The DOT’s proposals wouldn’t have prevented the East Palestine crash, and they reflect years-old priorities of environmentalists and unions.

NRPLUS MEMBER ARTICLE T he Department of Transportation announced a suite of policy actions it intends to take in response to the February 3 train crash in East Palestine, Ohio. “We at USDOT are doing everything in our power to improve rail safety, and we insist that the rail industry do the same — while inviting Congress to work with us to raise the bar,” said Secretary of Transportation Pete Buttigieg.

Looking closer at the department’s proposals, safety does not seem to be the primary justification. Instead, they include demands that environmentalists and unions have made for years, and none of them would have prevented the East Palestine crash.

What the DOT Wants Railroads to Do Immediately

The DOT begins with five actions it wants railroads to take immediately. These would not be enforced by regulation or statute (at least not yet) and are recommendations from the department to the industry.

The first is to join the Federal Railroad Administration’s Confidential Close Call Reporting Program. This is a whistleblower program that allows employees to report safety problems without fear of reprisal from regulators or employers. Amtrak, some commuter railroads, and smaller freight railroads are part of this program, but not the Class I freight railroads, according to the DOT. (The seven Class I freight railroads are Norfolk Southern, BNSF, Union Pacific, Kansas City Southern, CSX, Canadian National, and Canadian Pacific.)

Of all the DOT’s proposals, this is the most reasonable. If the program is good enough for those other railroads, it should be good enough for the Class I railroads. But we have no evidence so far that nonparticipation in this program had anything to do with the East Palestine crash. What we know at this point suggests a freak accident due to wheel bearings overheating while the train was in transit, but the National Transportation Safety Board should be able to provide more certain answers when it releases its report in a few weeks.

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The second is to “deploy new inspection technologies without seeking permission to abandon human inspections.” The DOT mentions automated track inspection (ATI) as one such technology. One type of ATI device would be mounted on the bottom of ordinary locomotives and use lasers to inspect the tracks. It would transmit inspection data to office-based analysts in real time, allowing them to pinpoint problem areas and send maintenance crews to make repairs.

That’s how track inspection should be done in 2023, and that device was developed by Norfolk Southern, but unions oppose it because it could reduce union jobs. As I wrote in April of last year, the FRA under Biden appointees denied Norfolk Southern’s request to expand its ATI test program, despite the fact that it performed well on safety metrics. The only public comment the FRA received during rulemaking was from the maintenance-of-way-workers’ union. Norfolk Southern never wanted to eliminate manual inspections entirely, merely to reduce their frequency given the effectiveness of ATI. But now the DOT is taking unions’ side yet again by repeating their charge that railroads want to “abandon human inspections.” If ATI works, and the evidence suggests that it does, then it makes sense to update regulations to reflect that technological advance, rather than sticking with the same manual-inspection rules from decades ago to please organized labor.

The third is to expedite the adoption of safer tank cars for Class 3 flammable liquids. Congress had already mandated these safer cars, called “DOT 117,” to be phased in by 2029, under a law passed in 2015. DOT 117 cars have thicker shells than previous cars and more safety precautions in the event of an accident.

Railroads have been adopting DOT 117 tank cars on the congressionally mandated timeline, with 80 percent of the crude-oil fleet and 54 percent of all cars carrying Class 3 flammable liquids (which most commonly includes crude oil, refined products, and ethanol) already in compliance as of 2020. This regulation would have nothing to do with the controlled burn of vinyl chloride that is at issue with the East Palestine crash, however, because vinyl chloride is transported as a gas, not a liquid, and regulations for gas tank cars are stricter than those for liquid tank cars. Only three cars on the East Palestine train were carrying Class 3 flammable liquids, and only one was breached.

The fourth is providing notification to state authorities when trains with hazardous materials are passing through. Ohio governor Mike DeWine made a point of mentioning that state authorities were not alerted to the train’s contents until after the accident had happened. Current regulations do not require state-authority notification for trains such as the one in East Palestine. It will be easier to estimate the efficacy of this proposal for first responders once the NTSB establishes a definitive timeline of who knew what and when, but it would have done nothing to prevent the accident from occurring.

The fifth is the most flagrant of the DOT’s pro-union bias: “provide paid sick leave.” This is rehashing the labor-contract fight from the end of last year, when the U.S. nearly saw a nationwide freight-rail strike over the issue of sick leave. Congress acted to avoid that outcome, but progressives have continued to push the narrative that no rail workers get sick leave, and the greedy railroads will never give it to them without government mandates.

Neither part of that is true. Rail workers, depending on their position and company, received a variety of sick benefits already, such as defined sick days, supplemental sickness benefits, and partial-income replacement. Sick-leave policies are negotiated locally, not nationally, which is why they were not included in the national contract. Since Congress adopted the national contract to avert a strike, railroads have been extending sick benefits company by company, with Union Pacific announcing today that it has come to an agreement with two of its unions. The DOT acknowledges that the process is playing out, but there is no reason to make sick leave part of the response to East Palestine, except as a sop to organized labor from a pro-union administration.

