S190

An Act concerning railroad safety and supplementing Title 27 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. As used in P.L. , c. (C. ) (pending before the Legislature as this bill):

“Board” means the Board of Public Utilities.

“Branch line” means a secondary railroad track that branches off from a main line.

“Commissioner” means the Commissioner of Transportation.

“Dangerous hazardous train” means any railroad locomotive propelling a railroad tank car or connection of railroad tank cars transporting 200,000 gallons or more of petroleum or petroleum products or 20,000 gallons or more of hazardous substances other than petroleum or petroleum products.

“Defects” include hot wheel bearings andhot wheels.

“Department” means the Department of Transportation.

“Hazardous substances” means any Class 1 explosives categorized in Division 1.1, 1.2, or 1.3, as such terms are defined in 49 C.F.R. s.173.50; any flammable gases as defined in 49 C.F.R. s.173.115(a); any flammable liquids as defined in 49 C.F.R. s.173.120(a); any hazardous material designated by the Secretary of Transportation as hazardous pursuant to 49 U.S.C. s.5103; any high level radioactive waste and spent nuclear fuel with the same meanings given to a “type B package” or a “fissile material package” as defined in 49 C.F.R. s.173.403; any material poisonous by inhalation or material toxic by inhalation as defined in 49 C.F.R. s.171.8; and any environmentally sensitive chemicals which shall include, but not be limited to:

a. AllylChloride;

b. Carbon Tetrachloride;

c. Chlorobenzene;

d. Chloroform;

e. O-Dichlorobenzene;

f. Dichloropropane (Propylene dichloride);

g. Dichloropropane/Dichloropropene mixture;

h. Dichloropropene;

i. Ethyl Chloride;

j. Ethylene Dibromide;

k. Ethylene Dibromide and Methyl Bromide mixtures;

l. Ethylene Dichloride;

m. Epichlorohydrin;

n. Methyl Chloroform (1,1,1 Trichloroethane);

o. Methylene Chloride (Dichloromethane);

p. Methylene Chloride/Chloroform mixture;

q. Perchloroethylene (Tetrachloroethylene);

r. Perchloroethylene/Trichloroethylene mixture;

s. Trichloroethylene; and

t. any new or emerging hazardous substances, as determined by the commissioner, in consultation with the Commissioner of Environmental Protection, that may be deemed to be environmentally sensitive chemicals, including those identified by the United States Environmental Protection Agency or the United States Department of Transportation.

“Main line” means a Class I railroad, as documented in current timetables filed by the Class I railroad with the Federal Railroad Administration, over which 5,000,000 or more gross tons of railroad traffic is transported annually. “Main line” includes railroads used for regularly scheduled intercity or commuter rail passenger service, or both.

“Major facility” shall have the same meaning as set forth in section 3 of P.L.1976, c.141 (C.58:10-23.11b).

“Owner” or “operator” means, with respect to any dangerous hazardous train, any privateperson owning the dangerous hazardous train or operating it by lease from a privately owned or public railroad, contract, or other form of agreement; however, “owner” or “operator” shall not mean a private person who operates a dangerous hazardous train only for the purposes of positioning or moving railroad tank cars within the confines of a major facility or a private person whose interest in a dangerous hazardous train solely involves the ownership or lease of one or more railroad tank cars without operational authority.

“Petroleum” or “petroleum products” shall have the same meaning as set forth in section 3 of P.L.1976, c.141 (C.58:10-23.11b).

“Railroad” means any form of non-highway ground transportation that runs on rails or electromagnetic guideways, including commuter or other short-haul railroad passenger service in a metropolitan or suburban area, commuter railroad service, and high-speed ground transportation systems that connect metropolitan areas, without regard to whether those systems use new technologies not associated with traditional railroads. “Railroad” does not include rapid transit operations in an urban area that are not connected to the general railroad system of transportation.

“Short line” means an independent railroad company that operates over a relatively short distance.

“Train” means one or more locomotives coupled with or without cars, requiring an air brake test in accordance with either 49 C.F.R. Part 232 or 49 C.F.R. Part 238, except during switching operations or where the operation is that of classifying and assembling rail cars within a railroad yard for the purpose of making or breaking up trains. “Train” includes a single locomotive, multiple locomotives coupled together, and one or more locomotives coupled with one or more cars.

“Wayside detector system” means an electronic device or a series of connected devices that scan passing trains, rolling stock, on-track equipment, and their component equipment and parts for defects.

