FRA Issues Locomotive Safety Standards - Clarifies Diesel Exposure Regulation/Alters Inspection Requirements

The Federal Railroad Administration published its final rule updating Locomotive Safety Standards on April 7, 2012. The Rule becomes effective June 8, 2012.

Among the items of interest is the Agency's interpretation of 49 CFR 229.43, covering diesel fumes in locomotive cabs, and FRA's extension of the time intervals for periodic locomotive inspections.

The previous 92-day interval for comprehensive locomotive inspection/maintenance has been doubled to 184 days for units with "microprocessor-based control systems with self-diagnostic capabilities." These more modern units are designed for 184-day maintenance, whereas the 92 day standard reflected the manufacturer-recommended maintenance interval in 1980.

Regarding diesel exhaust in cabs, the FRA did not alter section 229.43, which also dates from 1980. Under 229.43(a): "Products of combustion shall be released outside the cab and other compartments. Exhaust stacks shall be of sufficient height or other means provided to prevent entry of products of combustion into the cab or other compartments under usual operating conditions."

In its rule notice, the FRA interpreted 229.43 as such:

"However, FRA did not intend for sec. 229.43 to prevent any and all diesel exhaust from being present in an occupied locomotive cab. It would be impracticable to try to eliminate all diesel exhaust in the locomotive cab." 77 FR at pg. 21323.

and,

"... FRA does not believe that is is possible to prevent the re-entry of diesel exhaust into the locomotive cab through windows or ventilation system intakes, and has never enforced the existing regulation in such a manner." 77 FR at 21323.

This clarification that FRA does not enforce de minimus exhaust in cabs as a violation of section 229.43 is helpful, but, because the actual language of 229.43 has not been changed, it is still entirely possible that a railroad could be liable for the presence of exhaust in cabs, absent negligence by the railroad or a specific locomotive defect, because the regulation simply prohibits exhaust from cabs "under usual operating conditions."

The unanswered question is whether this new FRA interpretation of 49 CFR 229.43 has any impact on courts considering whether the presence of diesel exhaust in a locomotive cab, in and of itself, constitutes a violation of the Locomotive Inspection Act (LIA).