New Class I railroad safety mandate may get challenged

A new rule requiring the largest U.S. railroads to file safety plans with federal regulators may get challenged over concerns for the legal rights of railroad accident victims, a rail labor attorney has told FreightWaves.

The rule, scheduled to be published in the Federal Register on Tuesday, requires that the nation’s seven Class I railroads file a Risk Reduction Program (RRP) with the Federal Railroad Administration (FRA) starting in the second half of 2021.

More than 12 years in the making, the requirement is aimed at reducing accidents involving both railroad workers and the general public and “will affect almost all facets of a railroad’s operations,” according to the FRA.

The RRPs are not prescriptive, however, and allow the railroads to tailor them to their specific operations. “Each railroad shall implement its RRP under a written RRP plan that FRA has reviewed and approved,” the FRA asserts. “Each railroad shall conduct an annual internal assessment of its RRP, and FRA will audit a railroad’s RRP processes and procedures.”

The FRA also points out that an RRP can only be successful if a railroad conducts a systematic assessment of its own hazards and risks. “A railroad may be reluctant to reveal such hazards and risks if there is the possibility that such information may be used against it in a court proceeding for damages.” Information a railroad compiles or collects to plan or evaluate an RRP is therefore “protected from discovery, admissibility into evidence or use for other purposes in a proceeding for damages involving personal injury, wrongful death or property damage.”

The rule also preempts state discovery rules and sunshine laws that could be used to require protected information from being disclosed.

Those protections have been a major concern for railroad employees, according to Larry Mann, who represents rail employees within the International Association of Sheet Metal, Air, Rail and Transportation Workers union and has been working on the issue since 2008. Mann pointed out that while it may cost each of the railroads less than $1 million per year to comply with the rule, the protection provisions will save them many times that in potential legal battles.

Latest weekly U.S. railroad carloads. Source: SONAR

“Railroads also don’t have to disclose how they arrived at their RRP strategy,” Mann told FreightWaves. “In developing their plan, they’re required to consult with the railroad workers, but they don’t have to accept what the railroad workers propose to help mitigate risks.”

Mann said that a decades-old statute that he helped draft requires that the FRA conclude a proposed rulemaking within a year – which he said would give him the legal basis for challenging the rule’s railroad protection provisions. “I will be consulting with the union, and we may be doing that,” he said.

The FRA received roughly 80 comments on the rule, which opened as a proposed rulemaking in 2015 after being mandated by Congress in 2008. “Generally, all commenters were in favor of RRP,” the agency stated. “While the comments contained varying suggestions on the structure and breadth of an RRP, most commenters agreed a properly implemented RRP would increase the safety of railroad operations.”

It noted that some suggested that the rule should require that railroads address “high-hazard flammable trains” and routing of hazardous materials, with one commenter asserting that rule should ban the transportation of Bakken crude oil.

The agency said it shared those concerns, pointing to actions taken by U.S. Department of Transportation “to reduce the risk to public safety and the environment posed by the movement of crude oil and other energy products by rail.”