public. This is because it is they whose lives are often placed at risk when a dangerous goods release due to a derailment occurs. A secondary intent is to provide a mechanism where privileged trade information made available by railroad companies would not become so widely disclosed as to comprise their competitiveness in relation to other railroad operators or other modes of transportation. Yet these public oversight bodies would by virtue of having access to such privileged information be in a position to formulate appropriate recommendations to the federal Minister where defence of the publics health and safety would be given the highest priority. It is our view that such oversight bodies should meet no less than twice a year in order to: (a) audit the safety performance of railroads in their region of jurisdiction; and (b) draft an annual safety audit report on the railroad companies operating in their region. Based on the conclusions derived from this audit, these committees would have the authority to recommend to the federal Minister appropriate actions to be taken under the authority of the RSA or any other suitable statute to remediate the concerns identified by this public advisory body.

2. In order for this provision to work, we would like to recommend that the Government amend the Railway Safety Act to include a provision that would create standing regional advisory committees appointed by the federal Minister, based on nomination lists provided by local interests, such as municipal governments and community associations. (This could occur under article 10, Sub-paragraph 5 Minister may seek advice.)

3. Another necessary provision required to make these safety advisory councils work is the need to include a mandatory requirement on the part of railroad operators to disclose all safety incidents to Transport Canada officials within 24 hours of them taking place, who would in turn be authorized to share this information with the members of the relevant regional safety advisory council.

4. Members of the oversight committee should also have the right to accompany railway safety inspectors when entering railway property for the purposes of conducting a safety inspection as requested by members of the regional oversight committee. (This would pertain to Section 27 (2) under Part IV of the RSA regarding Administration and Enforcement.

5. It is also a recommendation of our group that the Railway Safety Act should be amended to provide Canadian municipalities with the option of limiting the transport of dangerous goods, like chlorine and anhydrous ammonia, to certain hours of the day, and/or to exclude the transport of such goods through designated areas of their jurisdiction when the municipal authority deems that a circumstance which endangers the publics health and safety to exist. This provision would be akin to what now exists in the District of Columbia and several other jurisdictions in the United States. These powers could be specified under Section 33 Emergency Directives under Part IV regarding Administration and Enforcement.

Regional Public Oversight Committee Powers

Smart Rail believes that Regional Public Oversight Committees (RPOCs) should have the following powers:

(a) The authority to order a rail safety inspector to conduct a safety assessment of given sections of track which may include walking inspections;

(b) The authority to ask that said inspection take place within 48 hours of such a written order being received from the RPOC;

(c) The power to accompany said inspector on such an inspection;

(d) The authority to include another accredited rail safety inspector from another regional jurisdiction to be a part of the inspection;

(e) The authority to include up to two additional independent technical specialists (such as an accredited geologist and materials engineer) to accompany the inspector;

(f) The authority to review the inspectors report upon its completion;

(g) The authority to append comment to the inspectors report;

(h) The authority to recommend to the Minister disclosure of facts to members of the general public that the committee believes constitute a unreasonable risk to the publics health and/or safety;

(i) The authority to recommend to the Minister that independent research should be undertaken to establish the risks associated with operating a given section of track, including geological assessments of slopes adjacent to trackage, and/or community-level consultations with affected parties;

(j) The authority to recommend to the Minister that certain sections of track should be closed and steps taken to relocate them in order to diminish the risk these sections pose to human health and/or safety;

(k) The authority to file complaints with the Transportation Appeal Tribunal of Canada when deemed necessary by a RPOC, and/or to request the Transportation Safety Board to conduct an independent safety audit with a view to prevention.

Expanding Ministerial Powers

Smart Rail believes that the Minister should have additional powers at the Crowns disposal to resolve safety issues identified by a Regional Public Oversight Committee. Among these would include:

(a) The power to order the relocation of a section of track to a safer location, if it has been determined by independent scientific research that a tracks existing location represents an unwarranted risk to the health and/or safety of a nearby population;

(b) The authority to grant up to 80% of the cost a railroad operator would incur by having to relocate a section of track by order of the Minister;

(c) In consultation with the Minister of Revenue and Parliament, the Minister would have the authority to assess and impose an annual tariff on railroad operators to recover up to 50% of the construction costs associated with said relocation, amortized over a period not to exceed 20 years;

(d) The obligation to recommend to the Governor-in-Council the appropriation of fines assessed under the Railway Safety Act toward the costs of providing remedial actions to resolve safety issues identified by the RPOC.

