Berg – Winter 2024

The Railway Safety Act of 2023: A Legislative Switchyard

David Berg

The East Palestine, Ohio train derailment on February 3rd, 2023, caught the attention of the national and international media. The tiny village of 5,000 people on the Pennsylvania border—20 miles from Youngstown, 40 miles from Pittsburgh—lies in Ohio’s Appalachian region. The Norfolk-Southern train hauled 20 railcars’ worth of hazardous material.[1] Five cars containing vinyl chloride were vented and burned to prevent an explosion.[2] Although no one died in the immediate aftermath of the accident, concerns about long-term health issues and environmental contamination spurred quick action in Congress to try and prevent future similar accidents. However, congressional action faces many potential hurdles.

On March 1st, 2023, Ohio Senators Sherrod Brown and J.D. Vance, among others, introduced the Railway Safety Act of 2023 (RSA).[3] The legislation was crafted to guide the rail industry onto a safer path in the future, much like the mechanical installations in a switchyard enable trains to switch from one track to another.[4] The bill passed the Senate Commerce Committee in May 2023, but it has yet to reach the Senate floor.[5] Currently, its support falls short of the 60 votes needed to avoid a filibuster.[6] Even if it ultimately passes the U.S. Senate, the bill would likely struggle to pass the GOP controlled House.[7] When President Biden visited East Palestine on February 16th, 2024, he reiterated his support for the bipartisan Senate bill.[8] And although the enhanced regulations it contains have been praised by politicians, journalists and residents of East Palestine alike, the rail industry and their Congressional allies oppose its enactment.[9]

The RSA consists of two separate titles: Title I, “Rail Safety”, which contains 17 sections (§ 101-117), and Title 2,“Hazardous Materials Emergency Response and Preparedness”, which contains four sections (§ 201-204).[10] One of the most controversial aspects of the Railway Safety Act is § 108, known as the Safe Freight Act of 2023.[11] It would amend 49 U.S.C. § 20154 (to be called “Freight train crew size safety standards”) to require that all freight trains operated by Class I railroads have a minimum crew of two people, a conductor and a locomotive engineer.[12] The amendment provides for some exceptions to the minimum crew size, such as trains not on “main line track[s]”, trains consisting of just the engine and a caboose and trains that are traveling less than 50 miles, but it leaves “high-hazard trains” ineligible for exceptions.[13]

One of the RSA’s primary goals is the regulation of “high-hazard trains.” § 102(a) of the RSA (entitled “Tank Car Safety Requirements”) would amend 49 U.S.C. 20155 to define a “high-hazard train” as the following:

[A] single train transporting, throughout the train consist—(A) 20 or more tank cars loaded with a flammable liquid; (B) 1 tank car or intermodal portable tank load with a material toxic or poisonous by inhalation; (C) 1 or more cars loaded with high-level radioactive waste or spent nuclear fuel; (D) 10 or more cars loaded with explosives; (E) 5 or more tank cars loaded with a flammable gas; or (F) 20 or more cars loaded with any combination of flammable liquids, flammable gases, or explosives.[14]

This definition includes freight trains like the one that derailed in East Palestine, which contained twenty cars’ worth of hazardous materials, including butyl acrylate, an ingredient in plastics and glues, ethylene glycol monobutyl ether, a known carcinogen used in enamels, and PVC plastic, which may create “highly toxic dioxins when burned.”[15] The legislation includes a number of other important changes to regulations regarding rail traffic. The RSA would impose stricter requirements for defect detectors along main lines[16] and a lower limit on the maximum speed for “high-hazard” trains in urban areas.[17] The RSA would also institute a significant increase in the maximum fine that the government can impose[18] and the mandatory reporting of hazardous material transportation to state emergency response commissions.[19]

Lobbying by the rail industry, which favors allowing companies to voluntarily change their own policies,[20] has hurt the RSA’s chances of being passed.[21] Another potential problem is the shape and stipulations of a House bill, which is sure to differ from the RSA (including lacking the two-person crew provision).[22] Given that we are in a presidential election year, it is unlikely that we will see the RSA enacted in 2024. However, there still might be hope for the bill. In the past year, Class I railroads have seen an 11% increase in accidents on their main lines, underscoring the need for stricter regulation.[23] Both President Biden and former President Trump have endorsed the reform legislation.[24] On February 16th of 2024—the very day President Biden visited New Palestine—Secretary of Transportation Pete Buttigieg reiterated his hope that Congress will pass the legislation.[25] And public support for it remains strong, especially in East Palestine and nearby communities in both Ohio and Pennsylvania.[26] Even if passage of the RSA is unlikely in 2024, its supporters hope the bill will become law at some point in the not-too-distant future, effectively switching the rail industry onto a track that promises greater safety and security for communities nationwide.

[1] 50-car train derailment causes big fire, evacuations in Ohio, AP News (Feb. 4, 2023, 6:15 PM),

[2] Brenda Goodman, Experts question decision to vent and burn toxic vinyl chloride from derailed tankers in East Palestine, Ohio, CNN (June 23, 2023, 12:45 PM),

[3] Julie Carr Smyth & Josh Funk, Ohio senators introduce rail safety bill after fiery crash, AP News (Mar. 1, 2023, 6:41 PM),

[4] Id.

[5] The Editorial Board, Biden should use East Palestine visit to push bipartisan railroad safety reform, Pittsburgh Post-Gazette (Feb. 15, 2024, 8:18 AM),

[6] Joanna Marsh, Chances dim for Senate vote on rail safety bill: Consultant, FreightWaves (Nov. 29, 2023),

[7] Stephen Groves & Josh Funk, 6 months after the East Palestine train derailment, Congress is deadlocked on new rules for safety, AP News (Aug. 3, 2023, 6:50 AM),

[8] Joe Biden, President of the United States, Remarks by President Biden on Supporting the Community in East Palestine, Ohio (Feb. 16, 2024).

[9] Groves & Funk, supra note 6.

[10] Railway Safety Act of 2023, S. 576, 118 Cong. (2023).

[11] Groves & Funk, supra note 6.

[12] Railway Safety Act, supra note 9 at § 108.

[13] Id.

[14] Id. at § 102(a).

[15] Alejandro De La Garza, A Town Derailed, Time (Feb. 2, 2024),

[16] Railway Safety Act, supra note 9 at § 107(a).

[17] Id. at § 102(a).

[18] Id. at § 109(a).

[19] Id. at § 102(a).

[20] Association of American Railroads, AAR Statement on Senate Commerce Rail Safety Act Vote (May 10, 2023).

[21] Ben Ames, A year after East Palestine accident, rail industry regulations are largely unchanged, DC Velocity (Jan. 30, 2024),

[22] Marsh, supra note v; Groves & Funk, supra note 6.

[23] Ames, supra note 20.

[24] Zack Budryk, Buttigieg swipes at congressional inaction on rail safety bill as Biden heads to East Palestine, The Hill (Feb. 16, 2024, 12:08 PM),

[25] Id.

[26] Kim Lyons & Nick Evans, Ohio, Pennsylvania mark the one year anniversary of East Palestine derailment, Pennsylvania Capital-Star (Feb. 2, 2024),

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