Mr. COWAN. Thank you very much. [The following information was subsequently received for the record.] Hon. RUSSELL B. LONG, RAILWAY LABOR EXECUTIVES' ASSOCIATION, Chairman, Surface Transportation Subcommittee, Senate Committee on Commerce, Science, and Transportation, Washington, D.C. DEAR SENATOR LONG: While presenting testimony on March 24, 1980_to_the Surface Transportation Subcommittee concerning the reauthorization of the Federal Railroad Safety Act of 1970, Lawrence M. Mann, attorney for RLEA was questioned by Senator Larry Pressler as to rail labor's position concerning the certification of railroad workers. I would like to take this opportunity to supplement our response to that question. Rail labor is in favor of training of and minimum qualifications for FRA inspectors but it adamantly opposes the certification of railroad employees. We believe that rather than have the federal government become a licensing agent of those people who can work on the railroads, it is far preferable to leave questions of minimum employee qualifications to the collective bargaining process. Second, in Senator Long's March 14, 1980 invitation to testify before the Subcommittee, the Chairman requested rail labor's views on several specific issues. At the hearings we stated that we would supplement the hearing record on those points, which is the purpose of the following comments. DATA COLLECTION AND ANALYSIS In FRA's methodology of data collection and analysis of accident investigations, it is the railroad which makes the exclusive determination regarding causation of accidents, collisions and derailments. Human error is increasingly listed as a cause of train accidents. Rail labor favors a system whereby an opportunity is provided for the employee(s) cited for error to set forth company and/or rule violations which they contend played any contributing part in the accidents. In that way, a far more accurate picture of the total safety situation could be presented for purposes of data collection and analysis. FOCUS AND RELEVANCE OF RAILROAD RESEARCH AND DEVELOPMENT PROGRAMS Rail labor believes that the current FRA hazardous material research program should be expanded. There is a need for research to identify those hazardous materials which require additional safety countermeasures and to develop concepts for achieving that increased safety. In the recent HM-144 rulemaking, the Materials Transportation Bureau required thermal protection, head protection, and coupler vertical restraint system on certain railroad cars carrying certain commodities. The MTB specifically exempted ammonia and other "nonflamable compressed gases" from the thermal protection requirements on the grounds that at the time of the HM-144 rulemaking, there had been no instances of thermal ruptures involving those commodities. Since the HM-144 rulemaking, there has been at least one instance (Crestview, Florida, April 8, 1979), in which an ammonia car apparently thermally ruptured. Therefore, there is a need to determine which hazardous material cargoes are capable of experiencing thermal ruptures and which require thermal protection. There is also a need for development new concepts for head protection on exisitng hazardous material cars. On the large "jumbo" cars, it has been the practice to put heavy solid steel plates at the head ends. However, on many other existing tank cars, this solution would not be feasible because the underframe could not safely support this extra weight. With respect to the particular problem of radioactive spent fuel shipments, there is a need for additional testing and analysis to determine the vulnerability of that commodity to railroad accident conditions. The Department of Energy and Transportation have sponsored (and are sponsoring) programs to determine the vulnerability of spent fuel casks to railroad fires and impacts. Because of budgetary limitations, all of the testing has been with obsolute casks or small scale prototypes. There should be full scale testing of the actual casks that will be used to transport spent fuel in the railroad mode. In addition to looking at equipment modifications, FRA should investigate the feasibility of operational restrictions (e.g. train makeup, routing switching operations, loading/unloading practices) on hazardous material shipments. Although the primary emphasis of FRA's general program should be preventing hazardous material releases, it is not reasonable to expect that there will be a 100 percent reduction in hazardous material accidents. Rail labor believes there is a need for developing guidelines for reacting to railroad hazardous material spills. FRA has an ongoing study in this area which is scheduled to be completed in fiscal year 1983. This program needs to be expanded in scope and the time frame compressed. The FRA program should include testing and analysis to determine the atmospheric dispersion of hazardous material spills so that personnel can be evacuated when necessary and the vapor cloud can be neutralized. The FRA program should also address proper wreck clearance operations, including guidelines for safely transferring loading out of damaged cars and safely lifting wrecked cars. Rail labor also believes that FRA should investigate alarm systems and personnel protection for railroad emergency response personnel. Specifically, FRA should determine what alarm systems are needed to detect hazardous material releases and what personnel protection (e.g. radioactive film badges, gas