States push to tighten rail safety after Ohio train derailment

July 19, 2024

In the month after a train derailment unleashed toxic chemicals in northeastern Ohio, state legislators across the country have been looking to tighten rules for railroads while pressuring federal regulators responsible for oversight of the industry to take more action.

Fueled by the images of black plumes of burning vinyl chloride in East Palestine, the efforts in state capitals are putting a new focus on rail safety, even as states hold limited power over the nation’s railways.

At least 15 states have introduced rail-safety bills this year to target issues such as onboard crew sizes, train length and the use of trackside safety detectors that are key in the Ohio investigation. Most of the proposals were introduced before the Feb. 3 derailment — often coinciding with state legislatures convening in January — but have gained momentum in its aftermath.

Most regulations for railroads exist at the federal level, but safety concerns have increasingly prompted states to establish their own rules where no federal regulation exists. Lawmakers say they hope the bipartisan efforts moving through statehouses will build pressure on Washington to take more action.

In Ohio, the state House passed sweeping legislation Wednesday aimed at reducing railroad incidents, forging ahead on rail safety for the first time in at least a decade.

“It’s unfortunate that it took a disaster to get movement on this issue, but we’re doing what we can with bipartisan legislation to help right this wrong and make sure it never happens again,” said Rep. Michele Grim, a Democrat from Toledo.

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The Ohio proposal includes a provision — a first of its kind in the nation — that aims to ensure sensors that detect wheel axle defects in traveling trains are used and that crews adequately respond to emergency alerts they issue. The technology isn’t regulated at the federal level and is used at the discretion of railroads. In East Palestine, the warning of an overheated wheel bearing came too late to avoid the derailment.

The Ohio spill and other derailments involving hazardous chemicals in recent years have spurred support for more oversight at the state level amid calls on federal officials to act.

“We need to send a message to the [Federal Railroad Administration] that this is important,” said Nebraska Sen. Mike Jacobson, a Republican who is pushing a crew-size requirement for freight trains. He said if more states pass similar measures, the FRA will feel pressure to act.

The Biden administration had been seeking to strengthen oversight of railroads following an era of deregulation under Trump. The Transportation Department has urged more safety measures in the wake of the derailment, issuing advisories and calling on Congress to update railroad laws.

Railroads are critical to interstate commerce and are subject to federal regulation, meaning state legislation can have relatively little practical effect other than to exert federal pressure. State lawmakers have still faced resistance from railroad executives, who argue they have no role in regulating the industry.

“If railroads were to be regulated by a patchwork of state laws that caused us to change our operations when one of our trains crossed a state border, it would hinder our ability to deliver the service product our customers are counting on,” Randy Noe, Norfolk Southern’s assistant vice president of regulatory affairs, wrote to members of the Maryland General Assembly this year in a letter against a bill that would establish a minimum two-person crew.

Noe said “police powers” of states are limited to certain oversight of grade crossing improvements.

Before Ohio derailment, Norfolk Southern lobbied against safety rules

Michael N. Conneran, a San Francisco-area lawyer who has represented commuter railroads and cities, said the idea of federal railroad law taking precedence is long-standing — and one that he said railroads seek to protect.

“The fundamental concept is that trains run nationwide and it’s important there be a consistency in the rules that are applied to railroads because it would be very inefficient for them to have to change equipment or act differently from state to state,” Conneran said.

A proliferation of local rules has sparked safety concerns in the past. In the 1990s, federal rail regulators examined some 2,000 local bans on train horns and concluded they were contributing to crashes at grade crossings. Congress directed the federal government to set a national rule that overrode the local bans, requiring trains to sound their horns as they approached. The rule also recognized the interest of communities in minimizing noise, creating a process for “quiet zones” if crossings had other safety measures in place.

Some state officials, however, say federal law grants them the right to adopt or enforce a law or regulation pertaining to rail safety or security until the federal government steps in.

“Our friends in the rail association continue to say that we cannot do anything. And I want to be very clear to everyone in this room, everyone listening, that that is not the case,” Bride Rose Sweeney, a Democrat on the Ohio House Finance Committee, said Wednesday before new measures passed. “We represent 11 million people in this state.”

