Source: Desmog UK
National Transportation Safety Board (NTSB) chair Jennifer Homendy concluded that the East Palestine, Ohio, rail disaster was “100% preventable.” The certainty of this statement raises the obvious question: Why did this happen?
The answer was actually provided by one of Homendy’s predecessors at the NTSB. In 2014, speaking about the spate of oil train disasters that were occuring, NTSB chair Deborah Hersman told the Associated Press that, “We know the steps that will prevent or mitigate these accidents. What is missing is the will to require people to do so.”
The NTSB has no enforcement capability, so its recommendations are often ignored by the rail industry. Meanwhile, the regulators at the Federal Railroad Administration (FRA) have enforcement capability, but lack the will to enforce regulations that would prevent these accidents. More evidence, as DeSmog has documented, that the rail regulatory system is “fundamentally broken.”
In 2016, when the rail industry was actively fighting against regulations requiring modern electronically controlled pneumatic (ECP) brakes on trains carrying hazardous materials, Sarah Feinberg, the head of the FRA at the time, explained to the Washington Post the real reason why accidents like East Palestine aren’t prevented. “The science is there, the data is there,” Feinberg said. “Their argument is, despite that data, [they] don’t want to spend the money on it.”
The rail industry has frequently argued that ECP brakes don’t work and are too costly. An industry spokesperson recently said the modern brakes, “have a ‘significant’ failure rate and lengthy repair time that makes them impractical.”
Putting aside the facts that disprove this — which are detailed in the following excerpt from my 2019 book, Bomb Trains: How Industry Greed and Regulatory Failure Put the Public at Risk — there seems to be an obvious question no one is asking. If ECP brakes don’t work, why hasn’t the rail industry come up with something better that does? The current brakes are often accurately described as being “civil war era” technology. What the rail lobbyists at the Association of American Railroads are asking us to believe is that almost two centuries later, they can’t come up with a better solution.
Don’t believe them. There is a solution: ECP brakes.
As you will read in the following excerpt, the regulators, lobbyists, and rail executives are all on record saying how great ECP brakes are at improving rail safety. But then they decided they preferred making bigger profits than protecting the public. The reality is that an approach that prevents accidents by investing in safety, reduces short-term profits. Norfolk Southern, the railway responsible for the East Palestine disaster, could have paid for ECP brakes for the whole rail industry with a fraction of the profits the company made last year.
The research is clear on ECP brakes and this is why countries like Australia and others use them. In 2006, then-FRA administrator Joseph Boardman explained why ECP brakes were superior. “ECP brakes are to trains what antilock brakes are to automobiles—they provide better control.” He also is on record saying that ECP braking “offers a quantum improvement in rail safety.”
Five years ago, I wrote an article predicting more accidents like the deadly rail disaster in Lac-Mégantic, Quebec, which claimed 47 lives. It was inevitable. The current focus on rail regulation is good but I’m not optimistic about progress. This will drag on for years and the press will stop paying attention and the lobbyists will do what they do to protect profits instead of the public. I watched that happen over the five years after Lac-Mégantic and here we are again, having the same conversations. I’m not seeing anything to indicate that this time will be different.
The following excerpt from my book lays out the science and data that makes a clear case for ECP braking. If the industry is allowed to continue to enrich lobbyists willing to lie about this data, it’s only a matter of time before this happens again.
Excerpt from Bomb Trains: How Industry Greed and Regulatory Failure Put the Public at Risk.
Modern Braking Systems: Deny the Science Even After Supporting It
We now know that the oil industry was well aware of the impacts of fossil fuels on the climate and then actively worked to sow doubt surrounding the validity of that science. When it comes to modern braking systems for oil trains—known as electronically controlled pneumatic (ECP) brakes—the rail industry not only admitted to understanding the superiority of ECP brakes over conventional air braking systems but also came out in support of the safety technology.
That is, before it was against widely implementing it, as they are now.
One of the best examples of this early support is a 2004 presentation by the Association of American Railroads in which it was arguing for regulators to allow the transport of nuclear waste by rail. In that presentation, the AAR proposed that ECP brakes should be required for trains moving nuclear waste because of the “reduced stopping distances,” meaning trains would need shorter distances to slow their hulking momentum to a stop.1 In a later presentation by the Transportation Technology Center Inc. (an organization fully funded by the AAR), one slide cited the benefits of ECP braking, including “controlled brake application through the train” and “shorter stop distances,” among other benefits. The presentation noted that the combined impact of these benefits resulted in “improved safety.”2
And the issue of braking systems is the rare instance where regulators have come out strongly in favor of the ECP technology as a major improvement to safety— despite industry now fighting them every step of the way—at least for oil trains.
