The unfortunate reality is that rail safety before and since last year’s noxious Norfolk Southern train derailment in East Palestine, Ohio, hasn’t changed and Congress needs to step in and enact legislative changes, testified stakeholders on Tuesday during a rail safety hearing on Capitol Hill.
“The East Palestine disaster wasn’t an isolated incident. It was a wake-up call that I heard, but fell on deaf ears elsewhere in government,” said U.S. Rep. Michael Rulli (R-OH) during the hearing held by the U.S. House Transportation and Infrastructure Subcommittee on Railroads, Pipelines, and Hazardous Materials.
“Our federal regulators are asleep at the switch while our communities live in fear that each passing train could be the next disaster. This is unacceptable. We must take decisive action,” said Rulli, who represents Ohio’s 6th District, which includes East Palestine, and who lives 16 miles from the derailment site.
The congressman joined his subcommittee colleagues, as well as federal rail safety leaders, union reps, and others in calling for passage of a proposed bipartisan bill that would address the dangerous results of the Feb. 3, 2023 East Palestine trail derailment, which caused what was determined by experts to be the unnecessary vent and burn of cars carrying toxic chemicals that continue to negatively impact residents and the environment across a wide swath of territory.
U.S. Rep. Troy Nehls (R-TX), chairman of the subcommittee that held the hearing, on July 11 co-authored and sponsored the Railroad Safety Enhancement Act of 2024, H.R. 8996, alongside eight original cosponsors, including Rulli and several other subcommittee members, such as U.S. Rep. Chris Deluzio (D-PA), part of whose Pennsylvania district borders East Palestine, and U.S. Rep. Seth Moulton (D-MA), the bill’s other coauthor.
“Freight rail is the most efficient and safest way to transport goods across our country, and it provides over 160,000 American jobs, but improvements are overdue,” Moulton said. “This bill would ensure that this $80-billion industry operates more safely and efficiently for years to come.”
Specifically, H.R. 8996 would require all Class I railroads to join the Federal Railroad Administration’s (FRA’s) Confidential Close Call Reporting System for two years, also known as C3RS.
The voluntary, confidential program, which is run by an independent third-party, allows railroads and their employees to report close calls, as well as unsafe events and conditions. Employees receive protection from discipline and FRA enforcement, while railroads receive protection from FRA enforcement for events reported within C3RS.
If enacted, the bill also would require states to notify first responders about the AskRail app, which is a tool that provides real-time data to first responders about a train consist, and would create a pilot program to address connectivity problems for the app along the rail network.
“The first responders in East Palestine had issues accessing the AskRail app due to lack of connectivity,” Nehls said. “Our bill creates an AskRail connectivity pilot program to fill gaps in service for the app along the national freight network.”
H.R. 8996 also would authorize an additional $1 billion for the Railroad Grade Crossing Elimination Program.
Grade crossings are among the deadliest spaces in the nation’s rail system, in part, because they are where America’s rail and highway systems meet, according to Jennifer Homendy, chair of the National Transportation Safety Board (NTSB), who said that better separation of these systems could save thousands of lives, among other benefits.
The proposed measure also would retain the two-person crew requirement adopted this spring in a final rule from the U.S. Department of Transportation (DOT) requiring that at least two crew members be working on all passenger and freight trains across the country, Nehls said.
Also, the bill would authorize $100 million annually for the FRA to establish a grant program to install onboard freight railcar telematics systems and gateway devices on cars carrying hazardous materials (hazmat).
“The purpose of the program is to outfit the new and existing freight rail cars carrying hazardous materials,” said Nehls. “Additionally, this program will provide shippers with real-time data about their tank cars’ health and performance.”
The bill also contains compromises on the phase-out date of hazmat-carrying DOT-111 tank cars. The industry has indicated it can meet these compromises, Nehls added, pointing to an issue that Homendy said has needed attention for years.
For instance, she testified that NTSB determined that if DOT-111s — which currently aren’t scheduled for replacement until 2029 — had not sustained mechanical breaches during the East Palestine derailment, then the hazmat cars would not have been exposed to the eventual fire from the unnecessary vent and burn.
“Phase out DOT-111 tank cars now,” Homendy testified. “It would be a tremendous improvement in rail safety overall.”
Perceived snubs
Many of the hearing participants expressed frustration with the railroad industry.
FRA Administrator Amit Bose testified that the safety performance of Class I railroads like Norfolk Southern “has stagnated over the last decade — and by some measures deteriorated.”
“Despite assertions to the contrary, derailment rates for our nation’s largest rail companies have not significantly improved,” Bose said, adding that the FRA has introduced five regulations under the Biden administration to address safety.
“And yet in every instance except one, the railroad industry has either sued to block them or filed petitions for reconsideration,” he testified.
Likewise, Homendy testified that NTSB, which has no enforcement authority, now has 215 open rail safety recommendations, and 116 recommendations to the FRA closed with unacceptable action.
“NTSB has investigated numerous accidents over decades and repeated, repeated, repeated its recommendations,” Homendy told policymakers. “Derailments could occur in any of your districts and we’ll be there… and we’ll probably have the same recommendations that we’ve already issued.”
Most of NTSB’s recommendations “have been ignored,” she added.
Two union representatives also testified that the railroads are more interested in appeasing Wall Street at the expense of safety.
David Arouca, national legislative director at the Transportation Communications Union, said that the railroads don’t do anything of their own accord and essentially have to be dragged into following safety rules.
“The railroads do not want to know how defective their trains are,” Arouca testified. “Indeed, the prevailing mindset of the Class Is in the current era can be summed up in the common refrain that our members hear every single day from management: ‘We’re in the business of moving freight, not fixing railcars.’”
Arouca added that enactment of H.R. 8996 is needed to help push them in the right direction.
“Trains with known problems are traveling yard to yard like ticking time bombs,” said Arouca. “No one wants to see a repeat of what happened in East Palestine.”
Gregory Hynes, national legislative director at the International Association of Sheet Metal, Air, Rail and Transportation Works (SMART-TD), which is the largest labor organization in American railroad, testified that Precision Scheduled Railroading and the railroads’ pursuit of the lowest possible operating ratio make quarterly profits the top goal over anything else, including safety.
Without legislation, said Hynes, “business will continue as usual in the industry and be detrimental to public safety.”
Workers “would be fired if we cut corners the way they cut corners now,” Hynes added. “Wall Street tells them, ‘You’ve got to cut crews.’ By doing that, it’s made them incredibly profitable but less safe.”
The International Brotherhood of Teamsters, which represents 1.3 million workers in the U.S., Canada, and Puerto Rico, last night also endorsed H.R. 8996, saying the bill includes several Teamsters priorities, such as requiring a qualified engineer and conductor on most freight trains, and providing essential equipment to roadway workers to ensure protections from being struck by trains and other railroad vehicles while working on track.
And while there were no representatives from the Class I railroads or major rail industry groups testifying at the hearing, Nehls said he did invite several Class I CEOs.
“It was my intention that they would use the opportunity to discuss the positive policies their companies have undertaken in the area of safety,” he said. “Some of these railroads have good stories to tell.”
Association of American Railroads President and CEO Ian Jefferies said in a statement on Tuesday that despite allegations to the contrary, railroads have repeatedly engaged with policymakers to explore how a data-driven approach could improve safety outcomes while mitigating unintended consequences.
“The railroads stand ready to work with this committee on developing that response,” Jefferies wrote.