BILL ANALYSIS Ó
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: SB 730 Hearing Date: April 22,
2015
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|Author: |Wolk |
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|Version: |February 27, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Alma Perez-Schwab |
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Subject: Railroads: movement of freight: trains or light
engines: crew size
KEY ISSUES
Should the Legislature prohibit a train or light engine used for
the movement of freight to be operated in California unless it
has a crew of at least 2 individuals?
Should the Legislature authorize the Public Utilities Commission
to assess civil penalties against any person who willfully
violates this 2 person crew requirement?
ANALYSIS
Under existing law, the Division of Occupational Safety and
Health (also known as Cal/OSHA) has jurisdiction over, among
other things, the occupational safety and health of employees of
rail rapid transit systems, electric interurban railroads, or
street railroads and the safety and health of railroad employees
employed in offices and in shops devoted to the construction,
maintenance or repair of railroad equipment. (Labor Code §6800)
The existing Federal Railroad Safety Act (FRSA) authorizes the
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Secretary of Transportation to prescribe regulations and issue
orders for all areas of railroad safety (supplementing existing
rail safety statues and regulations) and to conduct necessary
research, development, testing, evaluation, and training. The
FRSA provides that to the extent practicable, laws, regulations,
and orders related to railroad safety and security are required
to be nationally uniform, but authorizes a state to adopt or
continue to enforce a law, regulation, or order related to
railroad safety or security until the Secretary of
Transportation (with respect to railroad safety matters), or the
Secretary of Homeland Security (with respect to railroad
security matters), prescribes a regulation or issues an order
covering the subject matter of the state requirement.
Under existing law, the California Public Utilities Commission
(CPUC) is the agency charged with ensuring the safety of freight
railroads, inter-city and commuter railroads, and
highway-railroad crossings in the State of California. The CPUC
performs these railroad safety responsibilities through the
Railroad Operations and Safety Branch (ROSB) of the Safety &
Enforcement Division.
This Bill would prohibit, on and after February 1, 2016, a train
or light engine used in connection with the movement of freight,
as specified, from being operated unless it has a crew
consisting of at least two individuals. Additionally, the bill
would authorize the Public Utilities Commission to assess civil
penalties against any person who willfully violates this
provision according to the following schedule:
1. $250 to $1,000 dollars for the first violation;
2. $1,000 to $5,000 dollars for the second violation within
a three-year period; and
3. $5,000 to $10,000 for the third violation and each
subsequent violation within a three-year period.
COMMENTS
1. Background on Railroad Operations and Safety:
The California Public Utilities Commission performs railroad
safety responsibilities through the Railroad Operations and
Safety Branch (ROSB) of the Safety & Enforcement Division.
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ROSB's mission is to ensure that California communities and
railroad employees are protected from unsafe practices on
freight and passenger railroads by enforcing state and federal
rail safety rules, regulations, and inspection efforts; and by
carrying out proactive assessments of potential risks before
they create dangerous conditions.
ROSB personnel investigate rail accidents and safety related
complaints, and recommend safety improvements to the
Commission, railroads, and the federal government as
appropriate. In addition to enforcing California state Public
Utilities Code and CPUC General Orders, ROSB inspectors
enforce Federal Railroad Administration (FRA) regulations in a
state/federal enforcement partnership. According to the CPUC
website, ROSB currently has 45 certified inspector positions
that are FRA-certified and are divided into the FRA's five
railroad subject areas described below:
1) Operating Practices - enforcing regulations for
main, branch and yard train operations, including hours
of service, carrier operating rules, employee
qualification guidelines, and carrier training and
testing programs to enforce compliance with railroad
occupational safety and health standards, accident and
personal injury reporting requirements, and other
requirements.
2) Track - enforcing regulations for track
construction, maintenance and inspections.
3) Signal & Train Control - enforce safety rules on
signal system construction, maintenance and inspection
activities.
4) Motive Power & Equipment - enforce safety rules on
locomotives, freight and passenger rail cars, air brakes,
and other safety appliances maintenance and inspection
activities.
5) Hazardous Materials - enforcing regulations for rail
movements of hazardous materials, such as petroleum and
chemical products; and inspection of hazardous materials
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shippers.
2. Railroad Safety Statistics:
According to the U.S. Department of Transportation - Federal
Railroad Administrator, the nation has had two straight years
of record-breaking safety performance, along with significant
reductions in all types of accidents since FY 2008. (Safety
Fact Sheet, February 2014) Overall, the FRA found that human
factor caused accidents were down by 38%, track defects down
by 37% and equipment defects down by 41%.
