Higher cost or higher safety? Legislators, railroads and KDOT face off on rail safety
Andrew Bahl, Topeka Capital-Journal
6 min read
State officials have faced stiff criticism from business groups and legislators over a plan that they believe will enhance rail safety in Kansas — but which opponents say could increase the cost of hauling goods through the state.
Earlier this year, the Kansas Department of Transportation announced it was moving forward with a requirement that freight trains in the state have a two-person crew, joining scores of other states across the country that have implemented similar requirements.
A high-profile train derailment in Ohio has pushed rail safety into the national consciousness, though that derailment had two crew members on board.
Supporters of a move to require a two person crew on Kansas freight trains say it increases safety. Critics believe it will drive up costs.
"Sometimes they are 2 miles long, carrying hazardous waste, and it requires a specific knowledge and training to operate those types of locomotives," said Emily Brown, a staff attorney for KDOT. "So having additional people in that cab, it is a safety consideration."
But Ohio might also be a blueprint for what might come next if Kansas moves forward with the regulation. In late June, a national trade group for railroads challenged a similar crew requirement in the Buckeye State, arguing states are blocked from regulating rail safety under federal law.
"There is no data," said Douglas Dalgleish, counsel for BNSF Railway. "All you hear is anecdotes and this and that. But if you're going to do something that has this profound of an economic and operational impact upon railroads, I think it is incumbent on the proponents of that to back it up and that hasn't happened here."
Kansas the latest state to consider crew requirements for freight trains
Crew sizes on American freight trains have gradually decreased since the industry's inception. The largest freight operators in Kansas, BNSF and Union Pacific, still require at least a two-person crew, however, in line with existing labor agreements that will extend for at least the next couple of years.
But labor unions and other observers have long predicted an increased reliance on automation in the freight industry. Companies say that automatic systems to prevent derailments or collisions are designed to supplement, rather than replace, physical crews.
As freight trains have gotten longer in the U.S. — and, increasingly, carry more hazardous materials — the push to require a two-person crew has also ramped up.
"We are not talking about a Tesla delivering a pizza and making a wrong turn on Main Street because the automation told it to go one way or another," said Ty Dragoo, state legislative director for the Kansas local of the International Association of Sheet Metal, Air, Rail, and Transportation Workers. "We are talking about hundreds of tons of nasty, nasty stuff going through your communities every single day … You need to have at least two engineers in a locomotive because these things fail."
At least 10 states have adopted similar requirements, either in state law or by agency action, including Colorado. But in Kansas the idea has had a more complicated history.
Gov. Laura Kelly's administration has proposed a similar requirement in the past but its allowability was rejected by former Attorney General Derek Schmidt, in part because the federal government had considered the idea and rejected it, sowing doubt whether states could take similar steps.
But current Attorney General Kris Kobach signed on to allow the regulation to proceed in 2023, setting the stage for the regulation to potentially take effect later this year.
Railroads say crew requirements could drive up costs
This didn't stop KDOT from getting a frosty reception from Republican lawmakers over the proposal, however.
Under state law, agencies must present regulatory changes before a joint legislative committee. While that panel of lawmakers cannot overturn a regulation, they do submit comments on the merits of an idea.
Railroads believe that there is not adequate evidence that requiring a two-person crew actually increases safety. Legislators echoed that sentiment, saying they were not swayed by KDOT's arguments.
"It sounds like a solution in search of a problem that you can't identify," said Rep. Patrick Penn, R-Wichita.
Moreover, rail operators say that if states are allowed to make their own requirements regarding rail safety, costs will rise and companies will gravitate toward hauling goods via truck.
Union Pacific, whose Topeka rail yard is pictured here, requires a two person crew currently under an ongoing deal with its labor union.
An economic impact statement conducted by KDOT as part of the rulemaking process noted there would be an annual cost of over $1.4 million to businesses.
But Laura McNichol, senior vice president and chief sustainability operator for Watco, a short-line railroad operator based in Pittsburg, said it would cost her company at least $4 million per year to hire more workers to comply with the regulation.
"When we think about what Kansas is proposing here, we are troubled by it," McNichol said. "We don't have the opportunity to pass those costs onto our customers based on the economics of short-line railroads."
Battle over rail safety likely in courts and Washington, D.C.
Legislators ultimately moved to formally urge KDOT to reverse course and discard the regulation. A public hearing on the matter is set for next week and some groups, notably the Kansas Democratic Party, are attempting to rally favorable public comments in support of the idea.
Not everyone agreed with the move from legislators to oppose the regulations. Sen. Oletha Faust-Goudeau, D-Wichita, pointed to examples from her own district where individuals had to crawl around trains blocking the tracks.
"We're talking about the dollars but I'm concerned about the people," Faust-Goudeau said.
The issue, however, may well be settled at a federal level or in the court system.
Last year, the Federal Railroad Administration resumed plans to require a two-man crew, though its version was somewhat looser than the one adopted by many states as it exempted "operations that do not pose significant safety risks to railroad employees, the public, or the environment."
And the legal challenge over Ohio's law may well dictate the ultimate outcomes, with a lawsuit from railroads likely if Kansas officials ultimately elect to enact the new regulations.
But the broader debate also shows that tensions over the regulatory process once again are at a boiling point, even though a proposed amendment to the Kansas Constitution that would have given the Legislature more power to overturn rules and regulations failed on the ballot last year.
Eric Stafford, a lobbyist for the Kansas Chamber, said he would be pushing legislators next year to consider a measure to require any regulation with more than $3 million in economic impact be subject to legislative aproval.
"Just because you think you can do something doesn't mean you should," he said.