Concluding Remarks

Today, particularly in a democratic society with a well-educated and engaged citizenry, who are able to bring thoughtful concerns to the policy-making table, democratically elected officials can ill-afford to minimize the value of the citizen perspective just because they are not technocrats which is to say, professional experts in a given field. Though they may not hold professional standing in a field like rail transportation does not mean they are ill-informed, or nave.

People who live in track-side communities often have a much better human appreciation for the impacts of legislative policies than do bureaucrats or railway company executives, because to us, these policies are not just abstract constructs jotted on a piece of paper. They are train whistles that disrupt our sleep in the middle of the night. They are dangerous goods like chlorine rumbling through our neighbourhoods carrying contents that could kill thousands within minutes if accidentally released. They are train companies who are able to hide poor track maintenance practices from the eyes of an interested public who have a right-to-know whether their communities are endangered because of their practices.

We would encourage the Panel to bring forward bold recommendations which will not only help to prevent future accidents, but possibly save the lives of thousands of people in the process.

Footnotes:

1 Australian Intermodal Rail and Road Transport Study 2002 Comparison of Greenhouse Gas Emissions. (See Appendix 1 for more information.) http://www.networkaccess.qr.com.au/Images/Emissions_tcm10-2847.pdf

2 The Terrorism Prevention in Hazardous Materials Transportation Act of 2005 passed by the District of Columbia Council on February 1, 2005. See the following links for more information: http://www.dccouncil.washington.dc.us/images/00001/20050207144000.pdf http://www.dccouncil.washington.dc.us/images/00001/20060113150233.pdf

3 Statement by District of Columbia Council Member Kathy Patterson upon the introduction of The Terrorism Prevention in Hazardous Materials Transportation Act of 2005. See the following link for more information: http://occ.dc.gov/occ/lib/occ/information/hazmat/STB_hazmat_patterson_into.pdf

4 Transportation Safety Board of Canada Rail Occurrence Reporting criteria for both accidents and incidents see Appendix 2 or go to: http://www.tsb.gc.ca/en/occurrence_reporting/occ_reporting_rail.asp

5 Mudslide cancels trains for hours Peace Arch News, March 13, 2007 and Mudslide blocks CPR mainline, the Province, 2007.03.26 page 4 Excerpt: Amtrak passenger service will resume today between Seattle and Vancouver. Crews worked all day yesterday to clear away a mudslide near Crescent Beach in Surrey. Amtrak spokesman Cliff Cole said two trains will depart Seattle at 7 a.m. The trains return from Vancouver in the evening.

6 US Geological Survey - Recent and Historic Landslide Activity on Coastal Bluffs of Puget Sound between Shilshole Bay and Everett, Washington, 2000 by Rex L. Baum, Edwin L. Harp, and William A. Hultman. See Appendix 2 for more information. http://pubs.usgs.gov/mf/2000/mf-2346/mf-2346so.pdf

7 SNL Insurance Daily, Aon warns of collapsing railroad liability market, by Bree Fortney, June 20, 2006

See: APPENDIX 6 Insurance Industry warns of collapsing railroad liability market

8 Edward R. Hamberger, President and CEO of the Association of American Railroads (AAR), appearing before the Senate Commerce Committee, Hearing on Railroad Security, on October 20, 2005.

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APPENDIX 1

Australian Intermodal Rail and Road Transport Study

2002 Comparison of Greenhouse Gas Emissions

Main Findings:

Transport contributed to 16.1% of Australias greenhouse gas emissions in 1999.

Rail contributed to 2.1% of this total, truck transport contributed to 33.6% of this 16.1%. This figure includes all kinds of light commercial vehicles, buses and trucks.

Truck fleet fuel efficiencies rose by 2% between 1991 and 1999.

During the same period, rail emissions fell by 8.5% to 1.6 Mt in 1999. This figure excluded emissions generated by electricity generation which is main source of passenger rail transport.

Emissions = CO2 94.2% with small amounts of N20 (nitrous oxide) and CH4 (methane)

CO2 emissions from intermodal transport by train was between 31% and 54% of those from 6-axle articulated vehicles and between 41% and 70% of those from 9-axle double truck trailer vehicles. (This means train transport is between 30% to nearly 70% more CO2 efficient as compared to long-distance trucks.)

