FRA Touts Record Penalty Collections in 2015

The Federal Railroad Administration (FRA) announced yesterday that it collected a record 75% of civil penalties issued to railroads for violations of federal safety regulations in fiscal year 2015.  As noted in its press release (attached here), the FRA increased its collection rate 6% (over FY 2014), which equates to $15 million collected on $21 million in fines initially assessed.  The $21 million dollar figure represents the total fines for violations resolved in FY 2015, which includes violations from prior years.  However, the amount initially assessed for civil penalties transmitted in FY 2015 is actually higher, at $22.4 million.

Also available from the FRA is the full FY 2015 Enforcement Report, which is attached here.  Noting that its "enforcement push is part of a broader effort to increase railroad safety," a review of the full report indicates that although violation fines were reduced by roughly 25% from their initial penalty assessments, a mere 126 violation reports (of 6,485 issued), were "declined during legal review."  That represents a paltry 1.9% of violations being dismissed by the FRA. 

The numbers of the FY 2015 Enforcement Report clearly bear out the "enforcement push" of today's FRA, indicating the vast majority of violations issued will result in some payment by the entity receiving the violation.

FTA to Assume Safety Oversight of Washington Metro - Not FRA

Secretary of Transportation, Anthony Foxx, announced on Friday that the Federal Transit Administration (FTA), would assume safety oversight authority over Washington's Metro rail operations  (i.e. the Washington Metropolitan Area Transit Authority - WMATA).  Foxx's announcement was addressed to NTSB Chair Christopher Hart, whose agency had recommended USDOT's Federal Railroad Administration (FRA) assume oversight of Metro's transit rail/subway operations.  Foxx's letter to the NTSB explaining the FTA, not FRA, would assume direct safety oversight of Metro, is attached here. 

The NSTB's "Urgent Safety Recommendations" R-15-31 and R-15-32, which recommended FRA safety oversight, are also attached.

 

Until this breaking announcement,  responsibility for safety oversight of Metro's operations was held by the Tri-State Oversight Committee (TOC), a "State Oversight Agency" established under 49 CFR 659, whereby transit rail safety oversight is devolved from the FTA to state oversight organizations. Like the WMATA itself, which is a tri-partite compact of the governments of the District of Columbia, Maryland & Virginia, the TOC is comprised of representatives from those jurisdictions, and collectively charged with overseeing Metro's rail transit system.

 

Following recent mishaps, including a January 2015 tunnel fire which caused one fatality, both Metro's safety practices and the TOC were audited by the FTA.   Calling the current TOC "ineffective" and lacking the "technical capacity and enforcement authority to provide the level of oversight that is needed," Foxx nonetheless concluded the federal FTA had the capability and authority to assume safety oversight for Metro, rather than the FRA.  FTA now takes over direct oversight of Metrorail, which includes the ability to address safety deficiencies, and require WMATA to correct safety deficiencies and address an existing Corrective Action Plan between Metro and FTA.  

 

According to Foxx's letter, the direct FTA safety oversight of Metrorail will exist until a more effective and "fully capable" State Safety Oversight organization (than the current TOC) is established by DC, Maryland & Virginia.

 

Coast Guard to Suspend El Faro Search - NTSB to Lead Investigation

At a joint press conference this afternoon, the Coast Guard announced its plans to suspend its search efforts related to the loss of the El Faro container ship, after 7 days of active search efforts.  According to Coast Guard officials, the Coast Guard never had any direct contact with the missing vessel, but was only provided its approximate position at the time of the last contact between the vessel and the owner, TOTE Maritime.  Attempts to make contact with the ship by Air Force Hurricane Hunter Aircraft and other vessels in the general vicinity of the El Faro when it reported loss of power were unsuccessful.

 

 

 

 

 

 

The NTSB also announced that although both it and the Coast Guard have authority to conduct marine casualty investigations, the NTSB would be the lead investigative agency and that under its investigative procedures, it would determine probable cause of the accident.  "Parties" to the NTSB investigation were named as the Coast Guard, the American Bureau of Shipping, and TOTE Maritime. 

 

A link to the NSTB page detailing its on-scene efforts for the investigation is attached here.

House Bill Would Extend PTC Deadline, While Shippers Seek to Force Rail Carriers to Carry TIH/PIH cars

First of all . . Welcome to the new format of "Transportation Law Today" which has been in hiatus for few months, but the blog is back and thanks for your patience.

