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"We said we were going to adopt Class 1 railroads' -- the big railroads' -- own operating rules in the state of California, as our own," says Public Utilities Commission attorney Patrick Berdge. "We wanted to know when and if the railroad weakened their safety rules on train configuration so that we could prevent that kind of accident."
In its legal filings, Union Pacific says the rules are illegal. They violate the commerce clause of the U.S. Constitution; they violate the turn-of-the-century Locomotive Boiler Inspection Act drafted to govern how U.S. agents inspected steam engines; and they run against the spirit of the Federal Railroad Safety Act of 1970, says Maureen Mahoney, who represents the railroads in this case.
"California is supposed to enforce the federal scheme, not invent its own rules," Mahoney says. "The railroads obviously have a very important interest in safety. When a train derails, there's hardly ever damage to the public. It's very rare. But the railroad can't run trains when there's a derailment. They have enormous incentives to prevent derailments. They have done a terrific job preventing derailments."
That's nonsense, says Lawrence Mann, a Washington attorney retained by the Brotherhood of Locomotive Engineers and the United Transportation Union. Accidents per rail employee have remained virtually unchanged from 1970, despite dramatic technological advancement during the ensuing years, Mann says. He blames this partly on the posture railroads have taken in courthouses around the country for much of this century. The battle lines are often the same: federal and state regulators, along with the railroad's own employees, fight for tighter safety controls; the railroads fight against them.
In 1970, the railroads assailed the Federal Railroad Safety Act as hampering transport, Mann says.
And now, in San Francisco, the railroad is brandishing that same law -- now claiming that it prohibits states from regulating trains. It doesn't, Mann says.
"I drafted that law," he says, adding that it specifically describes situations where states may regulate trains. The Cantara Loop is one such situation, he says.
A decision is expected soon from the 9th U.S. Circuit Court of Appeals on whether California can enforce its safety rules. If the railroads win in San Francisco, Union Pacific would be free to forget the lessons of the 1991 spill. It could dumb down its internal safety rules in a way that could allow another carload of chemicals to jump the track, without violating state or federal law. Perhaps Jim Pedri's new guardrail will catch such a wayward car. Perhaps it won't.
Meanwhile, every day, carloads of sulfuric acid, sodium hydroxide, anhydrous ammonia, hydrogen peroxide, chlorine, and almost every other dangerous chemical used in the state of California roll 30 feet above the upper Sacramento, their wheels pressing at the sides of the horseshoe-curved rails of the Cantara Loop.
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