Australian Bureau of Transport and Regional Economics reported a total of 127.4 billion net tonne-kilometres were carried by rail in 1999. This equals an average emission rate of 12.3 grams per net tonne-kilometre (NTK) or about 6.1 grams/gross tonne-km (GTK). Average emission rate of CO2 from intermodal rail is about 10.1 g/GTK.

Diesel fuels energy density = 38.6 Megajoules (MJ) per litre of fuel

Study used actual fuel consumption rates along commons corridors. Rail fuel consumption ranged between .003 and .005 litres per gross tonne-kilometre (GTK). Truck fuel consumption ranges between .0092 and .0224 litres per net tonne km.

It is estimated that only 12% of goods now carried by trucks could be shifted over to roads.

The study refuted the claim that if one third of the contestable freight was shifted from road to rail, the CO2 benefit would be less than 1%.

The Australian Rail Track Corporations estimate that modal diversion to rail would result in a 5% reduction in GHGs, but this is largely because intermodal only represents a relatively small fraction of the total goods carried by rail.

Study used the same methodology used by the Geneva-based International Road Union (IRU) and the logistics providers association Bndesverband Guterkratwerkehr Logistik und Entsorgung e.V. (BGL). Link: http://www.networkaccess.qr.com.au/Images/Emissions_tcm10-2847.pdf

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APPENDIX 2

Transportation Safety Board of Canada Rail Occurrence Reporting criteria

Requirement to Report

Extracts from TSB Regulations Sections 4(1) and 4(5): When a reportable railway accident or incident takes place, the owner, the railway company, the track operator, and any crew member aboard the rolling stock involved in the accident or incident shall report to the Board as soon as possible and by the quickest means available. Where any person mentioned above makes a report, no other person referred to is required to make such a report.

What is a reportable accident

TSB Regulations Section 2(1): A "reportable railway accident" is an accident resulting directly from the operation of rolling stock, where:

(a) a person sustains a serious injury or is killed as a result of: (i) being on board or getting on or off the rolling stock, or (ii) coming into contact with any part of the rolling stock or its contents,

or

(b) the rolling stock: (i) is involved in a grade-crossing collision, (ii) is involved in a collision or derailment and is carrying passengers, (iii) is involved in a collision or derailment and is carrying dangerous goods, or is known to have last contained dangerous goods the residue of which has not been purged from the rolling stock, (iv) sustains damage that affects its safe operation, or (v) causes or sustains a fire or explosion, or causes damage to the railway, that poses a threat to the safety of any person, property or the environment.

What is a reportable incident

TSB Regulations Section 2(1): A "reportable railway incident" means an incident resulting directly from the operation of rolling stock, where

(a) a risk of collision occurs,

(b) an unprotected main track switch is left in an abnormal position,

(c) a railway signal displays a less restrictive indication that that required for the intended movement of rolling stock,

(d) an unprotected overlap of operating authorities occurs,

(e) a movement of rolling stock exceeds the limits of its authority,

(f) there is runaway rolling stock,

(g) any crew member whose duties are directly related to the safe operation of the rolling stock is unable to perform the crew member's duties as a result of a physical incapacitation that poses a threat to any person, property or the environment, or

(h) any dangerous goods are released on board or from the rolling stock.

What information is required

TSB Regulations Sections4(2): When a reportable railway accident or incident takes place, the report to the Board shall contain as much of the following information as is available:

(a) the train number and direction;

(b) the names of the railway company and the track operator;

(c) the names of the crew members;

(d) the date and time of the accident or incident;

(e) the location of the accident or incident by reference to a mileage or subdivision location and, where applicable, the track designation in yard;

(f) the number of crew members, passengers and other persons that were killed or sustained a serious injury;

(g) a description of the accident or incident and the extent of any damage to the rolling stock, the railway, a commodity pipeline, the environment and other property;

(h) a summary description of any dangerous goods contained in or released from the rolling stock;

(i) in the case of a reportable accident, the anticipated time of arrival of wreck-clearing equipment; and

(j) the name, location and title of the person making the report.

In addition to the reporting requirements set out above, the person making the report shall, in a form approved by the Board, submit to the Board within 30days after the accident or incident all the above information, unless otherwise exempted by the Board.

