CSX and New York settle, with mixed results for rail safety.

After an investigation of railroad safety by New York Attorney General Eliot Spitzer, CSX Transportation, Inc., has agreed to pay the state $1 million to resolve claims that the railroad endangered the public at grade crossings in that state.

As part of the settlement agreement, which expires in three years, the railroad promised to repair warning systems within 24 hours when possible, notify local law enforcement of malfunctions, and improve testing and inspection of crossing equipment. It also agreed to pay $500,000 to local law enforcement agencies that must provide protection at grade crossings where CSX is unable to fix malfunctioning warning systems within 24 hours.

In the settlement agreement, Spitzer alleged that CSX had "maintained conditions that had the potential to endanger public safety" and had "failed to comply with state and federal laws by its repeated failure to timely repair warning systems, to keep adequate maintenance records, to make required reports, and to take steps to provide notification to local law enforcement agencies of crossings with deactivated warning systems."

For its part, CSX contended that "federal law preempts any state action pertaining to the subject matter" of Spitzer's investigation and said it "neither admits nor denies" the allegations and "denies all wrongdoing" regarding its grade crossings.

Spitzer's investigation was sparked by a February 2004 accident in which an elderly couple was killed after a CSX train struck their car at a crossing near Rochester. Before the accident, the crossing's gates and lights had malfunctioned. Instead of promptly repairing them, CSX workers disabled the warning system. Although CSX trains are required by federal law to stop before entering such crossings and personnel on the ground must flag motorists, the train that killed the couple did not stop, and no one was stationed at the crossing.

Spitzer's investigation found that at more than 300 crossings in the state with malfunctioning warning systems, CSX took longer than 24 hours to make repairs. It also found that warning systems at over 40 New York crossings malfunctioned for more than two weeks before CSX repaired them.

According to statistics from the Federal Railroad Administration (FRA), more than 3,000 accidents occurred at U.S. railroad grade crossings in 2004, resulting in over 300 deaths. Five people died in 34 accidents in New York state; 14 of the accidents and three of the deaths involved CSX trains. Nationwide, 58 people died at CSX grade crossings in 2004, six more than in 2003.

After the accident near Rochester, the FRA, which periodically inspects railroad grade crossings, found that CSX violated safety regulations at that crossing and two others nearby and fined the company $298,000. The agency will also fine the railroad for violations at a dozen other CSX crossings in New York, an FRA spokesman said.

But because oversight of railroad crossings is shared among local, state, and federal agencies, and no federal agency is required to investigate all grade-crossing accidents, safety is often compromised, said Pamela O'Dwyer, a Tennessee lawyer who has represented plaintiffs in cases involving railroad crossing safety.

"Though nothing stops railroads from upgrading any crossing with their own monies, they often wait for states to determine which grade crossings may be in need of improvement," O'Dwyer said. "States then allocate taxpayer monies to the railroads to upgrade those crossings, after which the railroads are responsible for inspecting, testing, and maintaining the warning systems."

Much of the money that states allocate for crossing upgrades comes from the federal government. In such cases, the Federal Railroad Safety Act preempts state law claims. A railroad's installation of minimal warning devices--such as nonelectronic crossbucks signs--can create a shroud of immunity, O'Dwyer said.

In the case of the New York settlement, she said, much of what CSX agreed to do is what railroads are already required to do, including having personnel stationed at crossings where active warning devices are out of service.

"The settlement agreement appears to be an expedient way to avoid the attorney general's continuing investigation into the railroad's practices in New York," O'Dwyer said. "It appears from the facts of the accident near Rochester that CSX had failed to repair a crossing warning device and was required to flag the crossing. By paying into a fund for local law enforcement, they're saying, 'OK, shut up about any accidents we have already caused; we'll give notice and pay you to flag in the future.'"

In February, Sen. Charles Schumer (D-N.Y.) introduced legislation in Congress that would fine railroads at least $1 million when fatal accidents occur at crossings as a result of safety violations. The bill would also require the FRA to investigate all fatal crossing accidents.