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department of transportation
Two Years Later, Biden Has Yet to Appoint Key Safety Regulator at DOT
Despite all of the media attention on the horrible derailment in East Palestine, Ohio there has been little attention on the leaderless agency tasked with preventing such disasters.
Apr 08, 2023
More than halfway through President Biden’s term, there remain numerous critical appointed positions across the executive branch that remain empty. My colleagues have written extensively about the scope of this confirmation crisis. Some notable remaining vacancies include a seat on the Federal Communications Commission, around two dozen US Attorneys, and a seat on the National Transportation Safety Board. While much of this is due to obstruction by Senate Republicans, the importance of advancing good nominees remains. The fixes to the procedural delays are beyond Biden’s control (though not necessarily beyond Senate Majority Leader Chuck Schumer’s). But fighting to get the right people into positions of authority is still a top priority. As the mantra goes: personnel is policy.
But there is one critical, if low-profile, position that has not had a nominee at all: administrator of the Pipeline and Hazardous Materials Administration (PHMSA). Interestingly, despite all of the media attention on the horrible February derailment of a Norfolk Southern train in East Palestine, OH — including increased coverage of the response effort from the National Transportation Safety Board (NTSB), the Environmental Protection Agency (EPA), and the Department of Transportation (DOT) — there has been little attention on PHMSA itself.
PHMSA is an administration within DOT and is directly responsible for regulating dangerous trains. The weakened rule around high-hazard flammable trains is the work of Trump’s PHMSA. New rules addressing those shortcomings will also fall on its plate. And PHMSA’s authority extends well beyond just those rules, as it is responsible for regulating the safety (as its name implies) of pipelines and a litany of other transportation issues around moving dangerous materials. This includes flammable fuels like oil, natural gas, and coal, as well as radioactive substances and dangerous chemicals such as ammonium nitrate-based fertilizer. It’s a small and obscure agency, but undoubtedly a very important one.
The fact that such an important post as the PHMSA administrator has been purposefully left vacant is telling. It shows a lack of recognition around the post’s seriousness. And while the blame ultimately goes all the way to the White House, we would be remiss to absolve Secretary Pete Buttigieg. Presidents are famously busy and rely on input from their cabinet to determine what personnel decisions need to be prioritized. This is especially the case with technical offices, where the President depends on the subject matter expertise of their cabinet secretaries.
Additionally, President Biden, by not naming a nominee, has entrusted Buttigieg with deciding leadership at PHMSA. Unlike other administrations within DOT, the deputy administrator of PHMSA is appointed by the Secretary of Transportation without any need for presidential consultation or approval.
Tristan Brown, PHMSA’s deputy administrator, was handpicked by Buttigieg. That means that even more than is the case with other DOT administrations, the successes and failures of PHMSA ultimately go back to Buttigieg. As an aside, entrusting the deputy administrator with the full workload of the administrator here is a departure from Secretary Buttigieg’s handling of a similar vacancy at the FAA, where the deputy was bypassed for acting administrator, despite federal statute stating he should have gotten the job. PHMSA has no such explicit statutory language for its deputy. Also unlike PHMSA, the Transportation Secretary does not appoint the deputy FAA administrator — the President does.
While there have been encouraging signs lately of Buttigieg leaning more into his role of a regulator, including blocking the proposed Spirit-JetBlue merger, he still has a lot of work to do. Seeing Buttigieg talk about the rail industry obfuscating regulation and publicly pressuring airlines to get rid of junk fees shows he can take on the corporations he oversees. But for two years now, he has spent much of his term as an administration spokesperson on TV while allowing critical DOT business, like banning those junk fees, recovering billions of dollars owed to consumers, and improving rail brake regulations, to slip through the cracks.
Buttigieg is good with the media, including Fox News, and that has value to the administration, but the technocratic processes he oversees cannot come at the expense of a good media hit. The post he signed up for is a notoriously low profile one, partly because of how down in the weeds it can get. It’s fine for Buttigieg to have a higher media presence, but he cannot choose cameras over his unique legal obligations to regulate avaricious transportation companies.