How to make a report

Railway occurrences shall be reported as soon as possible to the TSB Rail/Pipeline Occurrence Hot Line at 819-997-7887 (collect calls accepted). This information shall be faxed to the Rail/Pipeline Branch as soon as possible after the initial call at 819-953-7876

Information found at: http://www.tsb.gc.ca/en/occurrence_reporting/occ_reporting_rail.asp

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APPENDIX 3

US Geological Survey Coastal Landslide Study 2000 Main points

Actual title: Recent and Historic Landslide Activity on Coastal Bluffs of Puget Sound between Shilshole Bay and Everett, Washington 2000 by Rex L. Baum, Edwin L. Harp, and William A. Hultman.

Landslides have been a significant problem in the Seattle area for many years, and numerous landslides occurred there as a result of major storms in 1996 and 1997. During this period, four major episodes of landsliding along the bluffs between Seattle and Everett impacted residential and commercial properties and the Burlington Northern Santa Fe (BNSF) Railway, which runs along the shore of Puget Sound at the base of these bluffs. The landslides filled ditches along the tracks, covered railroad tracks, uprooted trees, blocked culverts, broke flexible surface drainage pipes (tightlines) caused bluff retreat (land damage) and structural damage to several homes on the bluffs, and derailed part of a freight train. In all, at least 100 different landslides covered one or both tracks of the BNSF railroad during the 1995/96 and 1996-97 wet seasons. Millions of dollars in direct costs accrued from debris removal, repairs, recovery operations, environmental rehabilitation, landslide remediation, and lost or destroyed property. Additionally, significant indirect costs accrued to the BNSF Railway from delays, lost revenues, and rerouting of rail traffic. Fortunately, no deaths or injuries resulted from any of these landslides.

Three of the found landsliding episodes occurred during or immediately after major winter storms. from December 31, 1996 to January 2, 1997 wind and warm rain melted 1-2 feet of snow that had accumulated during the previous week; the resulting melt-water triggered numerous shallow landslides and debris flows throughout the study area Two weeks later during the third episode, a deep-seated rotational landslide occurred at Woodway, Washington The Woodway landslide derailed five cars of a freight train operated by the BNSF Railway

Sound Transit (The Central Puget Sound Regional Transit Authority) has proposed to add the operation of commuter trains in the BNSF rail corridor to the existing traffic, so exposure of rail traffic to landslides is likely to increase in the future even if the average frequency of landslides remains constant. Assessing the potential for future landslide impact to the railway is important for determining the safety of such operations.

Landslides ranged in size from a few cubic yards to about 100,000 cubic yards, and they covered the tracks in about 100 places. Observed or estimated thickness of the shallow earth slides in colluvium on steep slopes ranges from 2 to 10 feet and probably averages about 5 feet. Large translational slides ranged in thickness from 10 to 30 feet or more, and the large rotational slide at Woodway was 50 feet thick (perpendicular to the bluff face) at the source and left deposits 10-40 feet thick.

The few available observations of the speed or duration of these landslides coupled with local experience indicate that most landslides were rapid and lasted less than a minute. Some landslides consisted of several pulses that occurred several hours apart, but each pulse lasted less than a minute. Circumstances surrounding the main pulse of the Woodway landslide are consistent with duration of less than 20-30 seconds. The main pulse of the Woodway landslide struck the train as it was passing and pushed several cars into Puget Sound. Three engines and one other car had pushed through thin debris on the track before the slide struck. A secondary pulse that occurred several hours later lasted about 15-20 seconds according to eyewitnesses

a few large, persistent, slow-moving slides also exist in the area (for example, large slow translational landslides occur on a mid-bluff bench north of Carkeek Park). Shallow earth slides and debris flows that covered the tracks originated at the toes of some of these slow-moving slides.

The underlying instability of Puget Sound coastal bluffs results from their steep slopes in combination with the stratigraphy, structure, shear strength, and hydraulic properties of the geologic materials that make up the bluffs.

Source: http://pubs.usgs.gov/mf/2000/mf-2346/mf-2346so.pdf

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APPENDIX 4

Print screen version of e-mail from Kris Dhawan from Transport Canada

April 23, 2007 10:36AM

APPENDIX 5

Terror on the Tracks

By Carl Prine

TRIBUNE-REVIEW

Sunday, January 14, 2007

Let's say the Pittsburgh Tribune-Review reporter really was a terrorist.

What if those were bombs he was placing on the chemical placard of a rail car inside the Thatcher Chemical Co. plant in suburban Las Vegas, and not his business cards?

