New York CNN  — 

The nation’s major freight railroads have long desired to have only one crew member, a lone engineer, in the cab of their locomotives. And that desire hasn’t changed despite the derailment of a Norfolk Southern train on February 3 that released toxic chemicals into the air, water and soil of East Palestine, Ohio, that is still being cleaned up.

But that accident very well may have ended the railroad’s chances of getting that one-person crew goal.

The rail safety legislation, introduced in Congress Wednesday with bipartisan support, would include a prohibition on single-person crews. There is no such existing law or federal regulation requiring both an engineer and a conductor to be on a train. Instead, it is only labor deals with the Brotherhood of Locomotive Engineers and the transportation division of the Sheet Metal, Air, Rail, Transportation union (SMART-TD), which represents the conductors, that require at least one member of each union in the locomotive’s cab.

The Association of American Railroads confirmed that its position in favor of one-person crews has not changed. It believes it will be more efficient, and just as safe, to have engineers responding to problems with trains by driving along tracks in trucks rather than riding in the cab of the locomotive.

“The position on crew size has not changed. Railroads have been clear that they support fact-driven policies that address the cause of this accident and enhance safety,” said an AAR statement. “As we continue to review this bill, it is clear it includes many of the same wish list items AAR and others have clearly said would not prevent a similar accident in the future, such as the… arbitrary crew size rule. Railroads look forward to working with all stakeholders to meaningfully advance real solutions.”

Union Pacific said the opposition to a two-person crew mandate does not mean the railroads don’t care about safety.

“No data shows a two-person crew confined to a cab is safer, and train crew size should continue to be determined through collective bargaining,” a statement from UP. “Proposed legislation limits our ability to compete in a business landscape where technology is rapidly changing the transportation industry.”

CSX also said it believes the decision on crew size should be decided in collective bargaining, not through legislation, but said it is not currently pursuing a change in crew size. Negotiations between the railroads and unions is not due to start again until 2024, and the railroads historically have negotiated deals that apply across the industry. The other two major freight railroads – Norfolk Southern and Burlington Northern Santa Fe – did not responded to questions about the legislation. But the AAR is the trade group that lobbies on their behalf.

The AAR’s statement did not address the question as to whether that rule is now more likely to pass. But Jeremy Ferguson, president of SMART-TD, said this accident has completely changed the chances of getting the two-person crew requirement written into US law.

“Absolutely,” he said when asked in an interview with CNN Business if he thinks the provision will now pass. “When an incident like this happens, it brings all the issues to light, how unsafe the rail industry truly is. I didn’t think we had any chance before this. The railroads and AAR do a very good job of lobbying in DC. So generally it’s difficult to get people to vote for something like this rule. But sometimes it takes a disaster to drive home the point. Any time you turn the TV on, there’s still an issue. It’s not going away.”

The senators, both Democrat and Republican, sponsoring the rail safety bill say they’re hopeful there is now bipartisan support to change the law.

“Rail lobbyists have fought for years to protect their profits at the expense of communities like East Palestine,” said Sen. Sherrod Brown, the Ohio Democrat. “These commonsense bipartisan safety measures will finally hold big railroad companies accountable, make our railroads and the towns along them safer, and prevent future tragedies, so no community has to suffer like East Palestine again.”

“Through this legislation, Congress has a real opportunity to ensure that what happened in East Palestine will never happen again,” said Sen. J.D. Vance, the Ohio Republican who is a co-sponsor. “We owe every American the peace of mind that their community is protected from a catastrophe of this kind.”

If the law is changed due to the East Palestine derailment, it won’t be the first disaster that changed rules and laws governing trains. In 2013, a runaway Canadian freight train carrying tanker cars of oil crashed in Lac-Mégantic, Quebec, causing a massive fire that killed 47 people and destroyed 40 buildings in the town. Canada responded by changing its law to require two person crews on trains carrying hazardous materials.

But calls to change the law in the United States because of that accident fell on deaf ears.

The derailment risk posed by one-person crews

The fact that there were three employees on the train that derailed in East Palestine — an engineer, a conductor and a trainee — did not prevent this accident from happening.

The National Transportation Safety Board’s initial finding on the disaster was that a fire originally started when a rail car carrying plastic pellets was heated by a hot axle.

After the fire started, the train passed three trackside detectors meant to determine if there is a problem causing overheating. But the first two did not signal a problem, even as the fire raised the temperature more than 100 degrees. The detectors are designed not to alert the crew until there is a 200-degree rise in the temperature detected. Finally the third detector registered a rise in temperature of more than 250 degrees, triggering an alarm in the locomotive’s cab.

The NTSB said the engineer responded immediately to the alarm by applying the brakes in an attempt to stop the train, but the wheel bearing on the car that was on fire failed before he could bring the train to a halt, causing the derailment.

Ferguson said that while the crew could not prevent this derailment from happening, there are an uncounted number of times that they detect a problem and prevent a derailment. He said not having the conductor on the train would miss many of those problems and cause many more derailments.

“When a detector goes off, you stop the train and the conductor can walk back and check if there is an overheating axle and make an immediate decision,” Ferguson said. An engineer is not allowed to get out of the locomotive, even if it’s stopped. Only the conductor can check to see if what the problems is that triggered an alarm.

But if the conductor is driving around in a truck, rather than riding in the cab of the locomotive, it could be an hour or more before the conductor gets there, and the axle might have cooled down. At that point, the conductor might have to send the train back on its way, according to Ferguson, even though the original problem tripping the heat detector — a faulty axle or bearing — is still a problem that could quickly cause a derailment.

“So having a guy wandering around in the truck may cause a derailment,” said Ferguson.

Other potential safety issues from one-person crews

Beyond the problems of this kind, having a second person in the cab can just offer greater attention to detail during long train rides.

“You’ve got two sets of ears and two set of eyes. It always helps,” Ferguson said.

And it also helps in case of a medical emergency. In January, a CSX engineer suffered a heart attack while bringing a freight train into Savannah, Georgia, according to the engineers’ union. The conductor was able to recognize he was in distress, give him an aspirin and to call ahead to have an ambulance waiting for him in the rail yard.

The engineer needed emergency bypass surgery, but survived the heart attack.

“This happens more often than people realize,” Ferguson said. “It’s not necessarily always a heart attack. But having two people up there always pays dividend for the crew members themselves.”

CSX confirmed the incident with one of its engineer having a heart attack occurred in January.

“We commend the heroic actions of all CSX employees who render aid during any medical emergency,” said CSX’s statement.

The importance of labor contract

The fact that the current labor contracts require two crew members is little comfort to the engineers and conductors unions.

They point out that under the Railway Labor Act, they can have a contract that is opposed by some or all of the rail unions imposed upon them by Congress, as happened this past December. While this current contract did keep the provision for two-person crews in place, that’s not necessarily going to be the case in all future contracts, even if the unions continue to make the issue a priority.

Congress generally enacts what is recommended by a panel appointed by the president to propose a deal that hopefully both labor and management can accept. But it might have one or two provisions which are deal breakers for the unions, such as allowing single-person crews.

“Given the wrong president, we could lose this in a hurry,” said Ferguson.

The Federal Railroad Administration is also considering a rule that would require two-person crews. But Ferguson said getting the requirement written into law would be better than a simple regulation. An FRA regulation could be easier to change in a new administration than it would be to get a change in the law.