The Ohio legislation mandating a crew size of two people notes the FRA is considering the same rule. If the FRA approves it, Ohio would go by federal rule, state officials said, then would revert to state law if the federal measure is withdrawn. The bill also would require state agencies to record the transport of hazardous materials through the state and require companies to report data from defect detectors.

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Jay Edwards, a Republican and chairman of the Ohio House Finance Committee, acknowledged state limitations but said it would be helpful to have such measures on the books.

In East Palestine, investigators with the National Transportation Safety Board have indicated the train passed three detectors along about 30 miles, with the third triggering an emergency temperature threshold. The FRA this week recommended railroads improve their use of the detectors. In Ohio, the House voted to direct two state agencies to work with railroads to improve how system warnings are communicated.

Jared Cassity, legislative director for the union SMART-Transportation Division, which represents workers on every major U.S. railroad, said the Ohio incident has fueled momentum for rail safety measures across the country.

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“It’s a renewed focus on rail safety following a rail disaster that shouldn’t have occurred,” he said.

In Arizona, Democrat Consuelo Hernandez partnered with Republican Tim Dunn on a bill to limit the length of trains traveling in the state to 1.6 miles. Both cited complaints in their districts about trains as long as three miles blocking crossings for hours.

“This is an issue that both sides can agree on,” Hernandez said.

At least six states are considering limiting train lengths in a response to their growing size. Other proposals include requiring state safety inspections and empowering state agencies to speed up rail safety regulations. Utah is seeking to create a railroad safety office. Nebraska leaders want to facilitate the reporting of complaints about blocked railroad crossings.

Seven states this year have introduced bills setting minimum crew-size requirements for freight railroads, an issue spotlighted in 2013 after an 74-car train carrying crude oil — staffed only by the engineer — crashed in Québec and killed 47 people. Supporters say two people could more easily respond in an emergency.

The two-person crew minimum already is law in at least seven states — Arizona, Colorado, Illinois, Nevada, Washington, West Virginia and Wisconsin, according to an analysis by the National Conference of State Legislatures. Massachusetts and New Jersey have approved processes that would allow the state to order a railroad to increase a train’s crew size under certain circumstances.

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The Trump administration withdrew an earlier proposal to regulate crew sizes in 2019, arguing that it also was blocking states from creating their own laws. The FRA said at the time the federal government can block state laws by declaring no regulation is necessary, but a federal appeals court rejected the agency’s view, opening the way for the Biden administration to take another look.

In a fresh proposal to regulate crew sizes issued last year, the FRA said variation in state laws was “of particular concern.”

Current labor agreements ensure that freight trains on mainlines have two people — an engineer and conductor — onboard. Shifts in the industry, including technological improvements, have led to reductions in crew members, from five in the 1960s to two by the end of the 1990s. Labor leaders, however, have warned in recent years that railroads are eyeing one-person trains.

Norfolk Southern has lobbied against the proposed federal crew-size rule. In comments on the latest proposal, the railroad said it supported a uniform national rule, but not the two-person rule proposed by the Biden administration, arguing it would be worse than the status quo.

“No railroad would prefer a harmful, costly, constraining uniformity to the current situation where only a few states attempt to impose requirements,” the railroad wrote.

Unions have sought to make crew sizes a matter of federal law, trying unsuccessfully to have rules included in the 2021 infrastructure law. A bipartisan group of lawmakers revived the idea Wednesday, including it in a rail safety package that would generally require a conductor and engineer onboard trains.

Jacobson, the Nebraska lawmaker, and Maryland Del. Dana Stein, a Democrat from Baltimore, introduced similar crew-size bills this year in their respective states, highlighting the safety of workers and communities. Both mentioned the Ohio incident in urging support for the regulation.

“The railroads can afford it today. They’re all very, very profitable,” Jacobson said. “And really, we’re at a point where it’s almost becoming greed over safety — and that’s where I draw the line.”

Stein said states also want to ensure that regulations stay on the books regardless of political shifts in Washington.

“Federal regulation can always be undone by the next administration,” he said. “And this is a basic issue of public safety, which states have a very clear interest in regulating.”

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