Description: Safety News - 12/21/1999 - Petition for Emergency Order

December 21, 1999

The Honorable Jolene Molitoris
Administrator
Federal Railroad Administration
1120 Vermont Ave., NW., MS25
Washington, DC 20590

Re: Petition for Emergency Order

Dear Madam Administrator:

The Brotherhood of Maintenance of Way Employes (BMWE) respectfully requests the issuance of an Emergency Order to rectify life-threatening deficiencies in the application of Roadway Worker Protection, 49 CFR Part 214(c). Specifically, we request 1) an emergency order extending mandatory adjacent track protection to all roadway work groups under 214.335(c) and, 2) an emergency order requiring the Employee In Charge (EIC), or his/her qualified designee, to be physically located at the work site where working limits or train approach warning has been established by the EIC for the purpose of on-track protection under 214.319.

On August 4, 1999, roadway worker Mr. G. N. Ambuehl was struck by a train passing on a track adjacent to the track being occupied by the crew to which Mr. Ambuehl was assigned. This incident occurred on the BNSF Minnesota Operation Division near Perham, Minnesota. Thankfully, Mr. Ambuehl was not fatally injured but he did sustain severe damage to his arm and elbow. There was no adjacent track protection provided, no watchman/lookout was assigned, the EIC in charge of on-track protection was located several miles away and not physically located on the job site where the striking accident occurred, and no one physically located on the job site where the near-fatal accident occurred was qualified and designated to establish and/or modify on-track safety procedures.

On November 9, 1999 another BNSF roadway worker, Mr. Kerry E. Elliott, was struck and killed by a train traveling on the adjacent track near Juniata, NE. This fatal accident occurred under circumstances hauntingly similar to the near-fatality outlined above. Mr. Kerry and his crew were working with a machine in a siding, attempting to become familiar with and qualify on the equipment. It is our understanding that brush and weeds on the field side of the siding would not allow men to move freely around the machine on the field side. Thus, crew members were forced into the foul of the adjacent track every time they needed to move around the machine. It is also our understanding that a grain dryer was operating close to the siding, thereby affecting the crew's hearing, and that ballast cars were parked on the siding which may have obscured the crew's vision of the adjacent track. In this fatal accident, there again was no adjacent track protection provided, no watchman/lookout assigned, no EIC physically present on the job site, and no one physically located on the job site where the fatality occurred who was qualified and designated to establish and/or modify on-track safety procedures.

We believe that the current language of 214.335(c) must be amended by Emergency Order to provide, effective immediately, that all roadway work groups be provided protection from adjacent track movements. Thus, we propose the following language modifying 214.335(c) be adopted and issued in an Emergency Order:

Proposed modification to 214.335(c)

Roadway work groups engaged in large-scale maintenance or construction shall be provided with train approach warning in accordance with §214.327 for movements on adjacent tracks that are not included within working limits.

The preceding will require adjacent track protection regardless of the size or function of the roadway work group. We believe that removing the limiting language as proposed above will increase compliance with the intent of adjacent track protection and provide the requisite level of safety for employees working near live adjacent tracks.

The second issue directly related to the practice of not providing crews adjacent track protection is the failure of the carrier to assure that an EIC is present at the work site whenever roadway workers and their equipment are required to work near live track. We strongly believe that an EIC must be physically located at the work site to ascertain that RWP procedures are established and followed, to provide job briefings and follow-up briefings, to notify the crew of the RWP procedures in effect and notify them each time those procedures change as required by 214.315(d), and to consider any good-faith challenges raised by members of the crew working under the EIC's protection and supervision.

As you are aware, the question of whether an EIC must be physically located at the work site was a subject of much discussion (TRC issue # R12) in the Technical Resolutions Committee meeting held in Las Vegas, NV the week of August 23, 1999. While an interpretation has not yet been rendered by FRA, it is clear that an EIC who is not working directly with his/her crew can not effectively perform the functions required of an EIC. Had an EIC been located on the job site with crew members in the two BNSF accidents summarized above, it is highly likely that severe injury and loss of life would not have occurred.

In the interest of roadway worker safety, we implore FRA to issue Emergency Orders requiring adjacent track protection for all roadway work groups and require the EIC or his/her qualified designee to be physically located at the job site for the purpose of establishing and assuring compliance with the Roadway Worker Protection regulations.

Respectfully,
President

cc:
Mr. William E. LaRue
All Vice Presidents & General Chairmen in U.S.
Mr. R. A. Inclima