Three days after Thanksgiving in 2013, as a commuter train hurtled toward a sharp curve near the Harlem River in the Bronx, the engineer manning the controls fell asleep.
The train derailed at 82 mph. Four people died. And doctors later determined that the Metro-North Railroad engineer suffered from undiagnosed severe obstructive sleep apnea — a condition that health experts call a major cause of drowsiness during the day. Yet he had passed all his required medical exams.
The crash, one of a series of deadly train accidents over the past five years, received a huge amount of media attention and was seen as an eye opener about a major safety gap — the lack of any federal regulation requiring rail employees who play crucial roles in public safety to be screened for ailments that make it hard to stay alert.
But more than two years later, there’s still no such rule on the books.
In fact, unlike the trucking, bus, merchant marine and airline industries, the graying rail industry is the only mode of transportation in which regulators don’t require comprehensive medical examinations for operators. The Federal Railroad Administration requires vision and hearing tests every three years, but railroads can still certify engineers who flunk if they think the worker can safely operate a train anyway. And the FRA doesn’t require workers to disclose the prescription and over-the-counter medications they’re taking, although the agency “strongly” recommends it.
The agency has been pursuing a congressionally mandated effort to tighten its fatigue rules, but those efforts are three years late amid disputes among railroads, safety advocates and labor unions. Meanwhile, the National Transportation Safety Board says it has investigated eight rail accidents in the past 15 years, resulting in 12 deaths and 97 injuries, that have had some connection to employees’ medical conditions — including five in the past five years.
The FRA and the Federal Motor Carrier Safety Administration — which regulates truckers and bus drivers — began a rule-making effort in October to identify and treat sleep disorders in operators. But that would still put any concrete federal action on conditions like sleep apnea years away.
The FRA is two months into the tenure of new chief Sarah Feinberg, who won Senate confirmation while promising a fresh focus on public safety. But the debate about medical requirements is just one of several safety issues facing the agency, including its efforts to regulate trains carrying flammable crude oil and a congressional mandate to install advanced anticollision systems — and Feinberg has only one more year on the job to make her mark.
“There’s new leadership at FRA, which I welcome, but the agency has been in the dark ages on safety,” said Sen. Richard Blumenthal (D-Conn.), who has criticized the agency’s past oversight efforts. “Basically, it’s an issue of culture at that agency — culture and tradition — that it has failed to apply sufficient scrutiny and oversight.”
Feinberg expressed frustration with the government’s rule-making procedures well before she was confirmed in October. “No one is more frustrated by our regulatory process and how long it takes than I am on occasion,“ she told a House committee in April.
Blumenthal said he plans to push for action on medical standards and fatigue prevention in early 2016 if the agency doesn’t take “effective” steps on its own. Then again, Congress just let slip a major opportunity to address the issue in December, when it enacted a railroad reauthorization as part of a five-year highway and transit bill.
Medical fitness is a serious issue for railroad operators and other types of transportation workers who have long, irregular work schedules in sedentary conditions, safety consultant William C. Keppen said. “They have the same kind of work environment that truck drivers have,” he said, adding that studies have found that truckers have higher-than-average incidences of sleep disorders “because they eat what they can eat when they’re on the road. They’re not eating healthy food in many cases.”
But unlike truckers, bus drivers or airline pilots, railroad operators aren’t subject to federal rules requiring that they undergo regular physicals, report their medical diagnoses and provide a list of prescriptions they’re taking, said Mary Pat McKay, the NTSB’s chief medical officer.
“The scary thing is that a train engineer or conductor could be taking any medication — over-the-counter or prescribed — and have any medical problem, pick your poison, and is not required to report that … or have [that] evaluated or reviewed,” she said.
The FRA does require various types of mandatory drug and alcohol screening, and some railroads — including Amtrak — go beyond federal medical testing standards on their own. But the lack of standardization across a national industry has sometimes-deadly results. The exact number of engineers, conductors and yardmasters across freight and passenger lines who may be subject to railroad-specific medical standards is unclear. The Labor Department pegged the number of workers in those occupations at nearly 77,000 in 2014.
In one startling example, a Union Pacific engineer with a history of seizures blacked out and crashed his train hauling high-fructose corn syrup in August 2014 inside a Nevada warehouse. The same engineer had had an epileptic seizure at work in November 2008 but was back on the job less than five months later, after one of two neurologists who examined him cleared him to return to duty. In contrast, the agency that regulates interstate truckers and bus drivers recommends that anyone who suffers a seizure go at least 10 years without a relapse — and without taking seizure-related medication — before he or she can return to work.
