The Railway Safety Act

In February, a Norfolk Southern train carrying vinyl chloride and other hazardous materials burst into flames upon derailing in East Palestine, Ohio. Its contents were later released in a controlled burn-off, releasing a noxious plume of smoke over the small town. The pollution has persisted in the area, with residents reporting serious health concerns immediately after returning and now months later.

Norfolk Southern, other railroad companies, and the chemical industry had previously lobbied to water down 2015 hazmat rail safety legislation such that the derailed train in East Palestine was not subject to stricter tank car standards, speed limits, and disclosure requirements that apply to “high-hazard flammable trains.”

In the decade preceding the derailment, railroad companies spent nearly $200 billion enriching their shareholders through stock buybacks while spending just $140 billion on capital improvements. At the same time, rail companies paid their executives hundreds of millions of dollars, slashed their workforces by nearly 30 percent, and refused to provide their employees with regular schedules or paid sick days — even as they warned of growing safety concerns stemming from the policies.

The East Palestine derailment thrust these issues into the national spotlight, and in the wake of the disaster, lawmakers vowed to take on the railroad industry.

The most viable legislative effort that emerged is the Railway Safety Act, led by the two Ohio senators Vance and Sherrod Brown, a Democrat.

“Through this legislation, Congress has a real opportunity to ensure that what happened in East Palestine will never happen again,” Vance said in a statement when the bill was introduced. “We owe every American the peace of mind that their community is protected from a catastrophe of this kind.”

Their bill — which has a companion version in the House led by Democratic Pennsylvania representative Chris Deluzio — would address key railroad safety issues by requiring train crews of at least two people, expanding the definition of hazmat trains, and increasing maximum penalties for serious safety violations.

The bill is a remarkable effort to crack down on an industry that spends tens of millions on lobbying each year, has compromised safety and working conditions to enrich shareholders, and has evaded substantial regulation for decades.

But now a key safety provision aimed at preventing the release of chemicals during derailments is quietly being delayed — against the recommendations of federal rail regulators.

“A Lot of Support From Industry”

During the Railway Safety Act’s markup in early May, Vance and Cantwell introduced what is known as an “amendment in the nature of a substitute,” in which an entirely new bill replaces the existing text. The substitute passed with the support of all fourteen Democrats on the committee and just two Republicans — Vance and Senator Eric Schmitt of Missouri.

“This bill has changed a lot from what I introduced just a few short months ago,” said Vance in a statement. “We’ve made a number of concessions to the rail industry, a number of concessions to various interest groups, which is why we have so much bipartisan support in this body, but also we have a lot of support from industry.”

Compared to the previous version, the amended bill bolsters training requirements and funding for first responders and removes a requirement that the Transportation Secretary set length and weight limits for hazmat trains.

But one substantial change to the bill did not appear in the senators’ press releases touting the committee vote. According to a Lever review of the text, the amended version delays a requirement that certain hazardous materials be shipped in thicker, safer tank cars by up to three and a half years. The move came as lobbyists were calling for the postponement.

The provision in question would require a tank car design from the 1960s — DOT-111, which is prone to puncturing and releasing its contents during derailments — to be upgraded to a more recent design, the DOT-117 car.

The enhanced safety classification was created just under a decade ago in the wake of the Lac-Mégantic crude oil train derailment in Quebec, which left forty-seven people dead.

In 2015, the Department of Transportation finalized a rule for hazmat trains that required the older tank cars to be retrofitted or replaced with the improved design. That rule would have required all hazardous materials to be carried in the upgraded tanks by May 2025, with a faster timeline for petroleum and some flammable liquids. “[We] denied requests from industry representatives to loosen the final rule as it related to the phaseout schedule,” the agency said in March.

In response to the hazmat rule, congressional Republicans amended the phaseout schedule in a provision slipped into the 2015 omnibus transportation bill, which President Barack Obama signed. The new phaseout schedule gave shippers until 2029 to upgrade their tank cars for some hazardous materials.