Instead of a camera recording lax security over some of the deadliest chemicals ever produced, he held a detonator? And the string of chlorine gas cars trundling down Union Pacific Railroad tracks in the heart of Vegas was his prey?

If he was a terrorist, and his goal was to release a potentially catastrophic cloud of deadly gases, explosives and caustic acids -- in unguarded cars, left abandoned -- then a U.S. Department of Homeland Security's planning scenario might apply: 17,500 people dead, another 10,000 suffering injuries and 100,000 more flooding trauma wards, convinced they've been poisoned. The environmental damage would take weeks to clean up, forcing the evacuation of as many as 70,000 residents from a city built on sin, military might and heavy industry.

Less detailed and unlikely "Worst Case Scenario" plans filed with the U.S. Environmental Protection Agency suggest the gases that could be released by the reporter perched atop millions of pounds of zinc chloride, phosphoric and sulfuric acids, and chlorine gas could drift 18 miles and threaten 1.1 million people with death, displacement or injury.

Click here to see a U.S. map and the major railroad routes, in Adobe Acrobat .PDF format.

But, luckily, he was only a reporter.

Five years after terrorists murdered 2,996 people in the Sept. 11 attacks, the Trib embarked on a probe to see how well railroads and their customers secure lethal hazardous materials -- termed "hazmat" by first responders. The road map: Reports compiled since 2003 by the Federal Railroad Administration detailing defects in the way railroads and chemical plants conducted counter-terrorism security planning and worker training.

Armed with that data, the Trib penetrated 48 plants and the freight lines that service them to reach potentially catastrophic chemicals in populated parts of Seattle, Tacoma, Atlanta, Pittsburgh, Las Vegas, San Francisco's Bay Area and the New Jersey suburbs, as well as two port facilities in Oregon and Washington.

"What you uncovered is a criminal tragedy, and it's a criminal tragedy that's just waiting to happen. It's also criminal what we haven't done about this," said U.S. Sen. Joseph Biden, D-Delaware, who has sponsored legislation designed to revamp rail hazmat security nationwide and pledges to hold hearings on the issue.

Biden has taken at least 7,000 round trips by rail from his home in Wilmington to Washington, D.C., since entering the Senate in 1972. He routinely talks to railworkers, and when he pulls into a depot, he scans for hazmat tankers, guards and gates.

He loves railroads so much that he wants to protect them by slashing tax cuts and take the extra cash to fund every recommendation of the 9/11 Commission that investigated the 2001 attacks. He demands more federal cops in the rail yards, more cameras and gates, less dangerous chemicals on the tracks and rerouting of particularly lethal shipments around big cities.

"All you have to do is look," Biden said. "I can walk into a freight yard right now, and I can put plastique explosive on a railcar and detonate it. This is a distant concern to many people in Washington, D.C., but I see and I hear about it every day and we have to do something about it."

The Association of American Railroads, with a membership hauling almost 90 percent of the nation's hazmat tank cars, said freight security has improved since 2001 but conceded more has to be done to protect 240,000 miles of mostly unguarded line.

"You've got to remember the open architecture of railroads," said Nancy Wilson, AAR vice president and director of security. "We're not static facilities. We cannot protect every railcar, every rail yard or every customer's facility all the time."

In the years since the Sept. 11 attacks, intelligence tips have warned about U.S. chemical plant targets and terrorists have hit freight trains abroad. Still, Homeland Security and the AAR insist there's no indication that terrorists are plotting hazmat rail attacks in the U.S. now.

Good thing, because the Trib found:

* Little visible differences in security between the largest and smallest train lines. The Trib easily reached hazmat shipments or locomotives controlled by 12 railroads, ranging from giant Union Pacific to the tiny, city-owned Tacoma Municipal Beltline. Workers never challenged the reporter as he climbed trains, photographed derailing levers or peeked into signaling boxes controlling rail traffic.

* No police presence. Despite long trips down tracks nationwide, no rail cops detained the reporter. At a Clifton, N.J., station where explosive railcars hug teeming commuter lines, a Transit Police cruiser idled unconcerned while the reporter spent an hour around hazmat cars. According to the railroads, fewer than 2,300 cops patrol the tracks, about one for every 100 miles.