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Rail Workers Warn Safety Bill Loopholes Are Big Enough to 'Run a Freight Train Through'
"If the language is not precise, the Class 1 railroads will avoid the scope of the law without violating the law, yet again putting the safety of our members and American communities into harm's way," said one union leader.
Mar 03, 2023
Amid heightened national focus on railway safety in the wake of the East Palestine, Ohio disaster and other recent accidents, one railroad workers' union warned Friday that, while welcome, a bipartisan rail safety bill has "loopholes big enough to operate a 7,000-foot train through."
The Railway Safety Act of 2023—introduced earlier this week by Sens. Sherrod Brown (D-Ohio), J.D. Vance (R-Ohio), Bob Casey (D-Pa.), Marco Rubio (R-Fla.), John Fetterman (D-Pa.), and Josh Hawley (R-Mo.)—is meant to "prevent future train disasters like the derailment that devastated East Palestine."
The legislation would impose limits on freight train lengths—which in some cases currently exceed three miles. The measure was introduced a day after Democratic U.S. Reps. Ro Khanna (D-Calif.) and Chris Deluzio (D-Pa.) put forth a bill that would require the U.S. Department of Transportation (DOT) to impose stricter regulations on trains carrying hazardous materials.
"We welcome greater federal oversight and a crackdown on railroads that seem all too willing to trade safety for higher profits," Eddie Hall, national president of the Brotherhood of Locomotive Engineers and Trainmen (BLET), said in a statement.
\u201cWith loopholes big enough to operate a 7,000\u2019 train through, this legislation essentially codifies a path to single person crews on many if not a majority of trains.\u201d— Railroad Workers United \u270a (@Railroad Workers United \u270a) 1677874220
While BLET appreciates that Brown's bill includes language stipulating that "no freight train may be operated without a two-person crew consisting of at least one appropriately qualified and certified conductor and one appropriately qualified and certified locomotive engineer," the union warned of "significant" exceptions in the proposal. For example, the bill as currently written would only apply to operations on long-distance freight trains.
BLET said it "will seek changes to the wording of the two-person crew language to tighten the loopholes."
"If the language is not precise, the Class 1 railroads will avoid the scope of the law without violating the law, yet again putting the safety of our members and American communities into harm's way," Hall argued. "You can run a freight train through the loopholes."
In 2015, the Pipeline and Hazardous Materials Safety Administration and the Federal Railroad Administration finalized a rule requiring the installation of electronically controlled pneumatic (ECP) braking systems on trains carrying hazardous materials.
Corporate lobbyists subsequently pressed the Obama administration to water down the rule, which was repealed entirely during the Trump administration's regulatory rollback spree.
\u201cThe proposed amendments are opposed by 5 major rail unions:\n\n@BLET (a member of @Teamsters)\n\nBrotherhood Railway Carmen Division (BRC/TCU/IAM) - a division of Transportation Communications Union (@TCUnionHQ)\n\n@smartunionworks \n\n(Others listed are not on Twitter)\u201d— Salem Snow (@Salem Snow) 1677870953
Current U.S. Transportation Secretary Pete Buttigieg has not made reinstating the ECP rule a priority. Instead, DOT regulators are considering a proposal backed by the Association of American Railroads, an industry lobby group, that would reduce brake testing. Five major rail unions including BLET strongly oppose the proposal.
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To Prevent More 'Catastrophic Derailments,' Rail Workers Outline Plan for Immediate Reforms
"We demand that the railroad be run safely, efficiently, and professionally, and not as some 'cash cow' for Wall Street investors and billionaires," said one union leader. "Much of what is wrong with the rail industry today can be fixed easily and quickly."
Feb 24, 2023
Three weeks after the lives of East Palestine, Ohio residents were upended by a fiery wreck involving a Norfolk Southern-owned train overloaded with hazardous materials, rail union leaders on Friday implored federal regulators and lawmakers to "focus on the primary reasons for the derailment and take immediate action to prevent future disasters."
