Friday, October 31, 2014

Why NTSB got it wrong

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Why NTSB got it wrong
I forced myself to review every miserable second of the Oct. 28, 2014 NTSB press conference regarding NTSB’s determination of the causes of five accidents on Metro-North Railway (MNR), for a couple of reasons: 1) I couldn’t believe what was being said; and  2) I couldn’t believe what was being said. I mean, come on: FRA as a “lawless, rogue agency”?

I thought I would go through the video second by second just so I could set the record straight, or at least correct some of the more egregious errors presented as facts by NSTB's Hart, and Senators Schumer, Blumenthal, and Murphy.

Here’s my plan: Times refer to approximate times on the video recording. The speaker’s name is in parentheses after the time. The speaker’s assertion follows the name.

02:57 (Hart): “Time and again in these investigations we saw regulatory and oversight lapses that NTSB had warned about before ...”

What regulatory lapses? What portion of the existing CFR (Code of Federal Regulations) did FRA fail to enforce that created or facilitated these accidents?

Let’s be clear: An NTSB recommendation is not a regulation, does not have the force of law, and is not always a solution.

There is a reason NTSB as an investigative body is not a regulatory body and cannot mandate actions. That reason is because mandatory actions are properly the arena for action by the Congress. Congress can and has ceded authority to the Executive branch in many areas for many reasons, not the least of which is to expedite the actual implementation of regulations, and to draft regulations in a timely manner. This is part and parcel of the separation of powers, and it ensures, among other things that Congress does not have to bother itself with the details of regulation. Instead, Congress can devote its attention to more important things, like being entertained by lobbyists, and raising money for the next election campaign.

The NTSB is happy in that role of limited responsibility, as it demonstrated later in the news conference when asked to make a substantive assessment of the current safety of Metro-North. So let’s begin.

03:59 (Hart): [A contributing cause to the derailment at Bridgeport, Ct. on 5-17-2013] “was the regulatory exemption that allows less comprehensive track inspections for high density commuter railroads.” Hart here refers to 217.233 (b)(3) that states: “On high density commuter lines where track time does not permit an on-track vehicle inspection, and where track centers are 15 feet or less...” inspections may be conducted either by vehicle or on foot from an adjacent track.

As Schumer made so painfully clear, this is counterintuitive—to the unqualified. It is not irrational to those who are responsible for safe rail service. First, nothing in this paragraph exempts the high density commuter railroad from maintaining the track standards required for the intended speed of train operations. NTSB may not think that’s an important point, but it happens to be an important point in law and regulation. The requirement is for the track to meet certain measurable requirements, or to not fall below certain measurable requirements. That is the railroad’s responsibility in all circumstances.

Second, the major sources for track deformation are poor drainage and heavy axle load traffic. You can observe evidence of poor drainage impacting track structure without physically occupying that track. MNR, being a high density commuter line without heavy axle load traffic but with a schedule that makes providing the service and on-track inspections problematic, availed itself of this “relief.” However, nothing relieved MNR from maintaining the track to the required standards for its class of service.

Thirdly, visual inspections from the adjacent track did indeed detect the defective track condition prior to the development. MNR track inspection reports just prior to the derailment identified the track deflection under load at the compromise joint, and the absence of a crosstie supporting the joint structure. The failure was the failure of the railroad, not the regulator.

NTSB may not like the FRA’s exception, yet we have to ask, “how long has this exception been in place?” and “what has been the systemic risk to high-density commuter traffic since the exception has been in place?” Now, that requires data and analysis, not sentiment and literary allusions. Can NTSB provide any information on the level of risk? On the number of incidents it thinks can be prevented by removal of this “relief”? And no, don’t include the derailment at Bridgeport, because I have already pointed out that the defective condition was identified prior to the derailment—and probably more than once.

Clearly, the problem is in obtaining data in a timely manner that identifies the problem; and communicating, recording, and highlighting the problems indicated by the data. That real task, and real problem, requires much more than just visual inspection. It requires the application of advanced technologies to inspection vehicles, and even in-service rolling stock, that can measure and transmit such information through a reliable electronic data network, so that the painful attention to detail is in everybody’s face every day.

