By: Rick Shapiro, Attorney
Shapiro, Cooper, Lewis & Appleton Law Firm
Focus on Federal Regulations and Railroad Historical Knowledge of Health Dangers
There is a growing body of evidence that long-term railroad worker exposure to diesel exhaust fumes can lead to a condition called “diesel asthma” a form of COPD, and additional evidence shows an increased incidence of lung cancer rates among such railroad workers/employees. Railroad worker injury claims against their employer-railroads fall under a federal act called the Federal Employers Liability Act. This article (Part 2 of this series of articles) discusses long term railroad worker diesel fume lung disorders and covers new federal regulations that are clamping down on excessive railroad locomotive engine diesel fumes, as well as historical knowledge and legal cases against railroads such as CSX and Norfolk Southern over the last several decades.
What is diesel smoke or diesel exhaust fumes?
Diesel exhaust, also called diesel smoke or diesel fumes is a chemical mixture containing literally hundreds of compounds, including sulfur dioxide, nitrogen oxides, poly-systematic hydrocarbons, benzene, and many other compounds. Many of these individual particulates are known carcinogens, and have been known cancer-causing agents for over 30 years. In the railroad industry, diesel fuel runs nearly all locomotives, and has since the 1960’s. When the diesel fuel is combusted, the chemicals change. They are changed into a gaseous state, and they are carried through the air by what are known as particulates. Particulates are the part of diesel exhaust fumes and diesel smoke that can be seen. But some particulates are so small that they cannot be seen and some of these get into the tiniest part of the lung tissue, deep in the lungs. Some of these dangerous chemicals can damage, inflame and destroy lung tissue. Also, the irritation over time can cause “hypersensitivity” disorders.
Federal regulation of diesel exhaust fumes and diesel smoke at railroads
In current litigation, it is common for railroad defense lawyers and their experts to claim that the railroad worker has no evidence any dangerous level of diesel exhaust fumes was in their workplace or engine cab. In some cases, the railroads have contended that the worker has not shown diesel fumes ever exceeded some permissible exposure limit. The problem for the railroad position is that there is no permissible exposure limit for several of the dangerous toxic constituents or particulates found in diesel exhaust fumes. In other words, a number of the individual constituent particles in typical diesel fumes are known carcinogens. There is no known “safe” level of exposure to carcinogens.
It is the government, not railroad worker lawyers, who have been discussing the cancer-causing constituents in diesel exhaust fumes. The occupational safety and health administration (OSHA) has required sellers of toxic substances to provide written warnings since 1985, and these documents are called material safety data sheets (MSDS). Employers are required to make MSDS’s known to workers. The sellers of diesel fuel have disclosed that particulates may be cancer-causing agents and exposure may cause serious lung diseases since the early 1990s. The railroads have received these MSDS documents since the 1990s, but they knew of the dangers of long-term exposure to diesel fumes decades earlier.
In calendar year 2000, the Clinton administration United States Environmental Protection Agency (EPA) stated in a news release:
“Anyone who has ever driven behind a large truck or bus is familiar with the smell of diesel fuel and the clouds of thick exhaust emissions. Today’s action will dramatically cut harmful air pollution by up to 95 percent. New trucks and buses run as cleanly as those running on natural gas.” said EPA Administrator Carol M. Browner…One huge benefit of today’s action will be the greatest reduction in harmful emissions of particulate matter, or soot, ever achieved from cars and trucks.”
“An older, dirtier diesel vehicle can emit almost eight tons of air pollution each year. EPA has determined that diesel exhaust is likely to cause lung cancer in humans. This action will reduce 2.6 million tons of smog-causing nitrogen oxide emissions each year once the program is fully implemented. Emissions of soot, or particulate matter, will be reduced by nearly 110,000 tons each year. As a result, today’s action will prevent 8,300 premature deaths, 5,500 cases of chronic bronchitis, and 17,600 cases of acute bronchitis in children. It will also avoid over 360,000 asthma attacks and more than 386,000 cases of respiratory symptoms in asthmatic children annually. The action will prevent 1.5 million lost work days, 7,100 hospital admissions and 2,400 emergency room visits for asthma every year. “
In March, 2008, the EPA announced final regulations would take effect relating to railroad locomotive diesel exhaust emissions, explaining the regulations as follows:
Locomotive and marine diesel engines contribute significantly to air pollution in many of our nation’s cities and towns. EPA anticipates that over the next few decades, these engines may account for an even greater share of overall emissions as other emission control programs take effect for cars and trucks and other nonroad emissions sources. Estimates show that, without the emission reductions from this final action, by 2030 locomotive and marine diesel engines would contribute more than 65 percent of national mobile source diesel PM2.5, or fine particulate, emissions and 35 percent of national mobile source NOx emissions, a key precursor to ozone and secondary PM formation.