What the DOT Wants to Regulate Further

In addition to asking railroads to make changes, the DOT said it is pursuing further regulation.

It starts with a crew-size mandate. The industry standard is currently two-man crews for freight trains, but technological advances have made the second crewman less necessary than in the past. Future advances, including automation, would likely eliminate the need for the second crewman entirely. Freight trains in other countries, and passenger trains in the U.S., often operate with only one person in the cab. The DOT says it is looking to require two-man crews through regulation.

As I wrote in November 2021, mandating two-man crews would also be a sop to unions. This regulatory fight has been ongoing since the Obama administration, and it has little to do with present levels of safety. The concern with a mandate is that it will prevent future innovation by freezing current levels of labor productivity. Regardless, the East Palestine train had three crew members aboard, so mandating two-man crews would have had no effect on this accident.

The DOT also says it wants to initiate focused safety-inspection programs on “routes over which high-hazard flammable trains (HHFTs) and other trains carrying large volumes of hazardous materials travel” and “legacy tank cars” that have not upgraded to DOT 117.

The East Palestine train was not an HHFT, nor would it be one under any reasonable definition of the term. The vast majority of the train was carrying non-hazardous materials, and of the hazardous materials being carried, only three cars carried Class 3 flammable liquids, which is what the HHFT designation applies to. It’s reasonable to have different regulations for liquids and gases, and it wouldn’t make sense to fold hazardous gases into the HHFT definition. And as previously mentioned, DOT 117 standards have little to do with the accident.

The rest of the DOT’s proposed actions involve spending money from the bipartisan infrastructure law on things such as eliminating railroad crossings through grade separation and extending financing for infrastructure improvements. There is no evidence so far that outdated infrastructure contributed to the accident, and privately owned freight-rail infrastructure is better maintained than government-owned highways and airports, but the NTSB report will shed more light on that question.

What the DOT Wants Congress to Do

The DOT requested congressional action on several issues as well.

It wants to raise the maximum fine for safety violations above the current limit of $225,455. The DOT says, “This is a rounding error for a company that reported an astonishing record annual operating income in 2022 of $4.8 billion.” The current Code of Federal Regulations says that “a person who knowingly violates a requirement of the Federal hazardous material transportation law” is subject to a maximum fine of $225,455 “if the violation results in death, serious illness, or severe injury to any person or substantial destruction of property.”

There are not currently any allegations that anyone knowingly violated any hazardous-material-transportation law in East Palestine, so this provision would not apply. The accident also had zero deaths and zero injuries, so the only way this provision could apply — even if it turns out that somebody did knowingly violate the law — would be if property damage was considered substantial. The overall profitability of rail companies should not be relevant to fines. If rail companies became less profitable, that would not be a good argument for reducing their fines. Making profits from wrongdoing would be a problem, but simply making money is not.

The DOT urges Congress to “follow through” on new rules for hazardous shipments and electronically controlled pneumatic brakes (ECP). ECP brakes are different from standard air brakes because they apply braking pressure throughout the train instantaneously. It takes time for braking pressure to travel down the train with air brakes.

Environmentalists have pushed ECP-brake mandates. They want to make it more expensive and difficult to transport fossil fuels by rail. Air brakes are standard around the world, and there’s little evidence that ECP brakes make a significant difference on safety. The National Academy of Sciences studied ECP brakes in emergency situations after being asked to do so by Congress in 2015. Its 2017 report found the evidence to be inconclusive, which is why the Trump administration scrapped a pending regulation to mandate ECP brakes in more situations. Even if it had gone through with that regulation, it would not have applied to the East Palestine train, as NTSB chairwoman Jennifer Homendy has pointed out. The Government Accountability Office criticized the DOT’s data the last time it tried to mandate ECP brakes in 2016.

The Danger of Overregulation

The bulk of Buttigieg’s response is a wish list of progressive regulatory ideas that have been around for years and have nothing to do with the East Palestine crash, with some pro-union measures thrown in. The DOT should not use this disaster as an opportunity to secure long-sought-after regulatory changes.

That’s especially true if those regulations make it more costly to ship hazardous materials by rail. Hazardous materials have to move somehow, and shipping them by rail is the safest way to do so over land. The alternative is shipping them by truck, putting these dangerous materials on highways with far more accidents. Making rail more expensive with regulations that wouldn’t even address the East Palestine accident would increase the incentive to ship by truck instead.

Between 1990 and 2021, there were 519,118 hazardous-materials incidents in the U.S., resulting in 462 total fatalities. Eighty-eight percent of those incidents were on highways, as were 328 of those fatalities. Only 21 fatalities were on railroads. Roughly twice as many people were injured in hazardous-materials accidents on highways than in accidents on rail in that same period, and property damage was over 2.5 times higher. The unintended consequences of making rail more expensive could be severe.