Rail Safety Legislation

Rail safety legislation is advancing in the Senate on a bipartisan basis. The Railway Safety Act of 2023 is sponsored primarily by two Ohio Senators–Sherrod Brown (D-OH) and J.D. Vance (R-OH).

The core provisions of the legislation include:

• A requirement that hotbox detectors be deployed an average of every 15 miles instead of the current 25 mile standard.

• Authority for the US Department of Transportation (DOT) to require trains to stop if safety technology identifies something wrong.

• An expansion of the types of chemicals requiring safety measures beyond those that are merely flammable liquids, such as vinyl chloride and flammable gas.

• A strengthening of hazmat planning, including notification to states about the types and frequency of trains carrying hazmat transported through state boundaries; hazmat/high-hazard response plans that are approved by DOT; and available hazmat spill response teams.

• A prohibition on railroad company time requirements on inspections, a requirement that inspections be performed by trained mechanics, and that all railcars be thoroughly inspected at least every five years.

• An increase in the maximum statutory civil penalty for railroads from $100,000 to $10 million.

• A statutory requirement that all trains be operated with two crewmembers.

While railroads have been supportive of some legislative reforms, their biggest concerns appear to center on staffing requirements for trains and regular inspections.

The House will likely consider rail legislation only if, and after, the Senate passes this legislation.

(posted: 5-11-23)

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US Lawsuit Against Norfolk Southern

The Justice Department announced (March 31) that the agency is suing Norfolk Southern Railroad as a result of its February accident in Ohio.

The lawsuit is seeking penalties and injunctive relief for the unlawful discharge of pollutants, oil, and hazardous substances under the Clean Water Act, and a declaratory judgment on liability for past and future costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

The timeline for resolution of this lawsuit could be a long one, and also may not be the only lawsuit waged against the company.

(posted: 3-31-23)

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Freight Rail Safety Measures

The freight rail industry, via the Association of American Railroads, announced (March 8) agreed to a set of actions that it says member companies will take voluntarily to reduce the risk of rail accidents. This announcement followed a list of actions proposed by the Secretary of Transportation to strengthen rail safety.

Among these:

• All companies will join the Federal Railroad Administration (FRA) voluntary Confidential Close Call Reporting System (C3RS). The Secretary of Transportation had called on railroads to take this action. Railroads did, however, outline measures that they believe will make the system “better and more effective,” including measures to address aspects to the system “that have historically led to railroads declining to participate in favor of their own internal programs.”

• Companies will begin “immediately” to install additional hot bearing detectors (HBD) across “key” routes, with a “goal” of achieving average spacing of 15 miles if such a route does not already have acoustic bearing detection or similar technology. An estimated 1,000 new HBDs would be installed under this policy.

• Companies commit to stop trains and inspect bearings whenever the temperature reading from an HBD exceeds 170° above ambient temperature.

• The industry is “expanding its efforts” to get its “AskRail” app to first responders. The industry claims that the app provides information on “the contents of every car in a train and the safe handling of those contents in the event of an accident.”

Since the freight rail accident in East Palestine, Ohio, the FRA initiated a national inspection initiative focused on high-hazard flammable train (HHFT) routes, and the industry has now committed to participate in C3RS and also deploy additional HBD detectors. These actions represent the three most significant measures to be implemented since the East Palestine accident.

The Administration has also expressed its support for bipartisan rail safety legislation introduced in the Senate by Sherrod Brown (D-OH) and J.D. Vance (R-OH). Among other things, the legislation increases rail fines for safety violations, strengthens rules for trains carrying hazardous materials, accelerates the timeline to phase in more robust tank cars, and ensures a two-person crew minimum on trains.

The timing for consideration of this legislation is not currently known, including if the legislation has sufficient support for passage.

(posted: 3-14-23)

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DOT Call for Policy Action on Freight Rail Safety

The Secretary of Transportation, Pete Buttigieg, called on the freight rail industry (February 21) to support both legislative and regulatory measures, as well as voluntary actions, intended to strengthen rail safety in the aftermath of the freight rail accident in East Palestine, Ohio.

Among other things, the Secretary called on freight rail companies to:

• Join the Federal Railroad Administration’s (FRA) Confidential Close Call Reporting Program, which provides railroads and employees the ability to report events and conditions without fear of reprisal. The only current major participant is Amtrak.

• Deploy new inspection technology, such as the Automated Track Inspection System, without seeking to drop human inspection along with such technology.

