States Seek To Overturn Federal Directive On Freight Train Crew Size

The states of Illinois, Nevada and Washington are among the latest states that have decided to fight a federal order that prevents states from passing laws that would require freight trains to have a train crew size of at least two individuals.

Nevada has filed a petition with the U.S. Court of Appeals for the Ninth Circuit asking the court to review a May action by the Federal Railroad Administration (FRA) that prevents states from passing laws mandating train crew size. 

The FRA had said in May that it was no longer seeking a proposed rulemaking requiring freight trains to have more than one crew member under certain conditions. The agency said its decision to withdraw the proposed rulemaking on train crew sizes also preempts the state laws that mandate otherwise. 

That in turn prompted Nevada, which passed a law earlier this year on train crew size, to ask the court's help in reviewing the FRA's actions.

"Nevada is aggrieved by the provisions…because they infringe, without lawful authority, upon Nevada's sovereign interest in enforcing its own health and safety statute on the subject of train crew staffing," Nevada's Attorney General Aaron Ford said in a July 29 petition. Defendants listed in the petition were the U.S. Department of Transportation and the FRA. 

Ford continued, "Additionally, the decision to preempt state and local laws was arbitrary and capricious and without an evidentiary basis. Accordingly, Nevada requests that the Court set aside the FRA's decision."

In addition to Nevada's petition, the California Public Utilities Commission filed a similar request (also with the U.S. Court of Appeals for the Ninth Circuit) on July 25, while Washington state Attorney General Robert W. Ferguson filed his state's petition on July 29.

While these state petitions are pending before federal court, Illinois last week passed a state law requiring train crews to have at least two members on board.

On August 9 Illinois Governor J.B. Pritzker (D) signed Senate Bill 24, which requires freight trains to have at least two crew members while in Illinois. The requirement is effective on January 1, 2020. Illinois follows other states that have passed similar legislation in recent months, including Colorado and Nevada.

Union members of the Brotherhood of Locomotive Engineers and Trainmen "worked so hard to lobby for passage of this much needed safety legislation," said the group's president, Dennis R. Pierce. "Legislation such as this proves that American citizens and their elected leaders have a great deal of concern regarding the safety of railroads that travel through our country. They understand the need to have adequately staffed trains in order to maintain the highest levels of safety."

Whether the new law has traction is unclear because of the FRA's declaration in May regarding train crew size.

But the Illinois bill states that its mandate "shall remain in effect until a federal law or rule encompassing the subject matter has been adopted."

The SMART Union – Transportation Division (SMART-TD) is taking legal action against the FRA's withdrawal of its proposed rulemaking. Leaders of the union also said it will seek to work with the states' attorneys general and lobby Congress for a federal rule on train crew size.

"There is going to be a big push coming," said  SMART-TD president John Previsich at the union's regional meeting on July 3. The union is also petitioning the U.S. Court of Appeals for the Ninth Circuit, according to court filings.

The FRA declined to comment because of pending litigation. 

Meanwhile, the Association of American Railroads (AAR), which has said that train crew size is an issue that should be negotiated between the railroads and the unions, reiterated its support of the May decision by the FRA to withdraw the proposed rulemaking on train crew size.

"After a lengthy and thorough process of evidence collection and analysis, a public comment period and a public hearing, the FRA concluded that a federal crew size regulation was unnecessary and inappropriate because there is no data suggesting two-person crews are safer than one," AAR said. 

AAR continued, "The federal rail safety regulator made clear that its decision was intended to preempt any state legislative action on the matter, consistent with federal law and the national transportation policy of a uniform federal system of rail safety regulation."

Train crew sizes and longer trains

The debate over train crew size continues amid concerns by the union and some politicians that the safety concerns that could come from longer trains warrant crew sizes of at least two people. A Senate bill was introduced earlier this summer addressing train crew size, while the Illinois legislation cites longer trains for the bill's rationale. 

The transportation of hazardous and volatile materials on trains, "coupled with substantially longer trains, creates significant health, safety and security concerns for local communities," the bill said. "Adequate railroad operating personnel are critical to ensuring railroad operational safety and security and in supporting first responder activities in the event of a hazardous material incident, grade crossing incident or mechanical failure."

The unions also cited longer trains as an argument for two-person train crews.

"At a time when freight trains are increasingly longer and carrying the most hazardous of chemicals through our communities, common sense tells us that response time to critical incidents involving trains is surely enhanced when a safe and adequate train crew size of at least two individuals are deployed, which is already the industry norm today and should be well into the future," said Bob Guy, SMART TD legislative director for Illinois. 

While train crew size has been the focus of the debate on the merits of the new Illinois law, the law also addresses rail crossings. The law details penalties for blocking a highway-grade rail crossing for longer than 10 minutes under certain timeframes and locations, and it prohibits a train from blocking emergency responders at rail crossings if the train crew is aware that the train is blocking the crossing.

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