masks, and fire resistant clothing) is needed. Many improvements in locomotives and locomotive cabs have been identified. A need exists to design and build a state of the art locomotive which will incorporate all available safety improvements. Such a locomotive will provide adequate protection to the locomotive crew in the event of a collision as well as have a design which will minimize injuries to motorists resulting from a grade crossing collision. Special emphasis needs to be placed on crew protection during hazardous material accidents. The state of the art locomotive must also provide a proper work environment which is both safe and will optimize engineer performance through improved manmachine interface. Engineers should be provided with necessary equipment in the event of an emergency situation. Grade crossing accidents continue to be by far the leading cause of railroad fatalities. Additional research is needed in the grade crossing area to address these accidents. For example, rail labor supports studies concerning warning time at grade crossings, improved ability to see oncoming trains, more effective flashing lights, and prohibitions against school buses and hazardous material trucks from certain dangerous crossings when crossings with gates or grade separations are readily available. Wheel failures are the leading cause of railroad accidents attributed to mechanical and electrical failures. There is a critical need to develop wheels that are less prone to failure and techniques that will detect wheels that are about to fail. In order to accomplish these objectives, it is first necessary to understand the mechanisms that lead to wheel failure. Accordingly, FRA should test wheels, to destruction, under the braking conditions encountered in rail service. Research is also needed to improve the braking systems and procedures on passenger and freight trains. The existing brake systems have excessive stopping distances and often result in excessive in-train forces that lead to derailments. The existing FRA research efforts in braking systems need to be expanded in scope so that signficant improvements to the braking system can be made in the near future. THE EFFECTIVENESS OF FEDERAL SAFETY REGULATION As we indicated in the testimony before the Subcommittee, accidents, injuries and deaths are at a totally unacceptable level. The percentage of safety appliances found defective by FRA inspectors is consistently increasing. The FRA's revisions of its freight car safety standards are, in rail labor's opinion, the first step toward making rail safety enforcement virtually meaningless. (Among other things, those regulations eliminated most periodic inspections; that is, the requirement that freight cars be inspected for specified safety defects on a periodic basis.) In light of this, the forthcoming proposed revisions of FRA's other major safety standards also cause great concern to rail labor. The federal regulations could, if properly enforced, have a significant impact on rail safety. The most critical need, of course, is for FRA to hire sufficient inspectors to enforce existing rules adequately. Rail labor has consistently urged that FRA request appropriations for all authorized inspectors, and that FRA hire qualified inspectors to the full extent authorized. HAZARDOUS MATERIALS ACTIVITIES AND THE PROGRESS OF THE RAILROAD GRADE CROSSING ACCIDENT PREVENTION PROGRAM Rail labor respectfully directs the Subcommittee's attention to the comments presented on these matters in Point No. 2 of this supplemental testimony. EMPLOYEE SAFETY In addition to the remarks presented in Point No. 2 of this supplemental testimony, rail labor cannot overemphasize the importance to the issue of employee safety of adequate enforcement of federal safety regulations, including initiation of legal action where appropriate. In its testimony before the Subcommittee, rail labor indicated where failure of enforcement undeniably leads to accidents, derailments and death, not only of railroad employees, but of the public at large. Furthermore, the average age of the railroad employee is significantly lower than in past years. The younger employee is likely to be less experienced than his older counterpart, and thus not as well equipped to deal with emergency situations. Thus rail labor supports supervised, periodic training programs which insure relevant training for the skilled railroad crafts. I thank you for the opportunity to comment further, and I hope that this information will aid the Subcommittee. Very truly yours, J. R. SNYDER, Chairman, Safety Committee. Hon. RUSSELL LONG, RAILWAY LABOR EXECUTIVES' ASSOCIATION, Chairman, Surface Transportation Subcommittee, Committee on Communications, Science, and Transportation, U.S. Senate, Washington, D.C. DEAR SENATOR LONG: This is in response to your letter of April 10, 1980 which enclosed several questions relating to areas not fully covered by the Railway Labor Executives' Association's testimony at the March 24, 1980 hearing on the authorization for rail safety activities. This letter addresses the Subcommittee's questions in seriatim. Question 1. You have suggested a legislative provision which would provide an employee or his representative with the right to go into court to force the Federal Railroad Administration to take action when it has not. At what stage would such a right attach-for example, after the Federal Railroad Administration had investigated but decided not the proceed