Two years ago, Democratic Gov. Laura Kelly’s administration proposed a rule that it believed would enhance rail safety in Kansas.
State transportation officials proposed requiring railroads operating in Kansas to have at least two crew members in the cab of the lead locomotive.
The proposal, halted by Attorney General Derek Schmidt’s office because of legal concerns, was intended to keep the current practice of two crew members on a train with the advent of technology that could allow trains to run autonomously.
The proposed rule is part of a national debate over train crew sizes in a new era of technology that has pitted the railroads against labor unions – including one supporting Kelly – over rail safety that is now playing out in courts and at the national level.
“This proposed regulation is a commonsense, necessary measure to protect our state’s railroad crew members and keep every community along the tracks safe,” Kelly said in a statement at the time the state rule was announced.
Kansas would have joined eight other states with similar rules on the books, including Colorado, Nevada, Illinois, Wisconsin and West Virginia.
The day the rule was announced in July 2020 was the last it’s been heard of publicly, relegated to the government backwaters of rulemaking where it was stopped by Attorney General Derek Schmidt, now the Republican nominee for governor.
Schmidt’s office denied approval of the rule in September 2020.
The attorney general said the rule was not approved because it was preempted by federal law and the state did not have the statutory authority to impose the regulation.
The attorney general relied partly on a 2018 state appeals court ruling that said the state could not regulate how long a train can block a railroad crossing because it’s preempted by federal law.
The Kelly administration disputed the attorney general’s ruling, and the two sides went back and forth on the issue for more than a year and a half before it ran out of gas, according to emails between the two agencies.
The governor’s administration argued that the U.S. 9th Circuit Court of Appeals ruled in February 2021 that states could impose crew staffing levels for safety.
The court ruled that a 2019 Trump administration order requiring only one-person crews was arbitrary and did not “implicitly preempt state safety rules.”
The court ruling came amid the back-and-forth between Schmidt’s office and the Kelly administration over getting the rule approved.
A spokesman for Schmidt said the 9th Circuit case was not decided at the time the regulation was initially disapproved.
Besides, attorney general spokesman John Milburn said decisions in the 9th Circuit are not binding in Kansas.
“Even if it were, that case did not directly address the legal issues that led to the regulation’s disapproval, and the agency still lacked state statutory authority to issue the regulation,” Milburn said in a statement.
Milburn blamed the governor for announcing the rule through the media before the regulation was submitted to the attorney general’s office for approval.
A spokesperson for Kelly said the attorney general stopped a rule that was intended to make Kansas safer.
“The attorney general is trying to point fingers, but the truth is that he blocked measures to protect the safety of our rail workers and Kansas communities,” Brianna Johnson said in an email.
The rule was advocated for by the International Association of Sheet Metal, Air, Rail and Transportation Workers, which supports Kelly in her reelection campaign.
Ty Dragoo, chair of the transportation workers union, accused Schmidt of being more willing to listen to the railroads than the union workers.
Dragoo said Schmidt’s office was “cloak and dagger” about the rule and wouldn’t communicate with the union.
Schmidt’s office said it met with the Kansas Railroad Association — at its request — to hear their concerns about the proposed regulation on Aug. 4, 2020.
The railroad association also submitted a written memo to the attorney general outlining its concerns that were discussed in the earlier meeting.
“No other groups requested a meeting or asked to provide written input during the review period,” Milburn said earlier this week.
But Dragoo provided an email that he sent Aug. 10, 2020, to Deputy Attorney General Athena Andaya with an attached memo providing information about the issue and expressed a willingness to answer any questions.
“It doesn’t take a rocket scientist to figure out that railroads have their hooks in Derek Schmidt,” Dragoo said.
When asked about the union’s email, Milburn said Andaya retired in 2020 and she was not available to answer questions about the issue.
Upon reviewing the complete file on Thursday, Milburn said the union memo was located and it appears it was reviewed contemporaneously with the railroad memo.