The “current” braking systems used by the freight rail industry rely on a technology originally invented in the mid-1800s. These air braking systems were considerably better than the industry standard back then. At the time, of course, the rail industry was slow to invest in the new, safer braking technology as it required additional investment when the main upside was simply safety.
In an air brake system, the air pressure that stops the engine and cars must travel via the full length of the train through the brake pipe. On mile-long trains, this can mean a significant amount of time is needed to actually engage the brakes across the entire train.
At a National Transportation Safety Board (NTSB) hearing in April of 2014, Richard Connor, safety specialist for the Federal Railroad Administration (FRA), which is part of the Department of Transportation, gave a presentation comparing the conventional air brake system used on most freight trains to the ECP brakes.
Connor described the performance of the traditional brakes in an emergency situation as “painfully slow” when compared to ECP’s response times. “One of the biggest advantages of ECP is that signal to apply your brakes … is going at the speed of light … it’s a much quicker signal,” he said. Connor also discussed how ECP brakes would “offer material safety advantages” over current technology in an oil train accident.
“For the purpose of why we would want ECP on, say, a unit train like these oil trains, [it’s] to reduce the impact of a derailment or reduce the damages caused by a derailment of these types of trains,” explained Connor. “[The purpose] is you get a much quicker application, you reduce that kinetic energy involved with that train.”3 And Connor isn’t alone in his support of putting these modern brakes on trains.
He’s in the company of John Risch, a national legislative director for SMART-TD, a labor union that represents employees on Amtrak, every Class I railroad, and many regional and shortline railroads. As recently as 2009, Risch, who has 40 years of experience in the rail industry, was operating trains hauling coal. In March of 2017, he spoke about ECP brakes at the Congressional Committee on Transportation and Infrastructure’s Roundtable on Emerging Railroad Technologies.
“In all that I’ve seen in my 40 years, the greatest safety improvement, bar none, is Electronically Controlled Pneumatic (ECP) train brakes,” Risch told the committee.4
A 2016 study on ECP braking led by engineering researchers at the University of Illinois at Chicago found that “the use of ECP brakes over conventional air brakes resulted in a 40 percent reduction in stopping distance and a lower risk of derailment, demonstrating a clear safety benefit,” according to Brynne Nicolsen, a research assistant at the University of Illinois at Chicago.5
Cynthia Quarterman, too, believes ECP brakes should be a top priority, based on her experience leading the Pipeline and Hazardous Materials Safety Administration during much of the multi-year process when the agency helped develop new oil-by-rail regulations.
“The more I think about it, the more I think that the ECP brakes may be more important than the tank car itself,” Quarterman told USA Today. “Because it would stop the pileup of the cars when there’s a derailment or when there’s a need to brake in a very quick fashion.”6 Quarterman has plenty of company when it comes to this position. Back in 2006, Joseph Boardman, the administrator of the Federal Railroad Administration (FRA), was explaining why ECP brakes were superior using a very easy to grasp comparison:
“ECP brakes are to trains what anti-lock brakes are to automobiles—they provide better control.” He also is on record saying that ECP braking “offers a quantum improvement in rail safety.”7
And the FRA continued to stand by these statements, as Matt Lehner, communications director for the agency, told DeSmog in 2015.
“ECP brakes are a proven technology that will reduce the number of train derailments and keep more tank cars on the track if a train does derail,” Lehner said. “Delaying the adoption of ECP brakes seriously jeopardizes the citizens and communities along our nation’s freight network.”
And 10 years before Lehner made that statement, the FRA commissioned consulting firm Booz Allen Hamilton to study the benefits and costs of ECP brakes for the U.S. freight-rail industry. Released in 2006, the firm’s report stated that the brakes are a “tested technology” that offers “major benefits” and could “significantly enhance” rail safety. And the rail industry agreed with this assessment—at least, at the time.
In 2009 the director of air-brake systems for rail giant Burlington Northern Santa Fe (BNSF) discussed the problems with the existing air brake systems in a story that appeared in the technology magazine IEEE Spectrum.