As of October 10, 2007, air quality data show that about 144 million people live in areas that violate air quality standards for ground-level ozone, also called smog, and about 88 million people live in areas that violate air quality standards from PM. These pollutants contribute to serious public health problems that include premature mortality, aggravation of respiratory and cardiovascular disease, and aggravation of existing asthma, acute respiratory symptoms and chronic bronchitis. Beyond the impact these diesel engines have on our nation’s ambient air quality, exposure to diesel exhaust has been classified by EPA as being likely carcinogenic to humans. Children, people with heart and lung diseases, and the elderly are most at risk.
Locomotive and marine diesel emissions reductions will particularly benefit those who live, work, or recreate in and along our nation’s coastal areas, rivers, ports, and rail lines. Such reductions will also have beneficial impacts on visibility impairment and regional haze, as well as reducing crop damage and acid rain.
The finalized requirements cover all locomotives and many marine diesel engines already subject to EPA emission standards, as follows:
Locomotives: With some limited exceptions, the regulations apply to all diesel line-haul, passenger, and switch locomotives that operate extensively within the United States including newly manufactured locomotives and remanufactured locomotives that were originally manufactured after 1972.
The new 2008 EPA final rule was further summarized by EPA as follows:
Locomotive engines are significant contributors to air pollution in many of our nation’s cities and ports. Although locomotive engines being produced today must meet relatively modest emission requirements set in 1997, they continue to emit large amounts of nitrogen oxides and particulate matter (PM), both of which contribute to serious public health problems.
In May 2004, as part of the Clean Air Nonroad Diesel Rule, EPA finalized new requirements for nonroad diesel fuel that will decrease the allowable levels of sulfur in fuel used in locomotives by 99 percent. These fuel improvements will create immediate and significant environmental and public health benefits by reducing PM from existing engines.
In March 2008, EPA finalized a three part program that will dramatically reduce emissions from diesel locomotives of all types — line-haul, switch, and passenger rail. The rule will cut PM emissions from these engines by as much as 90 percent and NOx emissions by as much as 80 percent when fully implemented.
This final rule sets new emission standards for existing locomotives when they are remanufactured–to take effect as soon as certified systems are available, as early as 2008. The rule also sets Tier 3 emission standards for newly-built locomotives, provisions for clean switch locomotives, and idle reduction requirements for new and remanufactured locomotives. Finally, the rule establishes long-term, Tier 4, standards for newly-built engines based on the application of high-efficiency catalytic aftertreatment technology, beginning in 2015.
Apparently, the new EPA rules do not set the strict emissions requirements on any engines manufactured before 1972, under a “grandfather” clause, unless the “remanufacturing” clause of the regulation becomes applicable. Of course, the older engines still in operation are likely the worst polluters as well due to a lack of pollution control technology when manufactured.
It is clear that railroads have operated “under the radar” for decades as to the adverse effects of diesel fumes on their own workers, much less the public at large. With the increased EPA attention to all diesel exhaust fume pollution, it appears that the adverse effects of prolonged exposure in railroad workers should gain more attention.
Railroad workers with prolonged diesel exhaust fume exposure (such as over 20 years) and a diagnosis of lung cancer and/or chronic obstructive pulmonary disease (COPD), coupled with medical confirmation of abnormal pulmonary function/breathing tests, should seek information on whether their condition could have been caused by diesel exhuast fume exposure.
How long have railroads known of the dangers?
The nation’s railroads, such as Norfolk Southern, CSX and Amtrak, as well as the other major railroads, participate in a national research and trade organization known as the Association of American railroads (AAR). An affiliated organization is called the medical and surgical section of the AAR, allowing the railroad staff medical doctors to exchange information and have seminars-the physicians met annually as early as the 1930’s. Likewise, there is yet another affiliated organization of the claims representatives of the nation’s railroads, allowing these staff to exchange information and hold educational meetings and seminars. As early as the 1950s, the claim representatives of the railroads were discussing the health effects of diesel exhaust fumes. Historical documents have shown that these doctors and claims representatives discussed railroad worker claims relating to diesel exhaust fumes, and that discussions of the health effects was covered in detail.