2. a. The owner or operator of a dangerous hazardous train shall require a minimum of two crew members on all dangerous hazardous trains.

b. The owner or operator of a dangerous hazardous train shall not be required to provide a minimum of two crew members on a dangerous hazardous train if:

(1) the train is using a locomotive or a group of locomotives to assist another train that has incurred mechanical failure or lacks the power to traverse difficult terrain, including traveling to or from a location where assistance is provided;

(2) the train is a tourist, scenic, historic, or excursion operation that is not part of the general railroad system of transportation;

(3) the train is a locomotive not attached to railcars, is located inside a rail yard, and is being moved between tracks in order to keep the train organized and on schedule or is being moved to or from a maintenance shop; or

(4) the owner or operator is exempted from the two-person crew requirement by the commissioner due to having not more than 15 employees and operating a train at a maximum authorized speed of not more than 15 miles per hour.

c. Notwithstanding the exceptions listed in subsection b. of this section, the owner or operator of a dangerous hazardous train shall require a minimum of two crew members on a dangerous hazardous train when the dangerous hazardous train is transporting:

(1) one or more loaded freight cars containing any material poisonous by inhalation as defined in 49 C.F.R. s.171.8, including anhydrous ammonia (UN1005) and ammonia solutions (UN 3318); or

(2) 10 or more loaded freight cars or freight cars loaded with bulk packaging as defined in 49 C.F.R. s.171.8 or one or more intermodal portable tanks containing any combination of these materials or any Division 2.1 flammable gases as defined in 49 C.F.R. s.173.115(a), Class 3 flammable liquids as defined in 49 C.F.R. s.173.120(a), Class 1 explosives categorized in Division 1.1 or 1.2 as such terms are defined in 49 C.F.R. s.173.50, or hazardous substances listed in 49 C.F.R. s.173.31(f)(2).

3. a. A railroad company, including a short line, operating within this State on any main line or branch line shall not operate, or permit to be operated, on any part of a main line or branch line, any train which exceeds 8,500 feet in length.

b. Notwithstanding section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill):

(1) a privately ownedrailroad violating any provision of this section shall be liable for a civil penalty. Any civil penalty imposed may be collected, and any costs incurred in connection therewith may be recovered, in a summary proceeding pursuant to the “Penalty Enforcement Law of 1999,” P.L.1999, c.274 (C.2A:58-10 et seq.). The Superior Court shall have jurisdiction to enforce the “Penalty Enforcement Law of 1999,” P.L.1999, c.274 (C.2A:58-10 et seq.).

(2) the amount of the civil penalty shall be at least $500 but not more than $1,000 if the train exceeds the maximum train length provided in subsection a. of this section; however, when a grossly negligent violation or a pattern of repeated violations has caused an imminent hazard of death or injury to individuals, or has caused death or injury, the amount of the civil penalty shall not be more than $250,000, regardless of the length of the train. Each day the violation continues shall constitute a separate and distinct violation.

c. Notwithstanding subsection a. of this section, the commissioner may grant a temporary waiver from the train length limitation in the event of a declared State or federal emergency, natural disaster, or when the commissioner reasonably determines that it is in the public interest to maintain critical freight movement. Upon application by an owner or operator, such waivers shall be granted in writing for a period not to exceed 30 days. A waiver shall only remain in effect for the duration of the declared State or federal emergency, natural disaster, or for the time that the commissioner deems reasonably necessary. However, a waiver shall not extend beyond 30 days without resubmission of a waiver request by an owner or operator and re-approval by the commissioner upon a showing of continued need.

4. Except as provided in section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill), the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) shall not apply to the owner or operator of a Class III carrier, as defined by the Surface Transportation Board pursuant to 49 C.F.R. Part 1201 1-1, that operates within a single municipality on not more than 25 total track miles and is engaged in switching or terminal railroad services. Nothing contained herein shall be construed to exempt a major facility from the provisions of the “Spill Compensation and Control Act,” P.L.1976, c.141 (C.58:10-23.11 et seq.).

5. The owner or operator of each privately owned railroad shall submit a copy of the most recent bridge inspection report generated pursuant to the federal “Fixing America’s Surface Transportation Act,” Pub.L.114-94 for every bridge in this State owned by the privately owned railroad to the commissioner, the Governor and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), the Legislature within 30 days of each inspection.