“Anytime you put the air on, you’re subject for something to go wrong,” said Dana Maryott, director of locomotive and air-brake systems at BNSF Railway.8
“We’ve had long trains where the engineer released the brake and started pulling a little bit too early, while the brakes were still set on the rear of the train,” explained Maryott. “And coming around a sharp radius, we’ve literally pulled the train off the track.” In that same article in 2009, he explained how ECP brakes were a modernized and higher caliber braking system.
Again and again, we find instances of regulators and representatives from the rail industry lauding the benefits of ECP technology. To the point that a 2010 article on rail braking and safety in the trade journal Progressive Railroading opens with the following:
“There’s no doubt electronically controlled pneumatic (ECP) brakes provide a slew of benefits compared with conventional braking systems.”9
In that same article, Larry Breeden, general manager of operating practices for Union Pacific railroad, shared his resoundingly positive opinion of ECP brakes:
“The effectiveness of the brakes is advanced. It gets instantaneous braking, plus I can graduate the release. It gives better train control and reduced fuel consumption. You also get better brake shoe and wheel life.”
Breeden then added yet another key safety advantage of ECP brakes over air braking systems.
“If something goes wrong, you wouldn’t know it with an air brake,” he said. “With ECP, you have a display that will tell you if something begins to fail.”
In that same 2010 article, Mark Schulze, vice president of safety, training, and operations support for BNSF, said, “ECP is still the right idea, but we have a couple of major hurdles before we can implement it.”
However, the title of the Progressive Railroading article praising ECP tells the story of why the industry wasn’t going to implement it any time soon: “Cost constraints, economic conditions to delay widespread electronically controlled pneumatic brake implementation.”
Addressing those concerns of cost, even after admitting that ECP brakes were the “right idea” Schulze summed up the company’s position on ECP brakes. “If you had a magic wand and could implement it with one fell swoop that would be great,” he said.
That would be great. But this technology doesn’t require magic; it simply requires the industry to invest in and implement a proven safety technology that is strongly supported by regulators. In practice, this would involve outfitting the oil tank cars and locomotives used to haul the oil trains with ECP braking technology. And while the FRA estimates this shift would require somewhere around a $500 million investment, the industry claims the number is actually $3 billion. To put this in perspective, in 2015 during the first oil-by-rail boom, BNSF made a record $6.8 billion in pre-tax income. Whatever the price tag, BNSF can afford to implement it for its own fleet and likely have enough left over to pay for the whole rail industry with its profits—a good portion of which are derived from its position as the leading oil-by-rail company.
However, years later, we see that once again the regulators aren’t really calling the shots. And instead of spending money on a superior technology that rail officials have praised repeatedly, the industry, when pressed to make the change after a string of accidents, takes the well-worn path of attacking the validity of the science underlying this technology.
On March 5, 2015, a Bakken oil train derailed in Galena, Illinois. Twenty-one tank cars derailed and at least five ruptured and burned. As with most of the rail accidents involving Bakken oil, witnesses reported seeing huge fireballs from the explosions from miles away. It was the third such accident in just three weeks. And like all of the other accidents, the firefighters pulled back for their own safety and just let the oil-filled cars burn for days.
While the train was still burning on March 6, the Association of American Railroads (AAR) and a large group of rail industry representatives met with the federal regulators who were finalizing new oil-by-rail regulations. As DeSmog reported at the time, the audacity of the industry was on full display. One slide in the AAR presentation made abundantly clear why the industry was against requiring ECP braking systems:
“If there were business benefits that outweighed the costs of ECP brakes, industry would have installed ECP brakes on a widespread basis.”10
Sounds a lot like the rail industry in the 1800s explaining the choice not to use safer steel rails as “purely a commercial decision,” doesn’t it?
In addition to directly lobbying against ECP braking at the time, the rail industry was running ads on Google challenging the science behind ECP technology. Its ads presented “The Facts on ECP Brakes,” with a subheading that claimed: “Safety data doesn’t support use of ECP brakes.”11
However, when the federal government released the new regulations in May 2015, it appeared on the surface that industry efforts had failed. The new national rules did require oil trains to use ECP brakes. But, as in many instances before, rail companies were granted substantial time to make this transition. Most oil trains could operate a full eight years after the regulations’ release before being required to have ECP brakes. Was this another example of “Safety delayed is safety denied?”