05:24 (Hart) [Contributing to the fatality of a roadway worker near West Haven on May 28, 2013]: “there was no redundant backup feature [to protect the roadway worker] if the first protection failed.”

Hart here is referring the application of “shunts”—actually introducing short circuits into the signal system that will force a wayside signal to show a restrictive indication, thereby instructing the locomotive engineer to slow the train.

Well... indeed it is good to have redundant safety systems in the event the train dispatcher fails to properly protect the roadway worker. However, before FRA can demand all railroads utilize such shunts, NTSB needs to recognize that 1) such shunts are not 100% reliable, 2) that such shunts only work on rails that have electric track circuits that indicate conditions of occupancy, 3) and that only 50% of the rail network of the major railroads is so track-circuited, and unless the railroad has equipped its locomotives (or cab cars) with automatic speed control, not even the application of the shunt can force the train to reduce speed.

So where tracks are circuited and where speed control is implemented should shunts be used? I would use them, until I positively developed a system that, after the train dispatcher cedes authority over a portion of track to a roadway worker, automatically prevents anyone other than that roadway worker from authorizing movement into the work zone, whether or not the track has speed control.

But there’s another issue here: The regulator of an industry is supposed to set minimum requirements that all railroads must meet under all (or almost all) conditions. FRA is required to propose and adopt rules through a mechanism that affords some semblance of due process. That means when the railroads themselves, or when the labor unions representing the railroad employees, present a substantial resistance to a proposed rule, railroads and/or the organizations can and will, legally, make every effort to prevent adoption of the rule. That means going to the courts, hiring lobbyists, and appealing to legislators like Senators and representatives to pre-empt the agency.

That’s the reality. Senators Murphy and Blumenthal can complain over FRA’s lack of dispatch, for example, in setting medical fitness standards (which would certainly target sleep apnea), but the reality is that the railroads and the labor organizations cannot reach consensus, and neither side is willing to accept FRA’s own judgment in this matter.

FRA can and should impose those standards over the objections of any and all. But for FRA to do that, it has to be willing to confront not only the railroads and the unions, but the members of Congress who will involve themselves on behalf of one side or the other.

I mentioned earlier how I don’t recall NTSB in its annual reports ever appealing to Congress, its “parent,” to cut through the deadlock or the delay and pre-empt the regulatory agency by passing legislation mandating a single one of its safety recommendations—not even one of its top ten.

And we know why. Congress would not act. The appeal by NTSB would be divisive in the extreme and probably jeopardize NTSB more than FRA. That’s the pact, and maybe it’s with the devil, that due process and separation of powers bring to the table.

Congress can act; I would love to be at the meeting where the Senators who flay FRA for not taking actions unilaterally inform their constituent unionized railroad employees that they will be introducing legislation requiring such standards, such testing.

Would I say to the Senators when the proverbial s**t hit the proverbial fan, “I told you so”? ME? In the immortal words of the late, great Don Cornelius, “You can bet your last bottom dollar” I sure would.

NTSB’s analysis of the CSX derailment in the Rock Cut on MNR is interesting, because in this instance, physical inspection of the track had been conducted shortly before the derailment and the track was within specification for its class of service.

I think NTSB got the cause wrong. I do not believe this derailment was caused by wide gage due to deteriorated ties. Gage and profile were within specification—which tells us how inadequate gage and profile can be at times for explaining train/track dynamics. Given the deflection under load of the rail, I think this derailment was caused by track “warp” or “twist”: uneven short amplitude track deformation, which caused the wheels on a car (or cars) to “unload” and lose contact with the rail—a track condition to be sure, but one where the solution is not simply meeting a minimum standard.

Which gets us to Dec. 1, 2013, Spuyten Duyvil wreck, train 8808, just south of CP 12, 30 mph permanent speed restriction. And the death of four passengers.