* Shoddy security even at 11 refineries, railroads and chemical plants bound by "stringent" voluntary guidelines created by the AAR and other industries. The Trib penetrated security at four railways adhering to AAR's guidelines. Seven plants that had voluntarily upgraded security to meet standards of their trade groups also had tracks open to terrorists.

No executive at a large railroad would talk to the Trib about the newspaper's findings. Local and state security officials in California, Washington and Georgia also were silent when the Trib tried to discuss hazmat security.

The Nevada Homeland Security Commission, however, is investigating shortfalls uncovered by the Trib's Vegas vacation.

"Closing gates, making sure workers and guards and police are aware of our chemicals, that's important," said Commission Supervisor Larry Casey. "Unfortunately, the farther we get from 9/11, the more people forget about staying vigilant.

"Then there's the funding issue. The federal pot gets smaller and smaller. The farther we get from the major event in our lives, the threat goes up while the money to stop it goes down."

Chlorine gas unguarded in the suburbs of Las Vegas. The Trib reached 11 tankers filled with deadly gases and acids inside plants or along tracks in one of America's largest cities.

In 2001, five of the 19 al-Qaida terrorists visited Las Vegas before hijacking airliners for suicide missions to Manhattan and Washington, D.C.

Las Vegas annually hosts more than 37 million visitors. The city received about $28 million in federal counter-terrorism funding last year, but officials have been told that's being scaled back, leaving almost nothing for safeguarding the tracks latticing the city.

According to Homeland Security's Inspector General, 90 percent of taxpayer anti-terrorism funding has gone to protecting aviation. In 2006, $4.6 billion flowed to securing U.S. airports, leaving $32 million for safeguarding surface transportation, including railroads.

The Burning of Atlanta

Following FRA's deficiency reports to 12 facilities near Atlanta, the Trib found numerous security snafus in one of Dixie's largest cities.

Along CSX lines in Dekalb County, a Trib reporter climbed unguarded stores of deadly insecticides, flammable petroleum distillates and acetone, a chemical that can trigger a vapor cloud explosion if leaked.

Since 2003, FRA has noted 53 defects with CSX counter-terrorism planning and training in five states, including Georgia.

A year ago, FRA reported that Bulkmatic's plant in the Atlanta suburbs failed to properly address potential intruders. A fence "locked" with almost 2 feet of slack meant a Trib reporter could stroll by employees there who made no effort to challenge him. Federal inspectors had previously written up Bulkmatic chemical operations there and in Buffalo and Chicago for security problems.

After visiting Alchem's Atlanta's caustic soda operation in 2005, an inspector wrote, "Is there a fence? Is facility manned 24 hours a day?"

Woodbridge Corp.'s deadly toluene diisocyanate railcars in the bustling Atlanta suburbs stand open to sabotage. The Trib easily accessed highly toxic or explosive rail shipments in a dozen rail and chemical facilities in one of Dixie's largest cities.

In September, the Trib found the answer was, "No."

In Marietta, Ga., the Trib reached hundreds of thousands of pounds of acrylic acid, a highly explosive chemical with choking fumes, stowed on the tracks near several factories. Woodbridge Corp.'s toluene diisocyanate railcars in Lithonia also were unguarded. If ruptured, the chemical can cause severe burns or death as gases seek out moist human flesh.

Bombs also easily could have been placed on propane, caustic soda and fuming sulfuric acid tankers and vats in nearby Carroll, Fulton and Gwinnett counties, causing massive explosions and corrosive gas releases.

Atlanta and Georgia homeland security officials declined to comment on the Trib's findings. Neither would Alchem, Bulkmatic, Woodbridge and CSX.

"To me, this is a no-brainer for terrorists in Atlanta or anywhere else," said Sal DePasquale, a Georgia State University expert on counter-terrorism and retired security director for chemical titan Georgia Pacific. "It's toxic material. It's unprotected. If you're a railroad or a chemical plant and you won't have someone ready to kill the adversary ready to attack your plant, then what can you do?

"What's happened here is simple. Railroads were constructed and industry grew up along them. Then people came to live near the industry. Railroads by their nature are open to access and now we have to figure out how to protect them. Do we reach the point where we say, 'In the interest of public health and safety, we're going to close down your ability to ship toxic material?' What happens then? It's a tough question to answer."

West Coast swing

One of the deadliest cargos known to man with a Trib business card tucked into placard No. 1017 -- chlorine gas. A weapon of mass destruction in World War I, this chlorine in Tacoma is so corrosive it will eat through human teeth.