Cynthia Quarterman, no longer with PHMSA and newly free to comment on the situation, certainly seemed to think so when she discussed the new regulations. “That was the biggest surprise, by far,” Quarterman said in an interview with Argus Media after the regulations were released. “The push-back for five years for most things, I thought it was a substantial push-back in terms of dates.”12
The new rules actually didn’t take effect for more than five years for most issues. However, this is another good example of how little control regulators were exerting over what ends up in the regulations. We know Secretary of Transportation Anthony Foxx wanted regulations requiring Bakken oil to be stabilized before being loaded on trains but that request was denied. And then we have Quarterman, who oversaw the development of these regulations for several years, seeming surprised at what actually ended up in the final rules.
So, while the new regulations did include ECP brakes, which was what industry lobbying efforts had tried to prevent, rail companies were given eight years to implement this requirement. Similarly, in 2008 the industry received a seven-year timeline to implement PTC, time which the industry used to successfully lobby against and further delay upgrading to the safety technology. As with PTC, with ECP braking (and safer tank cars) the industry just had to convince regulators to extend the requirement’s deadline—not repeal it—and, as with PTC, it worked.
In 2015, the month after the government released its oil train regulations, BNSF CEO Matthew Rose used his keynote speech at the annual U.S. Energy Information Administration conference in Washington, D.C., to repeatedly criticize the new ECP requirement. Rose made it clear that BNSF had plans to get the rules changed. Recall that eight years earlier, the vice president of safety, training, and operations for Rose’s company called ECP “the right idea.” Yet Rose’s comments to the conference included, “The only thing we don’t like about it [new regulations] is the electronic braking,” and “this rule will have to be changed in the future,” and “our role is to articulate where they went wrong with it and get it fixed.”13
But how do rail CEOs get regulations “fixed”? They turn to their friends in Congress. In June of 2015, the same month Rose made his comments, the Republican-controlled Senate Commerce Committee approved a measure to drop the ECP braking requirement.14 The committee justified this action by ordering years of research to investigate the safety benefits of ECP brakes—the same approach Congress took instead of regulating rail transport of volatile Bakken oil. However, this measure failed to make it out of committee.
As so often happens in Congress, if you can’t get something passed on its own merits, you just bury it in a large spending bill that will definitely get approved. At the end of 2015, Congress passed the Fixing America’s Surface Transportation Act, known as the FAST Act. According to a Department of Transportation (DOT) website, the “FAST Act authorized $305 billion over fiscal years 2016 through 2020 for highway and motor vehicle safety, public transportation, motor carrier safety, hazardous materials safety, rail, and research, technology, and statistics programs.”15
The FAST Act was a massive transportation bill, and within its thousands of pages was tucked the following:
“The Secretary [of Transportation] shall enter into an agreement with the National Academy of Sciences to –
(A) complete testing of ECP brake systems during emergency braking application, including more than one scenario involving the uncoupling of a train with 70 or more DOT-117 specification or DOT-117R specification tank cars
Testing framework.–In completing the testing under paragraph (1), the National Academy of Sciences and each contractor described in paragraph (2) shall ensure that the testing objectively, accurately, and reliably measures the performance of ECP brake systems relative to other braking technologies or systems, such as distributed power and 2-way end-of-train devices.” [Emphasis added.]
While this research mandate sounds like a good starting point, it fails to acknowledge the large body of existing research, which has already answered these questions. ECP brakes perform much better than other, older braking systems. Why would you study something that is already well known unless you were looking for an excuse to ignore the existing science?
Rather than having the DOT base its final decision to require ECP brakes on a larger body of existing evidence, Congress called on the National Academy of Sciences (NAS) to perform a single study to determine if ECP brakes were safer than the brakes currently in use on oil trains. That is already a highly suspect approach, but one which provides the appearance of integrity.
But the study would never happen, despite congressional mandate.
