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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?
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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.
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
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
Commission, there were 89 percent fewer derailments than during the 1975 to 1979 period when the Federal Government held the majority of that responsibility. The percentage of increase in derailments for the 1975-1979 period would have been significantly larger had it not been for a comprehensive inspection of all tracks in the State of Tennessee, exemplified by the over 5000 safety violations cited by the Commission in 1978.
According to our statistics, there was a 34 percent decrease in derailments in 1979, resulting to a large extent from the attention focused on specific safety problems by our inspection and report. We feel this decrease in derailments following the comprehensive study by the Commission in 1978 is a clear indication that the enforcement of rail safety regulations at the state level can be much more successful than the present federal program in reducing the number of rail accidents which occurred in Tennessee. If we were able to reduce the number of accidents by 34 percent by inspecting the tracks and pointing out safety violations, just think how much more we could accomplish if we once again had the authority to ensure that all violations were corrected. Unfortunately, five years of the Federal Railroad Safety Program have allowed the tracks in Tennessee to deteriorate to the point that the safety of our citizens is in serious jeopardy. We now are experiencing derailments almost daily and every derailment is a potential disaster.
The conclusion that we have reached, one which is supported by our congressional delegation, is that the Federal Railroad Safety Program is simply not working in Tennessee. We believe that it is time for Congress to return to the states more substantial responsibility for the enforcement of Federal Safety Regulations. Other states have obviously had similar safety problems since the Federal Railroad Safety Act was implemented, as this position is supported by the Southeastern Association of Railroad Utilities Commissions, NARUC, and Conference of State Transportation Specialists, all of which unanimously adopted resolutions favoring the proposed amendment at their most recent meetings.
The bill I am speaking in support of today S. 934, would enable state regulatory agencies to assess civil penalties and enjoin safety violations without waiting ninety days for the Department of Transportation to take some action. The one thing we are concerned about both at the state and federal level is the safety of the lives and property of citizens.
As a member of the Tennessee General Assembly for eight years, I learned that compromise is part of the legislative process. But I don't think we can compromise on the question of safety. I feel it is imperative that the states have the authority to seek injunctive relief in federal court in situations where a safety violation poses a threat to the safety of our citizens without having to wait 90 days for the FRA to act under present law.
That concludes my summarization, Mr. Chairman. I would be delighted to answer any questions that you might have.
Senator PRESSLER. You have included a chart showing the states which are participating in state safety programs. What impact is there on the effectiveness of state programs if the state has full
certification or an agreement? Are there any exemplary state programs? Have any states dropped out of the program?
Perhaps to answer fully, you will submit something for the record.
MS. SOMERS. Yes, I would appreciate that opportunity. I don't have the statistics with me.
[The following information was subsequently received for the record:]
The three levels of State participation available under the program (full certification, certification, and agreement) represent the degree of State involvement. Fully certified States have the maximum number of inspectors as allocated by the regulations (the allocation levels established in the regulations are determined by track mileage in a State). These inspectors are responsible for routine inspections without help from FRA, although the FRA is not precluded or prevented from stepping in. At the other end of the range, the States participating under agreement either are just starting out, don't have a qualified inspector, or don't want full involvement. In such situations the FRA in theory provides a federal presence to supplement the level of inspection. Of course the supplementation is dependent upon FRA's own manpower resources. The certified States are in the developing stage and are expressing an intent to be fully certified within three years.
Oregon, Washington, Alabama, Illinois and Pennsylvania are exemplary State programs and as far as we are aware, no States have dropped out of the program. Senator PRESSLER. Good. To what extent are the States involved in monitoring of hazardous materials transportation? Is their authority adequate?
MS. SOMERS. I would also like to submit that for the record. Senator PRESSLER. You are welcome to do that.
[The following information was subsequently received for the record:]
We do not have the information concerning State involvement in monitoring the transportation of hazardous materials, however, the information can be supplied by FRA's Office of Hazardous Materials Safety, Division Chief William F. Black.
Concerning the adequacy of State authority over the hazardous materials transportation, we believe it would strengthened if the States were authorized to participate in investigative activities in connection with all Federal rail safety laws and regulations, which would include the Hazardous Materials Transportation Act.
To accomplish the inclusion of the Hazardous Materials Transportation Act under State enforcement, NARUC supports the following amendment to be added to the end of Section 206 of the Federal Railroad Safety Act of 1970 as a new subsection: "(g) Notwithstanding any other provision of this title or any other law, a State agency may also participate, in the manner set forth in this section, in carrying out investigative and surveillance activities in connection with railroad safety laws and regulations in effect on the date of enactment of this title or enacted or adopted after such date."
Senator PRESSLER. Those are the questions I have. I want to thank you very much for your help in being here. We look forward to hearing more from you.
I believe that is our last witness. We want to thank you and thank the witnesses who have been here this morning.
[The statement follows:]
STATEMENT OF THE NATIONAL ASSOCIATION OF REGULATORY UTILITY
Mr. Chairman and members of the subcommittee, my name is Keith Bissell and I am Vice Chairman of the Committee on Railroads of the National Association of Regulatory Utility Commissioners, commonly known as the "NARUC". I am also a Commissioner with the Tennessee Public Service Commission. Accompanying me today are Paul Rodgers, NARUC Administrative Director and General Counsel, and Pamela E. Somers, NARUC Director of Congressional Relations.