The Railway Safety Act of 2023 advances to Senate floor

A piece of legislation focused directly on various aspects related to railroad safety, entitled the Railway Safety Act of 2023, is headed to the Senate floor after being approved by the U.S. Senate Committee on Commerce, Science and Transportation yesterday by a 16-11 margin.

The bill was introduced on March 1 by its lead co-sponsors from Ohio, Sherrod Brown (D) and J.D. Vance (R). A major impetus for it was due to the February 3 derailment of a Norfolk Southern freight train, transporting hazardous materials, on the Ohio-Pennsylvania border.

As previously reported, the National Safety Transportation Board (NTSB) said in a February 14 update that as a result of the derailment, 38 rail cars derailed and a fire ensued which damaged an additional 12 cars, adding that there were 20 total hazardous material cars in the train—11 of which derailed. And on February 23, in its preliminary report, it said that surveillance video from a local residence showed what appeared to be a wheel bearing in the final stage of overheat failure moments before the derailment. It added that the wheel bearing and affected wheelset were collected as evidence to be examined by the NTSB. 

“This bipartisan legislation is focused on learning the lessons from East Palestine and helping us to avoid future accidents,” Sen. Cantwell said before the legislation passed 16-11. “No community should have to go through the trauma and evacuation and environmental damage that East Palestine had to go through, especially when you can prevent these from happening.”

The legislation is comprised of the following provisions, which were included in a Senate Committee on Commerce, Science and Transportation fact sheet:

• mandating the use of defect detection technology which could have prevented the East Palestine derailment, making them more frequent near dense urban areas;
• expanding the types of hazardous materials, like the vinyl chloride carried by the East Palestine train, that trigger increased safety regulations, including speed restrictions, better braking, and route risk analysis;
• improving emergency response by providing states information about the hazardous materials being transported by rail through their communities and strengthening railroad emergency response plans;
• preventing 30-second railcar inspections and mandates a new requirement that ensures railcars are properly maintained;
• increasing penalties for violations of rail safety law to ensure safety laws are taken seriously; and
• requiring two crewmembers to operate a train to prevent a situation where only one person is on the train in an emergency, among others

Following the committee’s vote, the advance the Railway Safety Act of 2023 to the Senate floor, the Association of American Railroads (AAR) issued a statement, calling on its member railroads to urge policymakers to continue refining the legislation to ensure the bill is focused on solution-driven policies that will measurably enhance safety.

“Committee negotiations on the Rail Safety Act have yielded substantive improvements that advance stakeholders’ shared goal—enhancing rail safety, supporting first responders and keeping our communities safe. Railroads support items of this bill and remain fully committed to working with the Committee and all members of the Senate to build on these improvements, with the ultimate goal of ensuring all provisions result in meaningful data-driven safety advancements that all can support. At the same time, challenges remain with certain provisions, including those that mandate crew staffing models, expand hazmat transportation operating requirements, micromanage detector networks, and unnecessarily broaden manual inspections. In a piece of safety legislation, each provision should be clearly designed to rectify a current safety challenge. As reported out of the Committee, this bill falls short of that goal. That said, while railroads continue to advance industry-wide safety commitments, AAR and its members will continue to work with Congress to address the remaining obstacles and advance smart policies.” - AAR President and CEO Ian Jefferies.

AAR explained that while the Commerce Committee is committed to a risk-based approach, in terms of defining what makes up a high hazard train, it noted that more work needs to be done to ensure that the rulemaking proceedings in the legislation “are driven by data, focused on safety and avoid unintended negative circumstances for the supply chain.”

In a recent interview with LM, Jefferies said that the focus on railroad safety has been prevalent, especially going back to the East Palestine derailment in February. And he noted that the Federal Railroad Administration’s 2022 railroad safety statistics are very encouraging.

As an example, he observed that the mainline accident rate in 2022 was at its lowest level it has ever been in the entire history of railroading and down 49% over the last 20 years, with derailment rates, while largely down, were slightly up annually, driven by incidents in rail yards, with track-caused derailments at an all-time low, as was the employee casualty rate, which he said is a major focus, as the industry wants all of its workers to be safe, and the hazmat accident rate was also at an all-time low.

“But that is not enough, and we recognize that,” said Jefferies. “As long as we are having incidents, we have to keep taking steps to get that number down. Not every category of accidents was down, and we need to focus on that. I think that is what you are seeing. Policymakers certainly recognize the need for continuous improvement but also recognize that rail is by far the safest way to move goods across land. We are proud of our safety record, but we are not satisfied and have more work to do. That’s a never-ending process.”

What’s more he said that the AAR and the railroad industry have a long history of supporting smart safety measures with demonstrable safety benefits and also have a long history of not waiting for the regulator or waiting for Congress to take safety steps when needed.  In 2011 and 2012, he said AAR was petitioning for stronger tank car standards at the DOT two years before they were formally issued by the DOT.

“Instead of waiting, we were able to get agreement with several of our shipper groups to adopt new voluntary standards, and the tank car standards that are in place today are largely a result of our petition and the work we did on the front end. Our track record is strong. There's been a lot of talk about wayside detection, recently, and hotbox detectors, and acoustic wheel bearing detectors. Well, those are all deployed, and those are all out on the network, because of the voluntary decisions we made because of the safety benefits they have. There is not a regulatory regime around those. We are absolutely pushing ahead without waiting when safety improvements can be made. At the same time, we certainly support appropriate regulatory responses and legislative responses. There are going to be things we agree on and things we disagree on. We are driven by data and science and when the data shows that a particular step is going to result in a higher level of safety, we are 100% behind that.”

Addressing the Railway Safety Act of 2023, Jefferies said he understands the need for the Ohio Senators Vance and Brown to want to introduce it.

“They want to be responsive and take responsible steps to reduce the likelihood of a similar incident occurring again,” he said. “And I certainly don’t fault them for that. I have said publicly that we see a feasible path forward on almost every one of the provisions on the bill. My definition of feasible might be different from others. But I generally think there's an agreeable path forward on most things. There's going to be some areas where we just, you know, have to draw a line in the sand, and that may be the way it has to be. If there are smart things to do on safety, we're going to be right there, supporting and trying to be part of the solution. Nothing happens in a vacuum, and nothing happens overnight. But we'll be engaged throughout the process.”