6. a. The department, in conjunction with the board, shall work with each railroad company that operates a train in the State to determine the appropriate type of wayside detector system for a section of track, ensure that wayside detector systems are installed and are operating along railroad tracks on which the railroad company operates, and ensure that such systems meet the following standards:

(1) the wayside detector systems are properly installed, maintained, repaired, and operational in accordance with the latest guidelines issued by the United States Department of Transportation, the Federal Railroad Administration, and the Association of American Railroads;

(2) any expired, non-working, or outdated wayside detector systems, or component parts of a system are removed, and replaced with new parts or entirely new systems that reflect the current best practices and standards of the industry;

(3) the railroad company has defined, written standards and training for its employees pertaining to wayside detector system defect alerts, the course of action that employees are required to take to respond to an alert, and appropriate monitoring and responses by the company if employees fail to take the required course of action; and

(4) the distance between wayside detector systems is reasonable when considering all relevant factors, including, but not limited to: the natural terrain surrounding the railroad track on which the railroad operates; the safety of the trains, rolling stock, on-track equipment, operators, and passengers; the clarity and accuracy of radio communications; the length of the train; the frequency of the trains; and persons and property in the vicinity of the railroad track so that if defects are detected, operators have sufficient time to:

(a) respond to the alerts projected by the wayside detector system;

(b) stop the train, rolling stock, or on-track equipment, if necessary; and

(c) make all necessary repairs or, if repair is impossible at the location, to remove the component parts or equipment that are defective.

b. If a railroad company unreasonably refuses to work or otherwise cooperate with the board and the department in good faith in accordance with this section, the board and the department shall investigate the railroad company’s safety practices and standards. The board and the department shall determine whether the company appears to be in compliance with federal railroad safety standards, as defined in 49 C.F.R. Part 209.

c. If the board and the department determine that a railroad company does not appear to be in compliance with the applicable federal standards pursuant to subsection b. of this section, the board and the department shall:

(1) make a report to the Federal Railroad Administration within 60 days of making the determination pursuant to subsection b. of this section. The report shall detail the results of the investigation and recommend that the administration take enforcement action against the railroad company, in accordance with the administration’s authority, for the safety violations discovered through the investigation; and

(2) send a copy of the report to the Governor and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), to the Legislature.

d. The board, in collaboration with the department, shall develop and administer a funding assistance program for railroad companies operating within the State to support compliance with the installation and maintenance requirements set forth in subsection a. of this section. At a minimum, the funding assistance program shall:

(1) prioritize assistance based on a risk assessment that considers:

(a) the volume and frequency of dangerous hazardous train traffic on a given route;

(b) the railroad’s proximity to densely populated communities or environmentally sensitive areas, as determined by the board and the department, in consultation with the New Jersey Department of Environmental Protection;

(d) existing gaps in detection coverage;

(e) the financial capacity of the railroad owner or operator; and

(f) whether the railroad is classified as a short line railroad;

(2) provide grants, reimbursements, or technical assistance to cover eligible costs related to the acquisition, installation, modernization, and maintenance of wayside detector systems;

(3) establish clear application procedures, deadlines, and documentation requirements;

(4) require that the funding assistance program recipients submit annual reports to the department and the board detailing expenditures, system performance, and maintenance activities; and

(5) be subject to audit by the State Auditor or other appropriate oversight body to ensure compliance and fiscal integrity.

7. a. As used in this section:

“Labor representative” or “representative” means a member of a non-profit labor organization.

“Non-profit labor organization” means a non-profit labor organization that represents a class or craft of employees of rail carriers or rail carrier contractor officials.

“Trade secret” means the same as that term is defined in section 2 of P.L.2011, c.161 (C.56:15-2).

b. A labor representative who has been designated by a non-profit labor organization as an inspector with relevant knowledge and experience with hazards on railroad property shall be permitted to enter the property of a privately owned railroad to inspect for safety hazards pursuant to State and federal regulations. The owner or operator may designate a railroad company employee to accompany the labor representative at all times on the privately owned railroad property.

c. Notwithstanding subsection b. of this section, an owner or operator may deny a request by a labor representative to enter the property of the privately owned railroad no more than twice in a calendar year for bona fide business reasons, including workforce shortages, temporary railroad closures due to scheduled maintenance or emergency repairs, or extreme weather conditions.

d. Notwithstanding subsection b. of this section, an owner or operator may deny a labor representative access to areas of the property of a privately owned railroad:

(1) as necessary to protect against the unauthorized disclosure of the railroad company’s trade secrets, proprietary information, or confidential information; or