For almost three weeks, a Trib reporter followed the rails from Seattle to San Francisco to Las Vegas. Of 23 railroads, chemical facilities and seaports hit with FRA security defects, the Trib penetrated 18 of them in Washington, Oregon, California and Nevada.

Two years after FRA found security plan defects at Cascade Columbia Distribution's Seattle warehouse, a Trib reporter found himself underneath stacks of explosive hydrogen peroxide, toxic ferrous chloride, blinding fluorosilicic acid and deadly muriatic acid.

With cameras, roving patrols and high fences, Pioneer America's Tacoma bleach plant seeks to bar terrorists from chlorine railcars. But a Trib reporter walked past rail switching levers and safety chocks to 90 tons of deadly gas abandoned by the Tacoma Municipal Beltline Railroad outside the gates. In 2004, FRA reported the railway failed to create a security plan and the Trib certainly didn't find one that kept chlorine gas safe from intruders two years later.

According to EPA "Worst Case Scenario" filings, a catastrophic chlorine tank rupture there could push gas to as many as 14 miles, threatening 900,000 people.

"We can't switch out the chlorine on our own," said Pioneer's plant manager, George Karscig. "The railroad brings in the cars. There are some days when they come and they don't make the switch and that's what you found when you came here."

Karscig immediately ensured that his guards policed railroad tracks Pioneer doesn't own.

Union Pacific's bustling yard bisects Martinez, Calif., and the sprawling Shell refinery that brews large quantities of Liquid Petroleum Gas there. The Trib found Shell's safeguarding of 10 million pounds of highly explosive isopentane to be rigorous. That's important, because vapors released by a terrorists could trigger a flash explosion across much of the seaside town, according to EPA files.

Click here to see a video of an LPG truck explosion, although a railcar explosion would be much larger. LPG is so flammable, a detonation of one railcar can cause second-degree burns more than a mile away.

But Shell officials concede there is little they can do to babysit dozens of tankers holding what first responders call "LPG" outside refinery property. During the Trib's odyssey across a pipeline and through Shell's rail channel, the Trib encountered three workers on Union Pacific tracks. They didn't stop the reporter or ask what he was doing.

Detonating one LPG railcar can cause second-degree burns more than a mile away. A terrorist who explodes 18 LPG tank cars would unleash as much energy as the atomic bomb that was dropped on Hiroshima in 1945, according to federal reports.

In Benicia, San Jose, Salinas, Richmond and Fairfield, Calif., the Trib found that a terrorist easily could have placed bombs on more than 100 other tank cars containing asphyxiating anhydrous ammonia, flammable petroleum distillates, highly explosive propane, and LPG, often on Union Pacific tracks.

It wasn't the first encounter by either the Trib or FRA with lax Union Pacific security. In 2005, an inspector noted that anyone could enter the Brenntag Great Lakes warehouse in Milwaukee's suburbs because a Union Pacific employee "does not lock gate after switching facility." FRA also detailed problems with the railroad's security plans, training and intrusion protections in Oakland, New Orleans and Seattle.

After FRA visited the Seattle yard in 2005, an inspector reported "concern with the lack of railroad crews requesting his ID or credentials during inspections." A Trib visit a year later found three bums sleeping under a bridge and a flurry of locomotives moving freight, but no sign of rail police.

Open gates, torn fence lines and unguarded rail lines allowed unfettered access to 18 facilities and railroads along the Pacific coast, including this plant along a Union Pacific spur in the suburbs of San Francisco.

In Nevada, a Trib reporter would simply wait for a Pioneer factory to disgorge its deadly chlorine and caustic soda tankers to an unguarded rail spur owned by Union Pacific. Although the Trib decorated Union Pacific hazmat tankers with more than 100 business cards from Vegas to Seattle, the company won't discuss it.

"Our only statement is that we believe what you did is dangerous and we strongly encourage people to stay away from railroad tracks," said railroad spokesman Jim Barnes.

A Jersey state mind

In the crowded New Jersey suburbs rimming New York City, the Trib found tougher chemical plant security than any other place. But track protection was no better than other states, and of 48 facilities and railroads found to have security defects by FRA, the Trib entered 12 of them in July.