In 1955, a railroad industry attorney gave a formal presentation to the major railroad claims representatives. The attorney, Robert Straub, was employed at the time with the Chesapeake and Ohio Railways Company, which was at a later date folded into CSX. The presentation was entitled “potential dangers from exposure to diesel locomotive exhaust.” Referring to the gases that made up diesel exhaust, Straub stated “it appears that continuous or prolonged exposure to atmospheres containing any of the above mentioned gasses in excess of the established maximum could initiate harmful results.” He noted that availability of “atmospheric testing” could help determine the degree of hazard to which workers were exposed. Straub went on to state that he had completed a survey of the majority of the railroads and as of 1955 had found a total of six cases involving diesel fume exposure, and he categorized the jury verdicts as between 18,000 and $19,000. He categorized the payments as relatively unimportant and stated that “from a claim and law standpoint, this field has been relatively unimportant….”
Several years later, in 1961 the same AAR railroad industry organization, the claim agent’s subsection, published an article in its journal mailed nationwide to its members, called The Bulletin (volume 46, number 10), reporting on a notable legal decision involving the Missouri Pacific Railway Co. and a pipefitter’s injury claim against Missouri Pacific. The appeal involved a personal injury verdict in favor of Mr. Sims, a Missouri Pacific pipefitter, and the case outlined that the pipefitter contended that because of alleged insufficient ventilation in the shop, he suffered injuries from inhaling the diesel fumes and gases given off by railroad locomotives. He complained about the harmful effects on his body upon being required to work in a place where diesel fumes were concentrated in large quantities.
In 1965, the nation’s railroad medical doctors had their annual seminar, and the seminar discussions were transcribed. The annual meeting was moderated by Dr. Kaplan, a Baltimore in Ohio Railway Co. staff physician (this railroad was later folded into CSX). The dangers of diesel fumes and the potential association of diesel fumes with cancer was a topic of discussion at the annual meeting.
By 1971, the Occupational Safety and Health Administration was created in the U.S. During the 70s and 80s, OSHA enacted a large number of workplace protective regulations pertaining to respiratory protection, workplace protections in general and the communication to workers of hazards relating to toxic substances.
Around the same time, the National Institute for Occupational Safety and Health (NIOSH) issued what it called Intelligence Bulletin 50 setting forth many of the dangers of diesel exhaust fumes, as established by many peer reviewed scientific and medical studies reporting on adverse health effects of prolonged diesel exposures. A study by NIOSH is typically widely distributed to general industry including railroads.
A review of published legal decisions against railroads
by workers alleging diesel fume lung disease, asthma or Cancers
In 1999, a Georgia appeals court reported on the jury verdict in favor of NS worker Baker against Norfolk Southern Railway Company. Baker had worked as a railroad locomotive engineer for 18 years when he was stricken with naso-pharyngeal cancer (a form of cancer inside the mouth) and he later died. His widow alleged his fatal cancer was caused by prolonged exposure to diesel exhaust from Norfolk Southern’s diesel powered locomotives, and that Norfolk Southern failed to provide a safe place to work in violation of the Federal employers liability act (” FELA”) and he also claimed that the railroad violated the Locomotive Inspection Act, because essentially diesel exhaust fumes were products of combustion and were supposed to be released only outside of the locomotive cab pursuant to 49 CFR 229.43 (a), one regulation under the Locomotive Inspection Act. The appeal involved a verdict in excess of $5 million from the jury, which concluded that Baker was exposed to high levels of diesel exhaust inside the cab, up to six days a week, four to 12 hours a day and that diesel exhaust was the cause of his cancer. It was shown that Norfolk Southern knew by 1985 that various locomotive crews were reporting medical problems and complaining about excessive diesel exhaust. Baker’s exposures were all before 1991, and he had stated before his death that black smoke routinely flooded the engine cab. Baker explained that the engine cabs were usually 20 or 30 degrees warmer than the outside temperature and he had no choice but to open the engine windows, because locomotives at Norfolk Southern at that time were typically oriented for the engineer to operate the engine in the long hood forward position, placing it in front of the engine cab, and the exhaust openings were mounted on the body of the engine, at the top, and this allowed exhaust to trail into the engine cab. There was considerable evidence from a pulmonary expert specializing in diesel exhaust about the connection between Baker’s cancer and the diesel exhaust exposure over the long term. The court also noted that it was appropriate for the jury to consider whether the diesel exhaust fumes were improperly invading the engine in violation of the locomotive inspection act as well as the particular regulation that requires that diesel exhaust only be expelled outside engine cabs. The appeal Court in Georgia agreed that the jury had properly decided the case, but did find a legal error in a jury instruction relating to wrongful death damages, and the jury decision was otherwise upheld on the railroad’s liability for diesel exhaust violations.