But in the wake of the East Palestine derailment, federal regulators called for a faster phaseout schedule.

“The social and environmental costs of delaying a shift to the DOT-117 specification tank car — a car which has clearly demonstrated its superior performance in accident scenarios — should be paramount,” said the Department of Transportation in a nonbinding safety advisory issued in March, calling on shippers to immediately start using the safer tank cars. “Had all of the breached DOT-111 tank cars been DOT-117s, the outcome and consequences may have been different for the railroad and the East Palestine community.”

Likewise, the National Transportation Safety Board (NTSB), an independent agency tasked with investigating transportation accidents and making safety recommendations, has been calling for the newer cars for years. “The NTSB has pointed out the inadequacy of DOT-111 tank cars for all hazardous materials, including flammable materials, since 1991, and we recommended they be replaced or retrofit in 2015,” the agency’s chair, Jennifer Homendy, told the Senate Transportation Committee in March.

She said the NTSB supports “a shorter timeline to transition away from DOT-111s than what is currently in statute and regulation” and that “Congress should consider transitioning all other DOT-111s out of hazmat service.”

When it was first introduced, the Railway Safety Act legislation required all hazardous materials to be shipped in the higher quality tank cars by May 2025.

The amendment has moved that deadline back to December 2027, with a possibility to be moved to December 2028 if a Government Accountability Office study assesses that an additional year is needed.

“The amendment offered by Chair Cantwell (D-WA) and Sen. Vance (R-OH) makes significant improvements to the Railway Safety Act that will help prevent future incidents, strengthen emergency response and support the safe movement of chemicals vital to everyday life,” said an American Chemistry Council press release on the change.

The group’s spokesperson, Scott Jensen, confirmed to The Lever that they had been pushing for a “realistic and workable timetable” for the tank car upgrades.

For members of the American Chemistry Council, including major corporations like 3M, Dow, and DuPont, upgrading to the newer and heftier tank cars could mean higher shipping costs.

The Railway Supply Institute, a lobbying group that represents tank car manufacturers, owners, and lessors, had also pushed for the change. The group said that about thirty-five thousand new tanks needed to be manufactured to replace all of the old ones while meeting current demand for shipping hazardous materials. Manufacturers are currently producing the new tanks or upgrading older ones to meet the newer specifications at a rate of about ten thousand per year.

“If DOT-111 phase-out timelines are accelerated too quickly, it will cause a shortage of cars needed to move other critical materials,” the group’s president said in testimony submitted to the Senate.

In 2015, when the Department of Transportation first recommended phasing out the old tank cars, the Railway Supply Institute made a similar argument. But one of the country’s largest tank car manufacturers, Greenbrier Companies, disputed the trade group’s claim that the timeline was too fast — and argued that the industry could make forty thousand new cars annually and retrofit thirteen thousand more.

“The [Railway Supply Institute] analysis significantly underestimates the known capacity of the contract shop industry to meet the deadlines in the proposed rule,” said a separate study commissioned by Greenbrier. “Contract shops and new car manufacturers will respond to changes in demand, as evidenced by announcements of shop expansions and new car manufacturing capacity, leading to substantial job creation and a safer fleet.”

That manufacturer, Greenbrier Companies, did not respond to a request for comment.

The Department of Transportation’s March safety advisory on tank cars also claimed that, based on available industry data, there is sufficient manufacturing capacity to replace the antiquated tank cars “well ahead” of the existing 2029 deadline.

The legislation is now headed to the full Senate, where it will need GOP support to reach the sixty votes needed to pass. The party’s whip, South Dakota senator John Thune, is a former rail lobbyist who has opposed the legislation.

In the GOP-controlled House, Deluzio’s bill has picked up five Republican cosponsors so far.

Former president Donald Trump has endorsed the legislation, even though his administration rolled back rail safety rules.