In a March 2016 letter to the FRA, the NAS said it wouldn’t undertake the study or the testing and was quite clear that the academy wasn’t capable of this type of project. From the letter:
“We cannot agree to perform the testing detailed in the RFI (Request for Information). Our resources, staff, and work are all focused on convening experts to provide independent, objective analysis and recommendations to the government and the nation on matters involving science, engineering, and medicine. We do not have the capacity, expertise or experience to take responsibility for large scale physical testing of the kind described in the RFI. We therefore are not the right organization to take on the task of performing the testing.”16
Which begs the question of why Congress and the FRA specified the NAS for this project in the first place. Perhaps no one asked whether the NAS actually was capable of this testing before writing it into law. Or perhaps someone did and the academy’s refusal was all part of the plan. Neither scenario indicates a desire to truly settle the question of ECP brakes’ effectiveness on oil trains.
In the same letter to the FRA, in response to a question about how much the testing would cost, the NAS said that its members can’t answer that question but they asked the industry group, the Association of American Railroads:
“We are not able to provide a definitive answer to the question. Preliminary estimates provided by staff of the Association of American Railroads (AAR) suggest that the cost of a minimal set of tests within the time frame specified in Section 7311 (b) would exceed $100 million.”
The academy also admitted that the study very likely could not be completed on the planned timeline.
How did the NAS know? Once again, the AAR told them.
“AAR and Transportation Technology Center, Inc. (TTCI) have indicated that in order to meet the schedule specified in the RFI, testing would have to be completed by November of 2016 before the ground freezes. To meet this time frame, preparations should have begun at the beginning of 2016.”
In other words, the AAR—the lobbyists for the rail industry who were lobbying against mandatory ECP braking systems—along with the TTCI (an organization funded by the AAR) were providing the cost and time estimates for testing ECP brakes. As a result, the DOT subsequently referred to the congressionally ordered study as “not otherwise feasible from both a budgetary and time perspective.” Thus, the one and only study intended to determine the fate of this regulation was never performed.
But make note of who provided the extremely high cost estimate: the AAR. This is the same trade group whose CEO said, “Industry research and years of experimenting in real-world operating environments show ECP brakes are unreliable and have a minimal safety impact over conventional braking systems currently in place.”17
Notice how the CEO of AAR mentioned “industry research” as his justification for this statement. “Industry research” also showed that cigarettes didn’t cause cancer and Bakken oil was no different from other crude oils. Not uncommonly, that is what industry research does: support positions that maximize industry profits while dismissing risks.
However, the DOT had a solution for this apparent crisis. First, the agency determined that the testing was impossible “because the specific party that DOT was required to contract with declined to do the testing as described in the FAST Act and such testing was not otherwise feasible from both a budgetary and time perspective.”18 With the congressionally mandated testing no longer an option, the DOT moved on to an alternative plan involving the National Academy of Sciences.
The DOT proposed to “meet the intent of the FAST Act by contracting with NAS to review and monitor a test plan” that was intended to accomplish the same goal as the study that would now not happen. Everything was in place to “meet the intent” of the FAST Act although the intent was starting to become suspect.
On February 17, 2017, the NAS sent the DOT a “letter report” titled “A Review of the Department of Transportation Plan for Analyzing and Testing Electronically Controlled Pneumatic Brakes.” In that document the academy describes the tasks its members were assigned.
“In the first phase of its task, the committee is to review DOT’s testing and analysis plan and comment on whether it will provide objective, accurate, and reliable evaluations of the factors that DOT has identified in its comparison of the emergency braking performance of ECP brakes with other braking systems. The key question is whether ECP brakes would reduce the incidence and severity of spills of crude oil or ethanol from derailments compared with the alternative braking systems.
In the second phase of this project, the committee will review the conduct of DOT’s tests and reports of test results and provide its findings and conclusions addressing the performance of ECP brakes relative to other braking technologies or systems tested by DOT.”19
In the document the NAS states: “This letter report responds to the first phase of the committee’s task.” The academy also points out that it clearly does not address the second phase, which concerns “the performance of ECP brakes relative to other braking technologies.” A point it reiterated explicitly: “This report is not intended to be a comprehensive consideration of the performance of ECP brakes relative to that of other braking systems.”
On September 29, 2017, the NAS provided its final report, “A Review of the Department of Transportation Testing and Analysis Results for Electronically Controlled Pneumatic Brakes (Letter Report – Phase 2).”
Steven Ditmeyer, an expert on ECP braking and rail safety issues, was asked to comment on this report by industry trade publication Railway Age. After reviewing the report, he said he “was disappointed in it for several reasons” but also pointed out the main flaw in this whole process when he said he “was also struck by the things this TRB [Transportation Research Board] committee said it did not do.” Railway Age listed the things he said it didn’t do:
• ‘Consider] the overall costs, benefits, and effects of ECP brake systems.’