In a statement, Railroad Workers United (RWU) pointed to the National Transportation Safety Board's (NTSB) newly published preliminary report on the February 3 crash and subsequent burnoff of vinyl chloride and other carcinogenic chemicals, which suggests that an overheated wheel bearing likely caused the train to derail. The inter-union alliance of rail workers also cited NTSB Chair Jennifer Homendy, who said Thursday at a press conference: "This was 100% preventable. We call things accidents—there is no accident. Every single event that we investigate is preventable."
RWU, which has previously highlighted how industry-led deregulation and Wall Street-backed policies such as "precision-scheduled railroading" have made the U.S. rail system more dangerous, said Friday that "Class 1 freight rail carriers, including Norfolk Southern, have prioritized profits over safety, cutting maintenance, equipment inspections, and personnel in all crafts while increasing the average train size to three miles or more."
In the words of RWU co-chair Gabe Christenson: "Railroad workers experience firsthand every day the dangers inherent in this style of railroading. It has impacted their safety and health, state of mind, and lives on and off the job."
"Limits on train lengths and weights are necessary to prevent catastrophic derailments."
Jason Doering, general secretary of RWU, echoed Christenson's message, saying: "Every day we go to work, we have serious concerns about preventing accidents like the one that occurred in Ohio. As locomotive engineers, conductors, signal maintainers, car inspectors, track workers, dispatchers, machinists, and electricians, we experience the reality that our jobs are becoming increasingly dangerous due to insufficient staffing, inadequate maintenance, and a lack of oversight and inspection."
"We recognize," Doering added, "that limits on train lengths and weights are necessary to prevent catastrophic derailments."
One week ago, RWU made the case for nationalization, arguing that the U.S. "can no longer afford private ownership of the railroads; the general welfare demands that they be brought under public ownership."
In the absence of such sweeping transformation, which remains far-off given the current state of the beleaguered U.S. labor movement, the alliance on Friday demanded that federal agencies and Congress move quickly to "rein in" Norfolk Southern and other profit-maximizing rail corporations that have fought regulations, laid off workers, and purchased billions of dollars in stock rather than investing in employees and safety upgrades.
Specifically, RWU called on regulators and lawmakers to:
- Ensure sufficient staffing to do the job properly, efficiently, and safely, with all trains operating with a minimum of a two-person crew;
- Cap train length and weight at a reasonable level to mitigate the increased likelihood of breakdowns, train separations, and derailments;
- Implement adequate and proper maintenance and inspections of locomotives and rail cars, tracks and signals, wayside detectors, and other infrastructure; and
- Standardize ample training and time off without the harassment of draconian attendance policies.
Of these measures, only a proposed rule to require two-person crews—described by RWU as loophole-ridden—was included in the blueprint the U.S. Department of Transportation (DOT) unveiled Tuesday to hold rail companies accountable and protect the well-being of workers and fenceline communities.
The DOT also encouraged rail carriers to voluntarily provide sick leave. Norfolk Southern—facing intense scrutiny and backlash amid the ongoing East Palestine disaster—agreed Wednesday to provide up to a week of paid sick leave per year to roughly 3,000 track maintenance workers.
But because the Biden administration and Congress recently imposed a contract without paid sick leave on rail workers who were threatening to strike, the vast majority still lack this basic lifesaving benefit, as do millions of private sector workers in other industries who are also awaiting legislation to address the issue.
Characterizing the DOT's plan as inadequate, RWU said Tuesday that "rank-and-file railroad workers can diagnose and fix the problems" and urged U.S. Transportation Secretary Pete Buttigieg to enact "some of our solutions."
RWU treasurer Hugh Sawyer reiterated that call on Friday.
"We demand that the railroad be run safely, efficiently, and professionally, and not as some 'cash cow' for Wall Street investors and billionaires," said Sawyer. "Much of what is wrong with the rail industry today can be fixed easily and quickly by acting on what is outlined above. We demand action NOW."
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