In California, the CPUC reported the following activities in
its 2013-14 Annual Railroad Safety Activity Report:
§ Performed 3,692 inspections and follow-up
inspections to monitor the railroads' compliance and
remedial actions;
§ Identified 11,445 federal regulation non-compliance
defects (which are notices to railroads of an existing
issue - railroads are directed to replace, repair or
remove the defects. Violations exist when the defects are
not remediated or conditions are so that they warrant a
civil penalty and immediate remedial action);
§ Completed 349 CPUC General Orders (GO) reports that
identified 938 defects;
§ Recommended 259 violations of FRA regulations;
§ Cited 11 violations of state regulations, and;
§ Responded to and resolved 28 informal safety
complaints.
The CPUC Office of Rail Safety can assess penalties depending
on the violation. For violations of federal railroad safety
regulations, ROSB railroad safety inspectors make
recommendations to the FRA for the assessment of penalties. A
railroad issued such a citation may accept the fine imposed or
contest it through a process of appeal.
3. Need for this bill?
On July 6, 2013, there was a derailment of an unattended
Montreal, Maine and Atlantic Railway freight train containing
crude oil in Lac-Mégantic, Quebec, Canada. In this accident,
the train had been operated by one person who failed to secure
the hand brakes properly before retiring for the night. The
train rolled down the grade uncontrollably and crashed and
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exploded killing 47 people.
In response to this tragic incident, the U.S. Department of
Transportation created three Railroad Safety Advisory
Committee (RSAC) Working Groups - Appropriate Train Crew Size,
Securement, and Hazardous Materials Issues. The RSAC held
emergency meetings to evaluate and consider wide-ranging
proposals to enhance railroad safety including the safe
shipment of crude oil by rail. On April 9, 2014, following
deliberations of the working groups, the U.S. Department of
Transportation's Federal Railroad Administration (FRA)
announced its intention to issue a proposed rule requiring
two-person train crews on crude oil trains and establishing
minimum crew size standards for most main line freight and
passenger rail operations. According to the FRA Administrator
Joseph C. Szabo, "We believe that safety is enhanced with the
use of a multiple person crew-safety dictates that you never
allow a single point of failure. Ensuring that trains are
adequately staffed for the type of service operated is a
critically important to ensure safety redundancy." The FRA
has not yet adopted regulations for implementation of this
minimum crew size rule.
Existing California law has no minimum size of railroad crew
requirements. Similar to the federal efforts on the issue,
this bill would prohibit, on and after February 1, 2016, a
train or light engine used in connection with the movement of
freight, as specified, from being operated unless it has a
crew consisting of at least 2 individuals. According to the
Federal Railroad Safety Act, it is the policy of Congress that
rail safety regulations be nationally uniform to whatever
extent practicable. However, a state is permitted to continue
to regulate with respect to any rail safety matter until such
time as the Secretary of the U.S. Department of Transportation
issues a rule covering the same subject matter. Also, a state
is permitted to adopt additional or more stringent standards
than the federal standards if the state rule does not create
an undue burden on interstate commerce, is not incompatible
with federal standards, and is necessary to eliminate or
reduce local safety hazards (Federal Railroad Safety Act of
1970).
4. Similar Efforts at the State and National Level:
In addition to the pending two-person train crew rule at the
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federal level, there are several states that have either
implemented or are considering similar requirements. In the
State of Wisconsin no person operating or controlling any
railroad, as defined, may allow the operation of any railroad
train or locomotive unless it has a crew of at least 2
individuals. It goes even further by requiring that one of the
individuals be a certified railroad locomotive engineer and
imposing penalties for violations ($25-100 for a first
offense, $100-500 for a 2nd offense within 3 years, and
$500-1000 for a 3rd offence within 3 years). Two-person
railroad crew legislation is also pending in other states
including Washington, Nebraska, Minnesota, Wyoming, Iowa, Utah
and North Dakota.
5. Wisconsin - case seeking invalidation of "two-person crew":
On July 23, 1999, the United States Court of Appeals, Seventh
Circuit made a decision in the case of Burlington Northern and
Santa Fe Railway Company, Soo Line Railroad Company, Union
Pacific Railroad Company, and Wisconsin Central Ltd. vs.
Attorney General, et al of Wisconsin and the United
Transportation Union. The railroads brought action against
Wisconsin Attorney General and district attorneys seeking
invalidation of Wisconsin's "two-person crew" statute because
Federal Railroad Administration (FRA) regulations allegedly
preempted same safety concerns. The court held that crew
qualification requirements were preempted by federal law but
held that its requirement for two-person crews was not.
According to a February 5, 2014 bill report for HB 2718 by the
House Committee on Labor & Workforce Development, "The court
held that the state law was preempted with regard to crew size
on two types of train operations, "holstering" and "helping,"
because the FRA had essentially approved, in an order,
one-person crew size for those types of operations. However,
the court held that the state statute was not preempted with
regard to crew size when it came to "over-the-road"
operations, which involve hauling train cars between
terminals."