The NTSB has yet to say whether it suspects that illness or fatigue played a role in last spring’s deadly Amtrak derailment in Philadelphia, in which eight people died and more than 200 were injured after a train hurtled into a curve at more than 100 mph.
The FRA’s attempt to update its health regulations has been slowed by the approach it has taken — trying to achieve consensus among railroads, labor organizations and physicians — rather than imposing a solution. So when those interests clash, the issue can get pushed to the back burner indefinitely.
“There’s a lot of work to be done in this area, and there’s not a lot of desire by people in the industry to even address it,” said one FRA official.
The agency has bucked the consensus approach in some other cases, such as efforts to set minimum sizes for train crews and require inward-facing cameras inside train cabs.
Another solution to health- and fatigue-related crashes is “positive train control,” an advanced anticollision and automatic braking technology that Congress ordered railroads to install in 2008. But lawmakers this year extended that deadline until at least 2018, which Blumenthal said makes it all the more urgent for the FRA to move faster on the medical front.
“There’s simply no reason to ignore medical fitness or fatigue simply because there is positive train control, which won’t be in operation anyway for years on many trains,” Blumenthal said. “But even with it, there’s still the obligation to put people who are aware and medically fit at the wheel of a multi-ton train for all kinds of reasons.”
The FRA is expected to complete rules in the next few months that would require passenger and freight railroads to create risk-reduction programs that account for fatigue and related medical conditions. Some freight railroads have pursued fatigue countermeasures on their own, but they wouldn’t have to have comprehensive plans ready until the agency finishes a rule outlining their requirements, which could take years.
Even then, the NTSB has said it does not expect the rule to deal with whether train operators are medically fit for duty, beyond the fatigue issue.
One dispute that has hampered the rule-writing process is whether railroads should have access to employees’ medical records. “In an industry that has a lot of distrust, that’s frowned on,” an FRA official said — and labor unions in particular object to it.
In contrast, McKay said, federal regulations require truckers and bus drivers, merchant marines and commercial airline pilots to submit to regular examinations by doctors who have been educated in safety-sensitive professions.
Some individual railroads go beyond the federal rules. Amtrak requires engineers to undergo annual physicals that stretch beyond vision and hearing tests — they must provide their medical histories and be seen by a licensed health care provider. They’re also subject to urine testing, a review of any medications they’re taking and a sleep apnea screening, a spokeswoman told POLITICO.
But industry and current and former government officials say labor representatives have opposed any effort that could strip workers of their jobs. Indeed, unions worry that further federal regulations could set off a process that imposes no limits on the information railroads can seek from employees, said John Risch, national legislative director at SMART, the country’s largest rail union.
“We should have some protections from invasion of our personal lives from the railroad industry,” he said. At the same time, he said, “We certainly have to be qualified and fit for duty to come to work.”
A medical condition like sleep apnea is just “one of the host of things” worsening fatigue in the rail industry, Risch said, which he argued is freight rail’s top safety issue. He said one important cause of fatigue is unpredictable work schedules.
On the medical side, the FRA has run into trouble justifying the costs of new regulations compared with their benefits, the agency official said. That’s because more comprehensive medical standards and positive train control would both reduce the same kinds of crashes — rail accidents attributable to human error.
“When we try to calculate the cost and benefits for different rules, the benefits have already been used up by positive train control,” he said.
Another complication is accounting for other rules on the horizon. For example, the agency is set to propose a rule that would probably require railroads to maintain at least a two-person crew. That would provide another layer of protection against accidents caused by incapacitated engineers, Risch said — and bring the rail industry more in line with airlines, which must have two pilots in the cockpit at all times.
But for now, the fate of the medical standards is blurry.
“I think we still have a long way to go, but we’re making progress on different elements of medical standards,” the FRA official said. “But it’s a long process, and we may not get everything we want the first time around.”
FRA spokesman Matthew Lehner was more optimistic, saying the agency “has worked aggressively during the last year to move rules on sleep apnea, fatigue and inward-facing cameras forward. And we will continue that progress and also look for other nonregulatory ways in 2016 to increase safety and reduce accidents caused by human error.”
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