At the Black Prince Distillery in Clifton, N.J., explosive tankers share space with passenger trains on New Jersey Transit's bustling Mainline from Manhattan. A Trib reporter eased past video cameras and a patrolling police cruiser three times during trips in and out of the plant and along the tracks, even while commuter cars zipped by.

That concerned Richard Caas, director of the New Jersey Office of Homeland Security and Preparedness.

"The storage of hazardous material on commuter rail lines is something to be considered and that scenario goes to my biggest fear -- mass transit," he said. "In our state, you've got a high population density. You have rail out the kazoo that moves at a lightning pace. There are things we do, like ramping up vigilance, conducting searches, doing shows of force. But this is expensive and must be sustained for it to be effective."

A Trib reporter followed bums under a bridge and through the woods to a large depot run by Conrail to service refineries stretching from Sewaren to Perth Amboy along "The Chemical Coast" line. On tracks stacked almost a mile deep with highly explosive chemicals, the reporter climbed tankers and waved at nearby trucks.

Riding the rails atop a highly explosive shipment through the "Chemical Corridor" of New Jersey.

The Trib penetrated security at a dozen Jersey facilities, often finding catastrophic amounts of gases or explosives unguarded in one of America's most populated areas.

Adding another two chemical plants in Parlin and Carteret, a pair of propane warehouses, an Edison distiller and the railroads connecting Morristown, Whippany, Dayton, Tennent, Ringoes and Newark, a coordinated attack on Garden State hazmat reached by the Trib would have released enough deadly ethylene oxide, toxic methylamine, explosive LPG, lethal hydrogen chloride and flammable denatured alcohol to threaten 527,000 people, according to EPA documents filed by the companies themselves.

Once informed of the Trib's breaches and delivered photos of unguarded chemicals, New Jersey's Homeland Security experts sped to sensitive sites to probe what went wrong. That wasn't unexpected. Like Michigan, Trenton has fully merged state police and emergency management agencies so that a threat potentially impacting the environment or public health draws rapid law enforcement scrutiny, too.

The state is creating an intelligence hub linked to other high-target regional cities and states to better track vulnerabilities. Although New Jersey law already requires stiffer security at chemical plants than what's found in other states, Caas said voluntary efforts at high-risk factories often work, too.

Trib stakeouts at Dupont, Air Products, Shell and ExxonMobil plants found outstanding perimeter and rail yard protection -- despite earlier FRA defects -- forcing the reporter to seek softer targets along the rails, something terrorists might do, too.

"New Jersey has done a lot," said Caas. "But we're still extremely vulnerable in some areas. You exposed some of that -- there's no denying that -- but I think overall there's a spirit of cooperation here that you won't find in other states."

Why?

"They still feel 9/11," said Caas. "They feel it every day. They haven't forgotten."

http://www.pittsburghlive.com/x/pittsburghtrib/news/cityregion/s_487117.html

APPENDIX 6 Insurance Industry warns of collapsing railroad liability market

Aon warns of collapsing railroad liability market

Bree Fortney

SNL Insurance Daily, June 20, 2006

Presenting at U.S. House panel hearings, Aon Risk Services Inc., a unit of Aon Corp., said that the railroad liability market is in danger of collapsing should a catastrophic loss involving terrorism or the release of dangerous chemicals occur.

At the hearings, which were intended to investigate surface transportation of hazardous materials, Aon said that over the past five years global capacity for North American rail liability risks decreased from $1.5 billion to $1 billion, while liability insurance premiums recently jumped. According to the Association of American Railroads, highly hazardous commodities encompass 0.3% of total carloads but account for half of the railroads total insurance costs.

According to the publication, Aon said insurers reserved $600 million for rail-related catastrophic liability losses over the past 10 years but have only collected $300 million in premiums for the exposure. Loss trends like these have driven carriers to exit the North American rail business, the news service reported.

We are always in search of new, additional capacity to replace underwriters who exit the rail liability market, James Beardsley, managing director of Aons national rail transportation practice, told the subcommittee,. At this point in time, there are not many options open to replace waning capacity. One more catastrophic loss could collapse the available structure of risk transfer completely.

As a result of the perceived crisis, commercial freight carriers have been turning to federal legislation to limit their liability exposure, reduce their common carrier obligations or establish some form of federal fund to defray costs associated with their liability.

Yet the debate continues as some, such as Rep. Earl Pomeroy, DN.D., feel the burden should rest on the rail industry. I think these are costs that ought be borne by the (ra