6. Proponent Arguments :
According to the author, SB 730 would protect communities by
requiring trains and light engines carrying freight within
California to be operated with an adequate crew size for both
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public safety reasons and the protection of railroad workers.
According to proponents, this bill is designed to maintain the
status quo in freight operations in this state, as the
overwhelming majority of trains operated in the United States
run with a two person crew. Despite that fact, however, they
argue that it is clear that the intention of the railroad
industry is to move to a one person crew. The shift to
one-person crews raises safety concerns, especially in light
of accidents involving the transport of hazardous materials
through urban areas such as the derailment of a fuel train,
run by a one-man crew, in Quebec in 2013 which killed 47
people, along with several other destructive derailments of
fuel trains in the U.S.
Proponents argue that if this were just about staffing, that
would be one thing, but this is about public safety. Freight
trains are longer, heavier and have more hazardous, toxic,
dangerous and explosive materials being hauled than ever
before. As such, an accident can be devastating and deadly.
Proponents argue that every effort should be made to minimize
the exposure and impact of this danger to the general public.
Advanced technology has made the railroads safer; however,
proponents argue that nothing can replace an extra set of eyes
and ears when trains drive through populated areas. A single
operator in an emergency situation cannot properly assess the
situation, secure the train, and notify police, fire and other
necessary officials in a timely manner. The author believes
that requiring two pairs of eyes and ears at the head of every
freight engine ensures communication and safety redundancy, as
well as operational efficiency. Lastly, proponents state that
the federal government and other states are grappling with how
to increase railroad safety and 14 states have introduced
minimum crew legislation this year.
Additionally, the California Public Utilities Commission has
voted unanimously to support SB 730 stating that requiring
two-person crews is a straightforward way of ensuring two
qualified crew members continue to operate freight trains in
California until such time as the rules and practices of safe
operation may be updated for safer operation with smaller
crews. According to the CPUC, of all the industries subject
to CPUC oversight (energy, water, telecommunications, and
transportation) rail accidents result in the greatest number
of fatalities each year.
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7. Opponent Arguments :
According to the California Railroad Industry, they oppose
this bill because it will unnecessarily and unreasonably
interfere with the ability of railroad management and union
leaders to fully bargain over the best and safest crew size
for each assignment in California. They argue that state
legislation that attempts to alter terms of collective
bargaining agreements would harm the process and would
permanently undermine the principle of labor and management
cooperation that underpins the Railway Labor Act.
Opponents argue that, historically, safety and technology
improvements have been a primary catalyst for negotiations
related to crew size. As a result of these improvements, rail
labor and rail management have agreed to reductions in crew
size from as many as five persons in the 1980's to two persons
on most territories operating today. They argue that these
reductions in crew size were achieved without compromise to
safety as witnessed by a decline in rail employee injuries,
train accident and grade crossing collision rates by 79
percent or more. Hazardous material accidents rates are down
91 percent.
Additionally, opponents argue that the collectively bargained
crew size also provides the parties with flexibility to
address needs that arise from advancements in technology,
design and planning. The railroads are not asking for
one-person crews at this time, however, they are opposing this
legislation so that if safe operating practices and technology
make single person crews viable in the future, then that
option is not foreclosed in California. Opponents point to
Positive Train Control, which is designed to automatically
stop a train before certain accidents caused by human error
can occur, as a contemporary example of pursuing such
technological advancements. According to opponents, safety
records suggest these operations are safe and there is no need
to increase crew size.
Further, opponents ask for consideration of comparable
scenarios such as trucks that haul on public roadways many of
the same commodities also transported by railroads, and yet
the trucking industry is not required to have two-person
crews. Additionally, they argue that appropriate crew size is
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currently being addressed at the Federal level and that crew
size agreements have been, and absent legislative
interference, will continue to be, negotiated by
representatives of both rail management and labor who know and
understand the details of railroad operations including
various safety requirements and ramifications.
8. Prior Legislation :
SB 200 (O'Connell) of 1999: Died in the Assembly
SB 200 would have provided that a common carrier may run
freight or work trains only if it employs on that train at
least 2 persons, one of whom is a railroad trainman, as
defined. The bill would have also made violations of this
requirement a misdemeanor.
SUPPORT
Brotherhood of Locomotive Engineers & Trainmen, International
Brotherhood of Teamsters
California Labor Federation, AFL-CIO
California Public Utilities Commission (CPUC)
California Teamsters Public Affairs Council
United Transportation Union
OPPOSITION
BNSF Railway Company
California Short Line Railroad Association
Union Pacific Railroad Company
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