further? How does this private cause of action compare with those provided elsewhere in the law? For the record, please provide specific examples, in statutory language, of such other private causes of action. Has this right been exercised successfully in other areas to bring about effective enforcement? Answer 1. Rail labor supports a legislative provision which would provide the right to an employee or his representative to file suit a) against any person (including a corporation or the United States) in order to enjoin a violation of the Federal Railroad Safety Act of 1970 or an implementing regulation and/or b) against the Administrator of the Federal Railroad Administration to compel him to enforce that Act. Such an action should be allowed upon the expiration of 60 days after the plaintiff has given notice of such violation to the Administrator and to the person who was alleged to have committed the violation. Additionally, if the Administrator or Attorney General has commenced a civil action after such notice is given, the person giving such notice should be allowed to intervene as a matter of right. Rail labor does not favor a provision allowing the right to attach only after the FRA has investigated but decided not to proceed further for the reason that the FRA could then simply indefinitely delay enforcement decisons in order to forestall litigation. The statutory private right of action is commonly found in the health and safety fields in, for example, the Occupational Safety and Health Act (29 U.S.C. § 662(d)); Clean Air Act (42 U.S.C. § 7604); Clean Water Act (33 U.S.C. § 1365); Toxic Substance Control Act (15 U.S.C. § 2619); Safe Drinking Water Act (42 U.S.C. § 300(j)(8); Noise Control Act (42 U.S.C. § 4911); and Surface Mining Control and Reclamation Act (30 U.S.C. § 1270). Copies of the applicable sections of those statutes have been enclosed for the Subcommittee's convenience. Question 2. You support a provision which would allow an employee to refuse to work if he finds conditions unsafe. Some are concerned about the potential for the employees to take undue advantage of such a provision. What is your response to this argument? Are there similar provisions under other employee protection laws? To what extent is this problem dealt with in labor agreements? Answer 2. Rail safety is not collectively bargained and thus the issue of employee refusal to work under unsafe conditions is not dealt with in labor agreements. Rail safety strongly supports a statutory provision that would offer this protection. The most notable employee protection law where a similar provision is found is the Occupational Safety and Health Act, the implementing regulations of which were recently upheld by the Supreme Court in Whirlpool Corporation v. Ray Marshall, 48 L.W. 4189, (February 26, 1980). The regulations at 29 C.F.R. § 1977.12, protect against the possibility of employees' taking undue advantage of such a provision by requiring that the employee who refuses to expose himself to a dangerous condition must do so in good faith and with no reasonable alternatives. Furthermore, the condition causing the employee's apprehension must be of such a nature that a reasonable person under the circumstances then confronting the employee would conclude that there is a real danger of death or serious injury and there is insufficient time, due to the urgency of the situation, to eliminate the danger by resorting to regular statutory enforcement channels. I note that those provisions are regulatory; the OSH Act A states only that "no person shall discharge or in any manner discriminate against any employee * because of the exercise by such employee on behalf of himself or other of any right afforded by this chapter." Question 3. What are your views regarding state safety programs? Are they an effective supplement to federal inspections? How do you respond to the proposal to grant states enforcement authority to issue orders and fines? Answer 3. Rail labor believes that state safety programs are an effective supplement authority to issue injunctions on the same basis as does the Federal Railroad Administration. The 90 day waiting period currently in the Act is too long an interval to have to wait before proceeding to enforcement when an emergency situation exists. Question 4. In your testimony before the Committee, you stated that the Federal Railroad Administration safety regulations are on their way to becoming "meaningless." Would you please comment further, citing egregious examples of regulations which you find unacceptable and the reasons why? Answer 4. Recent FRA regulations appear to be totally at odds with the achievement of railroad safety. For example, with respect to freight cars, FRA has often stated that periodic inspections (detailed inspections of freight cars) are of paramount importance to railroad safety. Although FRA's proposal had expressed a belief that the periodic inspection is essential to assure that each freight car in the national fleet is thoroughly examined at reasonable intervals for safety defects that are difficult if not impossible to discern and correct in the railroad operating environment, in its final rulemaking of December 31, 1979, (41 Fed. Reg. 186185), FRA revoked that requirement completely. Second, neither the Freight Car Safety Standards nor the March 31, 1980 regulations regarding locomotives have a requirement that the people designated by the railroads to perform certain inspections have any