(2) that are unrelated to any pending or existing contracts between the railroad company and the non-profit labor organization.

e. While on the premises of a privately owned railroad pursuant to subsection b. of this section, a labor representative shall carry valid photo identification and written authorization issued by the non-profit labor organization, which identification and authorization shall be presented upon the request of the owner or operator of the railroad property or any law enforcement officer with jurisdiction over the property.

f. A labor representative acting in good faith and without gross negligence or willful misconduct shall be immune from civil liability for actions undertaken while on the property of the privately owned railroad.

g. An owner or operator may require a labor representative to execute nondisclosure agreements to protect trade secrets or confidential information viewed during an inspection, except as necessary to report hazardous conditions or violations to State or federal regulatory agencies.

8. a. The department shall adopt rules and regulations pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), to effectuate the purposes of P.L. , c. (C. ) (pending before the Legislature as this bill) within 18 months after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill).

b. The department shall coordinate with the board through a memorandum of understanding to ensure alignment of regulatory activities where railroad safety initiatives intersect with utility infrastructure, grade crossings, or energy-related systems under the jurisdiction of the board.

9. If any provision of P.L. , c. (C. ) (pending before the Legislature as this bill) or its application to any person or circumstance is held invalid, the invalidity shall not affect any other provision or application of P.L. , c. (C. ) (pending before the Legislature as this bill) which can be given effect without the invalid provision or application, and to this end the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) are severable.

10. This act shall take effect immediately.

STATEMENT

This bill establishes certain railroad safety requirements for certain railroads in the State. Specifically, under the bill, the owner or operator of a dangerous hazardous train is to require at least two crew members on all dangerous hazardous trains unless certain exceptions, as outlined in the bill, are present. The bill specifies, however, that the exceptions do not apply if the dangerous hazardous train is transporting certain materials outlined in the bill.

The bill also prohibits a railroad company from operating any train that exceeds 8,500 feet in length on any main line or branch line within the State. A privately owned railroad found in violation of the train length restriction is to be liable for a civil penalty of at least $500 but not more than $1,000. The bill provides, however, that the civil penalty may be increased to up to $250,000 in certain situations involving a grossly negligent violation or a pattern of repeated violations. Under the bill, each day a violation continues is to constitute a separate and distinct violation. However, the bill authorizes the Commissioner of Transportation (commissioner) to grant a temporary waiver of the train length restriction in certain situations and establishes certain parameters regarding the award and any extension of a temporary waiver.

In addition, the bill establishes certain bridge inspection reporting requirements for owners and operators of privately owned railroads.

The bill further requires the Department of Transportation (department), in conjunction with the Board of Public Utilities (board), to work with railroad companies in the State to determine the appropriate type of wayside detector system to employ and to ensure that certain requirements for wayside detector systems are met. The bill requires the board and the department to investigate a railroad company’s safety practices and standards if the railroad company unreasonably refuses to work or otherwise cooperate with the board and the department to ensure that the wayside detector system requirements established by the bill are met. The bill requires the board, in collaboration with the department, to develop and administer a funding assistance program to ensure railroad companies in the State meet the wayside detector system installation and maintenance requirements established by the bill. The bill establishes the minimum requirements for the funding assistance program, as outlined in the bill.

Additionally, the bill requires a “labor representative,” defined in the bill as a member of a non-profit labor organization, who has been designated by a non-profit labor organization as an inspector with certain qualifications, to be permitted to enter the property of a privately owned railroad (property) to inspect for safety hazards pursuant to State and federal regulations. Under the bill, an owner or operator may designate a railroad company employee to accompany the labor representative while on the property. In addition, the bill requires the labor representative to carry valid photo identification and written authorization issued by the non-profit labor organization while on the property, and to present the identification and written authorization upon request. Under the bill, a labor representative acting in good faith and without gross negligence or willful misconduct is to be immune from civil liability for actions taken while on the property. The bill permits an owner or operator to require a labor representative to execute a nondisclosure agreement to protect trade secrets or confidential information viewed during an inspection, except where necessary to report hazardous conditions or violations.

The bill further specifies that, with the exception of the provisions concerning the train length restriction, the provisions of the bill are not to apply to an owner or operator of a Class III carrier, as defined by federal regulations, that operates within a single municipality on 25 track miles or less and which is engaged in switching or terminal railroad services. Finally, the bill clarifies that its provisions are not to be construed to exempt a major facility from the provisions of the “Spill Compensation and Control Act.”