• Require tank car owners to expedite the phase-in of safer tank cars in advance of the current 2029 mandate deadline.

• Provide advance notification to state emergency response teams when transporting hazardous gas tank cars through their states.

• Support legislative changes to maximum fines on safety violations, which currently totals just $225,455, relatively small given multi-billion annual operating income of major freight rail companies.

• Support legislative changes that will expand and strengthen rules governing high-hazardous shipments, including high-hazard flammable trains (HHFT).

• Support new braking regulations that also increase the use of electronically controlled pneumatic brakes (ECP).

• Support increased funding to expand hazardous materials training for first responders.

In addition, the Secretary says he will (among other things) work within current authorities to:

• Advance a pending Train Crew Staffing Rule that will require a minimum of two crewmembers for most railroad operations.

• Initiate “focused” safety inspection programs on routes over which high-hazard flammable trains (HHFTs) and other trains carrying large volumes of hazardous material travel, and also on current legacy tank cars and the shippers and railroads who have not yet upgraded to safer tank cars.

• Pursue updated rulemaking, to the extent possible under the allowances of current law, on high-hazard flammable trains (HHFT) and electronically controlled pneumatic brakes (ECP).

(posted: 2-21-23)

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Rail Braking Systems Rule

In response to the February (2023) Norfolk Southern Railway in East Palestine, Ohio, and the release of a significant amount of hazardous material into the local environment, there are increasing calls to restore an Obama Administration rule pertaining to train braking system upgrades.

In 2015, the Pipeline Safety and Hazardous Materials Safety Administration (PHMSA) of the US Department of Transportation published a final rule requiring, in addition to updated train speed requirements, that all high-hazard flammable unit trains (HHFUTs) be equipped with electronically-controlled pneumatic (ECP) brakes. ECP brakes can significantly improve the ability of a long string of train cars to stop more quickly and with a reduced risk of some accidents.

The cost of ECP brakes are, reportedly, expensive. In an analysis conducted after implementation of the new rule, the Transportation Department under the Trump Administration decided in an updated rule that “the expected benefits, including safety benefits, of implementing ECP brake system requirements do not exceed the associated costs of equipping tank cars with ECP brake systems, and therefore are not economically justified.” The Trump Administration rule withdrew the requirement.

The National Transportation Safety Board (NTSB) is currently investigating the East Palestine accident and will eventually release a report on the causes of the accident which could also include recommendations for policy/regulatory changes. 

The Biden Administration has indicated that it will wait for NTSB results before proposing to again change current regulations. A group of environmental organizations, led by EarthJustice is threatening legal action if the Administration does not re-open the regulatory process which they believe was not conducted correctly for the removal of the ECP requirement.

Reporting in RollCall (February 17) indicated that the Administration would welcome legilslative action by the Congress to address rail safety instead of having to rely on what could be a lengthy regulatory process if a decision is made to move forward with rule changes. Given split party control of the Congress, however, quick (if any) legislative action seems unlikely.

It should be noted that while an ECP system potentially could have affected outcomes of the East Palestine rail accident, depending on the facts and circumstances that will eventually be determined, a HHFUT/ECP mandate under the prior rule would not have applied in this particular case. 

The rail cars that derailed in East Palestine were apparently not classified as HHFUTs; they were considered to be a lower-risk train car set (i.e., in this case a set of mixed train cars containing just three placarded Class 3 flammable liquids cars.) Of course, the HHFUT classification scheme can be revised going forward either legislatively or through regulatory changes.

(posted: 2-20-23)

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Tesla EV Recall

Tesla issued a voluntary recall of more than 362K electric vehicles (EVs) so that software can be updated that relates to self-driving features of vehicles fitted with the company’s Full Self Driving (FSD) Beta capability.The National Highway Traffic Safety Administration (NHTSA) published the recall notice (February 15).

The recall notice provides that “in certain rare circumstances” certain self-driving features “could potentially infringe upon local traffic laws or customs” such as when traveling through a “stale” yellow traffic light, the duration of a stop sign stop, changing speeds through variable speed zones, and negotiating lane changes out of turn-only lanes.

Tesla will update the software using the over-the-air internet. Tesla sells FSD Beta to customers at a cost of $15,000 up front or $199 per month, but owners must be able to obtain and hold a high driver-safety score. Tesla software monitors user driving habits.

(posted: 2-18-23)

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