Rail regulation bill uses Norfolk Southern derailment as springboard to pass Pa. House

FILE - In this photo taken with a drone, portions of a Norfolk Southern freight train that derailed the previous night in East Palestine, Ohio, remain on fire at mid-day on Feb. 4, 2023. (AP Photo/Gene J. Puskar, File)AP

Four months after the train disaster in East Palestine, Ohio – less than a mile from the Pennsylvania border – the Pa. House on Monday voted in favor of final passage of a bill creating new state-level rail regulations.

"Extraordinary events bring about extraordinary action," said Rep. Rob Matzie, D-Beaver – the bill's prime sponsor alongside Rep. Jim Marshall, R-Beaver – and "the stakes are too high to wait any longer."

The bill would create several specific safety benchmarks for trains in Pennsylvania – such as a minimum two-man crew and a maximum train length of 8,500 feet – to be enforced by the state's Public Utility Commission, which is authorized to issue fines and refer cases to the state attorney general.

The bill also orders the PUC, in consultation with PennDOT, to develop standards for the reporting and tracking of hazardous materials on trains, as well for the use of wayside detectors – sensors along train tracks that are intended to warn of passing train cars that are overheating due to breakage, misalignment, or other problems that can cause derailment.

Under an amendment passed on the House floor, smaller operators would be exempt from the crew and wayside detector rules, which would apply only to the largest rail systems.

The bill would also put into law the right of union representatives to be involved in safety monitoring, which Matzie previously said is in response to reports that workers’ safety complaints are not being followed up by rail companies.

Elements of the bill have been proposed for several years, the sponsors said at a committee hearing last month. But the specific impetus for the current effort was the Feb. 3 Norfolk Southern train derailment in East Palestine. The incident spilled over 100,000 gallons of toxic chemicals and resulted in a burn-off that sent a plume of smoke over the Pennsylvania border, raising concerns about contamination.

While official testing of water and soil has not yet shown major problems, a state Senate panel was told by an expert last month that agencies need to expand the chemicals they’re testing for; Matzie pointed on Monday to a report from Cleveland's CBS affiliate saying more expansive private testing was showing contamination.

Questions have also been raised about Norfolk Southern ignoring detector alerts, although the company says its crews acted properly when detectors indicated problems before the East Palestine derailment.

While train accidents reported to federal authorities have risen slightly since 2017, Norfolk Southern's accident rate in particular has spiked much higher, according to a Politico analysis of Federal Railroad Administration data.

The PUC currently has rail inspectors – but as the department explained at a hearing in February, those inspectors act only under authority delegated to them by the Federal Railroad Administration, and their only enforcement power is to refer issues up to the FRA.

The PUC says this is the result of the 1970 federal Railroad Safety Act, which seeks to standardize rail regulations under the FRA's authority and which, under the federal government's Constitutional authority over interstate commerce, restricts states’ abilities to act outside of this.

But Matzie and other advocates for tighter regulations believe the PUC has more power than it thinks it does, pointing to the exception language in the federal law as well as a 1993 court precedent which determined that federal rail law must "substantially subsume" the topic of state law in order for it to be pre-empted.

Republicans had raised concerns about the pre-emption issue, and more broadly that the bill would raise costs for railroad commerce, with Rep. Dallas Kephart, R-Clearfield, describing the bill Monday as a "hidden tax on consumers."

The bill passed Monday on a vote of 141 to 62, heading to the state Senate.

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