• ‘[Consider] the potential for accident avoidance through improved train handling or engineer-initiated emergency braking.’
• ‘[Draw] conclusions on the emergency performance of ECP brakes and other braking systems on the basis of results from sources other than DOT.’
• ‘[Recommend] which braking systems should be required of railroads in revenue service.’
As Ditmeyer noted, the academy’s review had a very limited scope that intentionally did not include any of the existing data about the effectiveness of ECP braking outside of the Department of Transportation’s own information, despite acknowledging such information existed and supported the use of ECP braking systems. The NAS also would not perform its own testing as mandated by Congress. This meant the final determination would be based on some limited DOT testing but primarily computer simulations—which the NAS found to be incomplete and flawed.
With three separate NAS documents produced on this issue over the course of two years, it would be possible to go into great detail about how flawed—whether intentionally or not—this whole process was from the moment it was mandated by Congress in the FAST Act.
However, all the information actually needed to reach that conclusion is included in the cover letter of the 2017 NAS report sent to Secretary of Transportation Elaine Chao.
The letter was written by committee chair Louis J. Lanzerotti and breaks out comments on the two phases of the academy’s involvement in the process.
On Phase I he writes:
“As the committee observed, reports indicate that ECP brakes are likely to be beneficial in the operational management of in-train forces. However, consideration of the potential for accident avoidance through improved train handling or engineer-initiated emergency braking was not within the committee’s statement of task.”
Right off the bat, the committee notes that reports do point to the benefits of ECP brakes but then acknowledges that the committee specifically did not look at the “potential for accident avoidance.” This raises the question of what the main goal of train safety is, if not for avoiding accidents, and seems like a rather large oversight.
On Phase II Lanzerotti writes:
“The committee concludes that DOT’s efforts to validate its modeling and simulation approach in response to that request [by NAS in phase I] do not instill sufficient confidence in DOT’s comparison of the estimated emergency performance of ECP braking systems with that of pneumatic braking systems augmented with DP [distributed power] or EOT [end of train] devices. DOT’s efforts did not follow well-established standards for the validation of computational models.” (Emphasis added.)
DP and EOT systems are ways to augment the effectiveness of the existing conventional braking systems and to improve performance but are inferior to ECP braking, based on a large body of existing research.
And then Lanzerotti summarizes the NAS position on the two-year process Congress began with the FAST Act to evaluate the already proven technology of ECP braking:
“In sum, on the basis of the results of testing and analysis provided by DOT with regard to the modeling of train derailment scenarios, the committee is unable to make a conclusive statement concerning the emergency performance of ECP brakes relative to other braking systems.”
That certainly seems like the appropriate conclusion based on several factors. Among them, the fact that the NAS was not allowed to use all of the existing research on the effectiveness of ECP braking to inform its decision, the potentially faulty models the DOT used to reach its conclusions, and the fact that the NAS (as advised by industry lobbying group the AAR) never did the testing mandated by Congress, which might have offered new insight into the effectiveness of ECP braking.
In the end, the Congressionally mandated testing was never performed by the National Academy of Sciences and the backup plan was deeply flawed, its results unable to provide the information required for the DOT to truly compare ECP braking to conventional air brakes. But forced to make a decision nevertheless, the Department of Transportation announced the fate of ECP brakes for oil trains in December of 2017.
“After careful review in accordance with the Congressional mandate contained in the FAST Act, the Pipeline and Hazardous Materials Safety Administration (PHMSA) and the Federal Railroad Administration (FRA) will rescind the ECP mandate.”20
While the FRA and NAS said there was not enough time to perform the testing Congress required, the agencies stuck to that deadline even though ECP braking was not slated to take effect until 2021. Yet the FRA rescinded the mandate four years before that point.
Nowhere in the DOT decision does it mention that the Congressional mandate for testing this safety technology was not followed. Instead, it goes on to cite the sources for the determination and the main reason—the cost benefit analysis.
“This determination was made with congressionally-mandated input from the National Academy of Sciences’ Transportation Research Board, U.S. General Accountability Office (GAO) and studies by the FRA, which found that the cost-benefit analyses are not sufficient justification for mandating ECP brakes.”