In 2003, an Ohio appeal court affirmed a jury verdict in favor of a Norfolk Southern fireman/engineer by the name of Mr. Cutlip, who alleged diesel exhaust fume disease against Norfolk Southern, his employer. He worked for only six months for the railroad in the 1970s, but then was re-hired with Norfolk Southern in the 1980s first as a fireman (similar to a brakeman/conductor worker) and then he was promoted to an engineer. Railroad worker Cutlip offered evidence that the doors of the locomotive cabs were ill fitting and did not have a proper seal, and additionally that there were holes in the engine cab floors that typically allowed diesel fumes inside. Cutlip explained that workers regularly applied various types of tape in an effort to create a seal, but this was not always successful. Cutlip also talked about the long hood forward problem on many locomotives used by Norfolk Southern at the time. He explained that this put the exhaust stack in front of him, causing smoke and fumes to travel back toward the engineer location inside the cab. Cutlip also explained deadheading, a practice by which an engineer would ride in a second engine once he had worked the maximum number of hours in a day, which provided a ride back to a workplace. However, Cutlip explained that this often meant that diesel fumes from the lead engine would trail back to the second engine in which he was located. This railroad worker’s doctor diagnosed him with reactive airway disease (RADS) and/or asthma. His doctors testified about his reduced breathing test results, called pulmonary function tests, and their meaning relating to asthma symptoms, caused by diesel fume exposures.
Cutlip had also smoked during a portion of his lifetime, and had quit in 1990, 7-8 years before the jury trial. His lung doctor stated that a very negligible part of his lung problems were caused by cigarette smoking. One of the doctors testified that smoking can cause emphysema and chronic bronchitis, but that smoking does not cause asthma. The doctor ruled out emphysema based on the pattern of the breathing tests. A second lung doctor, also testified about the connection between smoking and asthma but said that smoking could causing aggravation of asthma symptoms, but that it did not cause asthma. This second lung doctor explained pulmonary function testing in great detail and explained how patients are first tested without bronchodilators and are tested again after having used a bronchodilator. If the patient has medical asthma, the patient will respond to the bronchodilator and the second half of the tests will produce results showing much improved lung function, and the doctors explained that Cutlip responded well to the bronchodilators.
The same lung doctors at his trial admitted that they could not quantify the volume of diesel exhaust fumes to which Cutlip was exposed in the railroad workplace, explaining that clinical doctors normally do not do such things. Also, an industrial hygienist experienced in examining workplace health and safety testified in the Cutlip trial. The industrial hygienist explained the proper procedures and protections that industrial employers can utilize to prevent lung diseases such as diesel exhaust asthma. After a long and thorough analysis of the legal principles, the appeals court in Ohio affirmed the jury’s verdict of $625,000 in favor of Mr. Cutlip.
In December, 2006 a different Ohio appeals court considered yet another jury verdict against Norfolk Southern for Eugene Hager who had a long career with Norfolk Southern and it earlier railroads, who worked first as a mail handler, beginning in 1943, and as of 1971 Hager became a fireman, which was similar to a brakeman position. Hager claimed that he was exposed to many workplace toxic dusts including diesel exhaust fumes. In 1973, Hager was promoted to locomotive engineer, a position he worked until age 61 when he retired at in 1987. Hager had a fairly rare disease called Kartagener’s Syndrome, which makes the fine cilia of the lungs hypersensitive to particulate matter. Hager claimed that his lung disease was aggravated by toxic dusts, including diesel fumes and silica and asbestos exposures. The railroad appealed from a $250,000 verdict in favor of Hager.
Because the Locomotive Inspection Act includes provisions requiring that products of combustion must be exhausted outside the engine cab, Hager also asserted that the railroad was in violation of this specific regulation. The appeals court found Hager’s evidence sufficient on this point, and the court refused to reverse the jury verdict despite the fact that the railroad argued that there was no meaningful evidence to show that the regulation was violated, and NS argued that the regulation did not mean what it said (arguing that the Federal Railroad Administration “informally” permitting some diesel fumes inside the engine cabs).
There have been dozens upon dozens of railroad worker FELA claims filed since 1995 asserting adverse lung disorders caused by diesel exhaust fumes, with many settlements, and other claims winding their way through the nation’s courts.
As information grows about the harmful and carcinogenic agents hitching a ride on the particulates that comprise diesel exhaust fumes, workers and physicians may begin taking a much closer look at the impact of diesel fumes on COPD and decreased lung function arising after decades of such workplace exposures.
[For a discussion of basics of how diesel exhaust fumes affect the lungs, for information about diesel induced cancer studies, and other similar information, see Part 1 of this article series by the author.]