experience or qualifications. Unquestionably, inspections performed by unqualified people are of exceedingly limited value. Third, FRA has taken no action toward protecting employees from harassment notwithstanding mounting evidence that harassment and intimidation of employees for, among other things, reporting safety violations, are widespread in the industry. Fourth, FRA has taken the position in its locomotive rulemaking of March 31, 1980 (45 Fed. Reg. 21092), that penalties associated with individual violations of the rule will be combined up to a total of $2,500.00, notwithstanding the fact that § 9 of the Locomotive Inspection Act, as amended, provides that penalties for violations of rules, regulations, or orders made under it shall be not less than $250.00 and not more than $2,500.00 for each and every such violation, (emphasis added0. With the small potential maximum liability FRA intends to impose on offending railroads, these regulations incorporate a built-in disincentive to remedy any multiple violations for the simple reason that the cost involved in corrections of defective conditions would truly exceed the carrier's maximum liability. Fifth, the other regulations pending for revision, including track, signal systems and operating practices, all contain similar provisions that indicate failure of the rail safety enforcement effort. Question 5. You have indicated your opposition to certification programs. However, you do support "periodic training programs." What mechanism can be employed to insure that employees take advantage of these "periodic training programs?" Answer 5. With respect to the Subcommittee's concern whether employees will avail themselves of periodic training programs, rail labor believes that there would be no problem if the programs were conducted during working hours and not during the employees' hours of rest. Secondly, if there were more federally sponsored programs which the railroads were required by regulation to make available, the employees would be likely to take advantage of the opportunities. Question 6. The National Transportation Safety Board has cited railroad employee alcoholism as a problem which must be examined by the Federal Railroad Administration. What is your response to this comment? What solutions would you propose in this area? Answer 6. The railroad industry has been in the forefront of industries studying employee alcoholism. Rail labor does see a problem in that there currently is insufficient data regarding what relationship drinking and drug taking bear to the causes of railroad accidents. At least partly in light of the fact that the Federal Accident Reports Act's regulations do not provide for documentation of this, there is a necessity for further study. Rail labor urges the Subcommittee to authorize funds for study and analysis of this problem. Again, rail labor appreciates the opportunity to assist the Subcommittee in these very important matters of rail safety. Sincerely yours, J. R. SNYDER, Chairman, Safety Committee. Senator PRESSLER. Thank you very much for your work and testimony. We look forward to hearing from you. Mr. Keith Bissell, commissioner, Tennessee Public Commission, vice chairman, National Association of Regulatory Commissioners, Committee on Railroads here in Washington, D.C. If you will summarize your testimony in 5 minutes, we will allow some time for a few questions. STATEMENT OF KEITH BISSELL, COMMISSIONER, TENNESSEE PUBLIC SERVICE COMMISSION, VICE CHAIRMAN, NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS, COMMITTEE ON RAILROADS; ACCOMPANIED BY PAMELA SOMERS Mr. BISSELL. I think I can do that. I am Keith Bissell. With me is Pamela Somers, Director of Congressional Relations for the National Association of Regulatory Utility Commissioners. It's a pleasure to have the opportunity to appear before you to discuss a matter of utmost importance to all of us, railroad safety. As vice chairman of the Railroad Committee, I would like to offer you today testimony supporting the authorization of the FRA recommended amount for the next two fiscal years to be distributed to states for railroad safety programs of the Federal Railroad Administration, and supporting an amendment to the Federal Safety Act. The amendment sponsored by the Tennessee delegation in the House and Senate, and also by Senator Robert Byrd, would improve enforcement of federal railroad safety standards by granting states and state regulatory agencies the authority to impose penalties and to seek immediate injunctive relief in U.S. District Court when railroad safety laws have been violated. In 1970, the Federal Railroad Safety Act was adopted in an effort to standardize rail safety regulations and enforcement. The movement for the adoption of this legislation was in response to a growing number of rail accidents throughout the nation, and except in limited circumstances, the law preempted the states' regulatory authority for safety. In Tennessee and many other states, the law did not have its intended effect. Instead, our statistics show a worsening of conditions since the implementation of the law in 1974 and a dramatic increase in the number of accidents and cost of those accidents to railroads. Our railroad division recently completed an analysis of the statistics related to rail accidents in Tennessee during the last ten years. The figures show that during the period 1970 to 1974, when the responsibility for railroad safety rested with the Public Service |