Now recall that when Louis Lanzerotti presented the findings of the NAS, he specifically said it was not looking at costs and benefits and gave no input on that topic. Yet the DOT cited the academy on it anyway to justify its decision to reverse requiring ECP brakes on oil trains, and once again cites the NAS in its announcement of this decision.
“The National Academy of Sciences determined it was unable to make a conclusive statement regarding the emergency performance of ECP brakes relative to other braking systems.”
While this statement is true on the surface, it is also highly misleading. The NAS repeatedly said that its review would not address this question and would simply look at the Federal Railroad Administration’s (FRA) work to address performance of ECP braking relative to other systems. In its report the NAS found that the FRA’s work was inadequate to reach any conclusion on this question.
Despite existing evidence of the superior performance of ECP braking relative to other braking systems —such as in the 2016 University of Illinois study or the 2006 Booz Allen Hamilton study paid for by the Federal Railway Administration or the many statements from rail company employees affirming the superiority of ECP brakes over the years, the FRA was able to orchestrate a process that arrived at the only conclusion the rail industry was willing to accept. And did so by avoiding answering the primary question Congress asked of it: whether ECP brakes outperformed other braking systems.
Costs and Benefits: GAO and Industry Estimates
In its decision at the end of 2017, the Department of Transportation claims that the costs of switching to ECP brakes are too great compared to the potential benefits. While the National Academy of Sciences did not examine costs and benefits, in October 2016 the Government Accountability Office (GAO) released a report that did, which is what the DOT used to justify rolling back the ECP braking rule.
Now this move is odd because when the GAO first released the draft report, the DOT was highly critical of its contents. The agency pointed out that the GAO report accepted without question industry estimates for many parts of the analysis while at the same time questioning DOT’s own methods. This failure to challenge industry claims is something DOT pointed out in its own highly critical comments included in GAO’s final report:
“We disagree with many of the draft report findings and statements. The approach the GAO used in the draft report generates unwarranted doubt about DOT’s rule. GAO’s report structure—presenting industry and expert comments side-by-side with Government evidence—suggests either side is correct. While DOT’s analyses were fully vetted through the rigorous and documented rulemaking process, the draft report provides no record that industry assertions underwent similar peer review or critical evaluations. The draft report does not characterize this difference between the analyses. Additionally, the report does not present the information DOT provided GAO during the audit that refutes these industry and expert assertions.”21
DOT maintains that the agency even provided information challenging industry claims on ECP brakes, but the GAO refused to include this information in its final report, which was then touted by critics of the regulation as reason to repeal it.
One simple example from the GAO report shows just how unbelievable the cost assertions are coming from the rail industry and its lobbying group, the Association of American Railroads (AAR):
“AAR and other industry participants, however, argue that DOT oversimplifies U.S. railroad operations in which crude oil and ethanol trains move between multiple origins and destinations and not often by unit train.”
Here the AAR alleges that in the U.S., crude oil does “not often” move by unit trains, which are trains carrying almost entirely a single commodity. While at the time this statement was mostly true for ethanol trains, it was simply untrue for oil trains. The majority of the loading stations for oil coming out of the Bakken Shale were constructed specifically to load unit trains of 100 or more cars.
On July 13, 2016, the National Transportation Safety Board (NTSB) held a roundtable on the issue of tank car safety while moving oil and ethanol by rail. During that event, Robert Fronczak of the AAR noted that crude oil is transported in unit trains “to a large degree” while, in contrast, “ethanol is generally not shipped in unit trains.”
Two statements from the AAR directly contradicting one another. Of course, Fronczak was telling the truth in July 2016, and yet when the AAR wanted to discuss the high cost of implementing ECP braking for oil trains, it told the U.S. government the opposite.
And the GAO’s audit did not challenge or vet this statement or, according to the DOT, any of the AAR’s assertions. Instead, the GAO apparently failed to include contradictory evidence from the DOT refuting these claims. Cases like the oil unit train example were clearly false to anyone with even basic knowledge of the oil train industry.
And yet, when the ECP braking rule was repealed, the DOT turned to the same GAO report it harshly critiqued to justify its own decision.
ECP Braking in the Real World
As part of the rulemaking process, the DOT is required to prepare a Regulatory Impact Analysis, which it did in its original rule requiring ECP brakes in 2015.
