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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