Milburn said the file indicates that attorneys reviewed the union memo, but said it was not tailored specifically to the proposed state regulation nor did it otherwise address legal issues particular to Kansas.
Kelly is now trying to get the rule implemented at the federal level, two years after President Donald Trump’s administration shut down an Obama administration proposal requiring two-person crew members in most locomotives.
The Trump administration said no regulation of train crew staffing was “necessary or appropriate for railroad operations to be conducted safely.”
The Trump administration also banned states from requiring railroads to have two-person crews, a ban that was later invalidated by the federal appeals court.
Last summer, President Joe Biden’s administration brought the rule back that was pulled two years ago and is now taking public comment.
Kelly recently submitted comments earlier this month to the Federal Railroad Administration supporting its proposed rule for two-person train crews.
The governor told the FRA that she had pushed for a similar rule at the state level, saying she thought it was needed to preserve safe rail operations in the state.
Kelly said there have been 225 train derailments in Kansas since 2018, including two in June — one involving 25 cars carrying hazardous materials near Bonner Springs.
Kelly said in her letter that having two-person train crews can be the “difference between life and death” as local emergency crews race to the scene of a derailment.
The issue isn’t simple, however.
The railroads don’t believe the rule is necessary since there’s onboard computers and trackside sensors — known as Positive Train Control — in place to stop trains and prevent collisions and derailments.
The railroad industry said the Biden administration wants to roll back the clock on train crew staffing without any safety justification.
Ian Jefferies, president and CEO of the Association of American Railroads, said the proposed rule puts “politics over sound, data-driven safety policy.”
“With the full deployment of Positive Train Control technology, there is no plausible safety justification for regulating the number of individuals physically located inside the cab of a locomotive,” Jefferies said last summer when the rule was proposed.
The railroads say technology and modern staffing models make freight railroads safer, more efficient and more productive.
Limiting railroad innovation would make it hard for railroads to invest in new safety technologies, adapt to changing customer needs and compete with commercial trucking, which is moving to autonomous operations, the industry said.
The labor unions say technology doesn’t always work and the train crews are often the first to respond to an incident where a train might need to be cut in two to allow emergency vehicles through a crossing.
They say the technology can’t perform the functions of an onboard conductor, and it cannot provide the benefits of two people working together on a locomotive.
Working together, conductors and engineers can pull cars carrying hazardous material away from other cars that have already derailed in emergency situations, they say.
“Positive Train Control is a safety overlay that is put in place to make sure that trains can stop in certain situations,” Dragoo said.
“There are still trains today that have Positive Train Control that are constantly failing — the computers chips and the technology is failing,” he said.
“There are many times where trains are traveling from A to B without that technology engaged because it’s not working,” he said.
Schmidt’s campaign manager C.J. Grover would not comment on whether the attorney general would support the two-person crew rule as a matter of principle.
Most trains run with two crew members, an engineer and a conductor. The engineer runs the train and the conductors, among other things, throw switches and inspect the brakes.
The rulemaking for two-person crews started as early as 2013 when 49 people were killed when an unattended freight train loaded with crude oil crashed into Canadian town.
Later in 2013, two trains collided in Casselton, N.D., causing 476,000 gallons of crude oil to explode.
When it withdrew the Obama rule in 2019, the Federal Railroad Administration said that safety programs and actions taken following those two crashes were “appropriate” for addressing safety in the aftermath of the incidents.
The FRA concluded then it could not “provide reliable or conclusive statistical data to
suggest whether one-person crew operations are generally safer or less safe than multiple person crew operations.”
The new Biden administration rule is intended to blend rail safety with innovation, Federal Railroad Administrator Amit Bose told a congressional committee in June.
“Historically, technological advances have enabled a gradual reduction in the number of train crew members,” Bose told a House committee.
“As technology continues to advance and automation is on the horizon, FRA intends this rule to serve as a tool to proactively address the potential safety impact of train operations with fewer than two crew members,” he said.
