Rules expected next week on D.C. toxic rail shipment ban

A city ban on certain shipments of toxic materials such as chlorine through the U.S. capital is expected go into effect March 14 unless rail operator CSX succeeds in having the measure blocked before then, Washington officials said Wednesday.

The District of Columbia Council passed the ban Feb. 1, and Mayor Anthony Williams signed it two weeks later.

On Wednesday, city Transportation Department spokesman Bill Rice said the agency plans to publish rules on March 4 for implementation of the ordinance, a move that would clear the way for the measure to take effect 10 days later.

"At that point, a shipper will be required to get a permit to ship any of the hazardous materials as described in the bill within 2.2 miles of the Capitol, and presumably … the applicant will show that there's no practical alternative," Rice said in a telephone interview.

Fearful of what they saw as an opening for a terrorist attack using toxic-by-inhalation gases in transit as improvised chemical weapons, council sponsors designed the bill effectively to block shipments of the materials in certain quantities by requiring shippers to obtain permits that would be accorded only in rare circumstances. The regulation applies to gases in the U.S. Transportation Department's top two categories of toxicity, when transported in quantities of at least 500 kilograms.

CSX has petitioned the Transportation Department's Surface Transportation Board to block the ban and has filed a lawsuit against the city in U.S. District Court for the District of Columbia. The company is supported in the former effort by the Transportation Department itself and in the latter by Norfolk Southern Railway Co. (NSR), the Association of American Railroads and U.S. House of Representatives Government Reform Committee Chairman Tom Davis, R-Va.

With implementation of the measure not expected until March 14, a CSX success on either front could block the ban before it begins. Ban supporters played down that possibility yesterday, stressing that the bill was designed to withstand such challenges.

"We had always anticipated that there would be challenges to the legislation," Williams spokeswoman Sharon Gang said in an interview.

Greenpeace Toxics Campaign Legislative Director Rick Hind added in an interview that "the statute was drafted to not be relevant to [opponents'] claims."

District Court filings this week by Norfolk Southern and the railroad association supported CSX's view that the Washington measure is pre-empted by several federal laws, including the U.S. Constitution, which protects interstate commerce.

Norfolk Southern said it would not accept on its lines any large-scale shipments diverted by CSX, also known as CSXT, to avoid Washington in compliance with the city ordinance.

"CSXT's motion demonstrates the severe harm that the imposition of the D.C. ordinance will cause its business. … CSXT would be forced to implement extensive and inefficient reroutings that would drive up its costs, impair service to its customers and congest its rail lines and yards," Norfolk Southern wrote. "The district has suggested that CSXT could mitigate this harm simply by rerouting its cars onto other carriers' lines. … This supposed solution is a mirage."

"NSR, whose lines would be the only feasible alternative routing for most if not all of this traffic, would not consent to any proposal to divert large volumes of CSXT hazardous materials traffic to NSR's lines, because such action would serve only to transfer the risk inherent in the movement of those shipments from the district to the communities through which NSR operates," Norfolk Southern wrote.

Both Norfolk Southern and the railroad association disputed the idea - on which the district's argument is partially based - that the capital city is a special case for the purposes of such shipments because of its attractiveness to terrorists.

"The danger to D.C. residents posed by the potential release of a hazardous material is fundamentally no different from the danger of such a release to residents of Richmond, Philadelphia and Cleveland - three of the cities through which hazardous materials would likely have to be diverted," Norfolk Southern wrote.

"There is nothing 'essentially local' about the D.C. government's concern about hazardous material moving through the District of Columbia," added the Association of American Railroads, referring to the city's bid to avoid pre-emption by the Federal Railroad Safety Act on the grounds that the situation is "essentially local."

"Every densely populated locality in the country could invoke the same rationales that the District of Columbia has invoked here," wrote the association in its friend-of-the-court brief. "The mere fact that D.C. is the seat of the national government is insufficient to support the assertion that this ordinance addresses 'essentially local' concerns; significant terrorist threats have been made against numerous other major metropolitan areas as well."

Supported already by the U.S. Transportation Department, CSX could receive another powerful federal backer today. The Justice Department said in a Feb. 18 District Court notice that because CSX's lawsuit "implicates issues in which the United States may be interested, the United States is considering whether to exercise its right to file a statement of interest." The department said any such statement would be filed by Thursday.