Written by: Kate Sullivan
On July 28, 2022, the Federal Railroad Administration (“FRA”) proposed a rule (“the rule”) that would require a minimum crew size of two for all railroad operations.[1] Trains constantly transport hazardous chemicals across the United States, and the rule would provide increased safeguards to protect against environmental disaster.[2] When the rule was posted on the FRA’s website for feedback, comments were mostly supportive, but a railroad company, Norfolk Southern, seriously opposed this regulation.[3] One month after the FRA held a hearing with Norfolk Southern about the rule, Norfolk Southern’s own train derailed in East Palestine, Ohio and leaked toxic chemicals into the surrounding air, soil, and water.[4] Increased regulations are essential to prevent environmental disaster despite corporate opposition.
FRA’s proposed regulations for train crew size safety would establish safe minimum requirements to standardize the size of train crews depending on the type of operation across state lines.[5] All railroad operations would require a minimum of two crewmembers.[6] The rule provides an exception for operations that do not pose substantial risk to railroad employees, the public, or the environment.[7] Railroads would be able to petition the FRA to operate with one-person train crews, and to do so, railroads must identify, evaluate, and address, in a comprehensive and standardized manner, safety concerns that may arise from their use of one-person train crews.[8] The FRA intends to publish a final rule by February 2024.[9]
The responses to the proposed rule in the form of online comments are mostly supportive of the increased safety regulations.[10] Comments highlight the importance of railroads and being prepared in the event of an emergency.[11] One espouses how “Having multiple crew members working at all times protects against medical emergencies and derailments.”[12] Another posted on August 3, 2022, states that “Two people act as a safety check and balance on one another…These trains carry hazardous materials that have been known to destroy towns.”[13]
However, criticism was drawn from railroad companies, specifically Norfolk Southern.[14] On November 2, 2022, officials from the Department of Transportation, the FRA, and Norfolk Southern met to discuss the rule.[15] Among its criticisms were concerns for an increase in labor costs, remaining competitive with the trucking industry, and stifling technological advances.[16] Norfolk Southern stressed that stronger regulations would hurt the railroad industry and that the FRA should support industry growth to reduce future roadway emissions and help achieve the Administration’s sustainability goals.[17]
On February 3, 2023, a Norfolk Southern train carrying over 100,000 gallons of vinyl chloride, a toxic chemical that is extremely volatile at high temperatures, derailed in East Palestine, Ohio.[18] The roller bearings had overheated to failure requiring the train to stop.[19] After locals were forced to evacuate, responders performed a controlled explosion which officials worry has contaminated the surrounding air and water.[20] Residents suffer from nosebleeds and rashes, and it is estimated that more than 43,700 animals have died.[21]
While the failure of the wheel bearings ultimately caused the derailment, workers attribute the dangerous accident to overall poor safety procedures and regulations within Norfolk Southern which uses the industry standard of precision-scheduled railroading (“PSR”).[22] PSR is used to effectuate a system with less staff, longer hours, and longer trains to cut costs.[23] For Norfolk Southern, carmen were previously inspecting cars in about three minutes per car, but with PSR, they inspect cars in ninety seconds.[24] This system creates an environment with more pressure which leads to more mistakes being made and more accidents.[25] Rail workers attribute PSR to most derailments that have happened in the past year.[26]
East Palestine has shown the seriousness of derailments. The Federal Railroad Administration’s proposed rule to require a minimum train crew size for operating trains is essential for mitigating and preventing environmental disaster. As American infrastructure ages and becomes increasingly more dangerous, increased regulations, especially regarding the transportation of hazardous materials, will protect the public and the environment. At this moment, transportation regulations are inadequate in the face of the United States aging infrastructure.
[1] Amitabha Bose, Dpt. of Transportation: Train Crew Size Safety Requirements, 87 Fed. Reg. 207, 65021 (October 27, 2022): https://www.govinfo.gov/content/pkg/FR-2022-10-27/pdf/2022-23418.pdf.
[2] Train Crew Size Safety Requirements, 87 Fed. Reg. 45564 (proposed July 28, 2022) (to be codified at 49 C.F.R. pt. 218).
[3] Federal Railroad Administration Rule, 49 C.F.R. Pt. 218 (2022). Federal Railroad Administration, Mem. Re: Meetings with Norfolk Southern Corporation on Federal Railroad Administration’s Notice of Proposed Rulemaking for Train Crew Size Safety Requirements (Jan. 10, 2023), https://www.regulations.gov/document/FRA-2021-0032-13185.
[4] Josh Funk, Ohio derailment that released toxic chemicals raises railroad safety questions, PBS News Hour (Feb. 9, 2023), https://www.pbs.org/newshour/nation/ohio-derailment-that-released-toxic-chemicals-raises-railroad-safety-questions.
[5] 49 C.F.R. pt. 218.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Federal Railroad Administration, Comments on Proposed Rule for Train Crew Size Safety Requirements (Aug. 1, 2022), https://www.regulations.gov/document/FRA-2021-0032-0001/comment.
[11] Federal Railroad Administration, Comment on Proposed Rule for Train Crew Size Safety Requirements by Zachary Jeffreys (Sep. 6, 2022), https://www.regulations.gov/comment/FRA-2021-0032-3756.
[12] Id.
[13] Federal Railroad Administration, Comment on Proposed Rule for Train Crew Size Safety Requirements by Robert Hart (Aug. 3, 2022), https://www.regulations.gov/comment/FRA-2021-0032-0169.
[14] Federal Railroad Administration, supra note 3.
[15] Id.
[16] Id.
[17] Id.
[18] Becky Sullivan, Here’s the most thorough explanation yet for the train derailment in East Palestine, NPR (Feb. 23, 2023), https://www.npr.org/2023/02/23/1158972561/east-palestine-train-derailment-ntsb-preliminary-report-wheel-bearing.
[19] Id.
[20] Funk, supra note 4.
[21] Li Cohen, Estimated animal death toll from Ohio train derailment tops 43,700 as time frame for environmental recovery remains uncertain, officials say, CBS News (Feb. 23, 2023), https://www.cbsnews.com/news/ohio-train-derailment-believed-to-have-killed-more-than-43700-animals-as-officials-say-they-dont-know-how-long-it-will-take-for-the-environment-to-recover/.
[22] The Ohio Railroad Disaster, Explained, More Perfect Union (Feb. 14, 2023), https://perfectunion.us/ohio-railroad-disaster-explained/.
[23] Id.
[24] Id.
[25] Id.
[26] Id.