07:55 (Hart) “Contributing to the accident was the absence of a Metro-North policy or a federal regulation requiring screening for sleep disorders. Also contributing was the lack of a PTC system.”

Look, I don’t doubt that the locomotive engineer suffered from sleep apnea, but I don’t know, and neither does NTSB, if sleep apnea caused this accident, or if the engineer just lost track of where he was. (Maybe there’s an argument there for inward facing video cameras, which won’t be of any use if the locomotive engineer happens to be wearing his company issued, OSHA approved safety sunglasses).

But we do know this: NTSB analyzed event recorder data from 18 runs (trips) by MNR Hudson Line locomotive engineers from Nov. 16 to Nov. 30, 2013. In those 18 runs, there were 20 separate incidents where the locomotive engineer allowed the train to exceed MAS (maximum authorized speed) by at least 5 mph.

We do know that NTSB performed a similar analysis for six trips made by the engineer of 8808 between Nov. 24 and Nov. 30, 2013. In those six runs, this locomotive engineer operated above the MAS 14 separate times. Now, what would a reasonably qualified, experienced operating officer conclude? That the locomotive engineer fell asleep 14 times in six trips with the throttle open?

Any operating officer diligent enough to make reviewing event recorder data part of his or her daily actions would conclude that this locomotive engineer presents an unacceptable risk to safe train operations (and is probably not alone in representing such a risk. Time to download more event recorders) and that something needed to be done immediately like 1) call the engineer in to review the event recorder data, 2) advise the locomotive engineer that you were scheduling a disciplinary hearing for these repeated violations, 3) contact the General Road Foreman of Engines and advise that individual that he or she should review the data for violations greater than 10 mph over the MAS, which will trigger mandatory decertification, and 4) after consultation with the GRFE probably remove said locomotive engineer from service, thus saving yourself and hundreds of others unnecessary heartache. No doctor’s notes needed.

Of course, that officer would immediately hear from the general chairman of the organization representing the locomotive engineers, but big deal, right?

Anyway, what’s the point? The point is an operating officer does not need to perform medical screening to determine the employee’s compliance with the minimum operating requirement. The point is operating officers already have an inward facing “camera. “ It’s called the event recorder.

The point is that only through non-confidential investigation into operating performance— performance not protected from intervention, reinstruction, and discipline—can the risk of catastrophic human failure be accurately measured and appropriately mitigated.

The determination of cause by the NTSB certainly accomplishes something, and the lawyer, Jeffrey P. Chartier, for this locomotive engineer knows what that accomplishment is: “The NTSB findings support the fact that Billy [Rockefeller] was not negligent or criminally responsible for this tragedy.” The defense rests.

The final accident under review was the fatal injury to a roadway worker in the vicinity of 110th St. and Park Avenue in Manhattan. The worker was struck by a moving train when he was obstructing the track outside the protected work zone.

FRA has extensive roadway worker protection regulations in the Code of Federal Regulations, but regulations cannot protect employees who do not understand, or are not advised of, the working limits and the path of safe egress. It’s that basic. The failure here, once again, is a failure of railroad supervision, of execution, and not one of the absence of proper and effective regulation.

We’ve accomplished a lot, don’t you think, and we’ve only examined 13 minutes of this 57-minute video replay. We have so much more to do, and the best parts are coming up, I promise you, because now we get to listen to the Senators.

David Schanoes

David Schanoes is Principal of Ten90 Solutions LLC, a consulting firm he established upon retiring from MTA Metro-North Railroad in 2008. David began his railroad career in 1972 with the Chicago & North Western, as a brakeman in Chicago. He came to New York 1977, working for Conrail’s New Jersey Division. David joined Metro-North in 1985. He has spent his entire career in the operating division, working his way up from brakeman to conductor, block operator, dispatcher, supervisor of train operations, trainmaster, superintendent, and deputy chief of field operations. “Better railroading is ten percent planning plus ninety percent execution,” he says. “It’s simple math. Yet, we also know, or should know, that technology is no substitute for supervision, and supervision that doesn’t utilize technology isn’t going to do the job. That's not so simple.”

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