According to George Mason University’s Mercatus Institute, a “regulatory impact analysis (RIA) is a tool regulators use to help guide them through the decision-making process when promulgating regulations.”
The DOT updated the original RIA as part of the process justifying its decision to roll back the ECP braking rule.
And that updated analysis did include some real-world information about ECP braking, examining the braking system’s actual performance in Australia and South Africa, where the systems have been widely adopted.
It would be difficult to read about Australia’s experience with ECP braking and not be convinced that adopting them for oil trains in America was a good idea. Even the DOT seemed swayed in its conclusion about Australia’s situation:
“As mentioned above, Australian railroads have experienced the benefits of ECP brakes, and ECP brake systems have become the preferred method of operation. All new heavy-haul operations in Australia are being planned for and equipped with ECP braking.”22
In the report the DOT notes that Australia uses ECP brakes on trains that are similar to the oil trains in the U.S. Apparently the costs don’t outweigh the benefits in Australia, where the railroads use the technology by choice, not by mandate. DOT’s description of Australia’s experience with ECP braking ends with the following statement:
“Although there has been a learning curve in switching from conventional braking to ECP braking, the positive result of the Australian experience is clear evidence that ECP brake systems could be a proven and reliable option for HHFUTs [High-Hazard Flammable Unit Trains] in the United States.”
The agency didn’t only find convincing evidence Down Under. South Africa also offered itself as a compelling case for the modern braking system:
“Even with the heavy load and large number of cars, both countries [Australia and South Africa] experienced a reduction in the stopping distance ranging from 30-70 percent. Furthermore, both countries continued to install ECP brakes after their trial periods, which suggests that the benefits of ECP brakes outweighed the costs to install.”
Why would South African railroads choose to use ECP brakes it was cutting into profits? Because, unlike what the AAR currently claims, ECP brakes improve profits. This was known as far back as 2009 when in South Africa the rail company Spoornet “reported a 9 percent reduction in round-trip travel time” for its trains operating with ECP brakes. And as any rail CEO will tell you, time is money in the rail industry. In addition to being able to reduce travel time ECP brakes offer other economic benefits as the 2009 article in IEEE Spectrum notes “ECP is also likely to bring big savings in fuel and in maintenance of car wheels and brake shoes.”
In a 2010 article in Progressive Railroading these facts were confirmed by rail Union Pacific Railroads’s (UP) General Manager of Operating Practices Larry Breeden. UP had been running tests on trains with ECP brakes and Breeden said that “The effectiveness of the brakes is advanced. It gets instantaneous braking, plus I can graduate the release. It gives better train control and reduced fuel consumption. You also get better brake shoe and wheel life.”
Faster turn times and costs savings. A system that train operators prefer. Improved safety. There is a long list of reasons why ECP brakes make sense in South Africa and Australia and the FRA and US train executives have confirmed those reasons repeatedly. The science and economics are all proven and known.
And yet, perplexingly, the DOT came to the opposite conclusion in December 2017 and decided to repeal the regulation requiring ECP brakes on U.S. oil trains.
The System Is Rigged
In April 2014, comments by FRA safety specialist Richard Connor revealed what one government regulator thought of the existing brake systems on trains.
“I’m not sure with the audience if you all understand how the current air brake systems on our freight trains out there operate today, but it’s basically 19th century technology,” said Connor.
That was a safety specialist for the Department of Transportation. Furthermore, in 2016, the FRA told DeSmog that these ECP brakes “could significantly enhance rail safety and efficiency.” But just a couple years later, somehow the same agency concluded that sticking with “19th century technology” is now the best approach for hauling hazardous materials.
What has changed in that time?
Risch, with his four decades of experience in the rail industry, offered some insights over email shortly after the ECP regulation was repealed at the end of 2017:
“Clearly the railroad industry’s overwhelming influence over the Trump administration is paying off in repealing the ECP brake rule. ECP brakes are the safest, most advanced braking systems in the world and without some government requirement we will continue to use our current, outdated 150-year-old braking technology for the foreseeable future.”
And that is how BNSF CEO Matthew Rose could confidently tell a roomful of hundreds of people that the rail company would not accept ECP regulations shortly after they were announced. The “epidemic madness” that plagued rail management in the 1850s is alive and well in the 21st century but now known by its actual name: greed.
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