 

House Bill, H.R. 3651, the "Positive Train Control Enforcement & Implementation Act of 2015" introduced by T&I Committee Chairman Bill Shuster (R-PA), with at least 76 sponsors, finally offers a vehicle to address the looming 12/31/15 deadline for Positive Train Control implementation.  The Act would extend the implementation deadline three additional years, or until 12/13/2018, with the potential for a one-time, discretionary extension of an additional 12 months if the Secretary of Transportation determines the criteria for such an extension in the Act are met.

 

This bill would extend the current congressionally-mandated deadline for PTC implementation, a development virtually all stakeholders recognized was necessary to prevent severe fines for noncompliant railroads by the FRA.  An extension also addresses the threatened cessation of rail service by carriers of Toxic/Poisonous by Inhalation (TIH/PIH) materials, and passenger traffic over non-compliant freight rail networks whose tracks are used by Amtrak and commuter railroads.

 

In a related development, TIH/PIH shipper associations the American Chemistry Council, the Chlorine Institute, and the Fertilizer Institute, have filed both a lawsuit against the Class I railroads in U.S. District Court in Washington, as well as Petition for Declaratory Order before the Surface Transportation Board.  Both the suit and the STB Petition seek rulings that railroads cannot embargo, or fail to transport, chemical shipments after 12/31/15 if PTC is not yet implemented, but rather, the statutory Common Carrier Obligation of 49 USC 11101 requires the railroads to transport the cars. 

 

The statutory extension of H.R. 3651 would eliminate both the enforcement deadline, as well as the threat of embargoed chemical & passenger traffic.

 

At present the stakes are still high as the PTC deadline is not yet resolved, however, with the introduction of H.R. 3651, at least path to an extension finally exists.

FRA Publishes Train Securement Rule

The Federal Railroad Administration (FRA) published a proposed rule today covering the securement of unattended train equipment, largely codifying its Emergency Order 28 issued in 2013. Emergency Order 28 was issued in response to the Lac Megantic train disaster in Quebec, where an unsecured train carrying crude oil rolled down grade, derailed, and exploded in the Canadian town. See our prior posts on that topic here and here.

Today's NPRM, and press release, explain the additional requirements for securing and attending crude oil trains, and others carrying poisonous by inhalation materials (PIH). The proposed rule was developed in collaboration with industry via the Rail Safety Advisory Committee. Written comments in response to the NPRM are due November 10, 2014.

Maryland LNG Export Terminal Clears Another Hurdle

The State of Maryland has granted a key approval for the controversial proposed Liquid Natural Gas (LNG) terminal at Cove Point in Southern Maryland. The action by Maryland's Board of Public Works, which consists of Governor, Martin O'Malley, the state Comptroller, and Treasurer, is another step toward completion of the export terminal. The three member Board actually approved a permit for Virginia-based Dominion to build a pier in the Patuxent river to allow construction materials to be moved by barge for construction of the terminal. Final approval of the project still rests with the FERC.

The Cove Point project is controversial, as noted by the Baltimore Sun in its coverage of yesterday's hearing and approval, which occurred after more than 2 hours of testimony before the Board. The Cove Point project also underscores the unresolved status of hydraulic fracturing in mountainous, and economically challenged, Western Maryland. Maryland has not approved fracking in the state, whereas neighbors Pennsylvania and West Virginia are in the midst of a major energy boom from fracking activity.

Maryland is currently under a moratorium for fracking permits/drilling pending a report expected this fall by an Advisory Commission set up by O'Malley. Maryland's reluctance to permit gas development in Western Maryland, or at least its cautious approach to the process, sets up an interesting situation where natural gas produced in surrounding states may be exported by a terminal in Maryland, even though Maryland has not yet permitted hydraulic drilling within its borders.

Foxx and 11 Former DOT Secretaries Call for Long Term Infrastructure Funding

With a short-term fix to the looming expiration of funding for the Highway Trust Fund expected shortly, USDOT Secretary Anthony Foxx, and 11 former USDOT Secretaries, have issued an "open letter" to Congress, urging a long-term solution to transportation infrastructure funding. The open letter is attached here.

Foxx and his predecessors emphasize that the expected short term funding does not "fix" America's transportation system. Noting that the USDOT Secretaries have lead the department for 35 years under 7 presidents, they write: "Suffice it to say we've been around the block. We probably helped pave it." The Secretaries also stated, "So it is with some knowledge and experience that we can write: Never in our nation's history has America's transportation system been on a more unsustainable course."

Other highlights from the open letter:

"This is no way to run a railroad, fill a pothole, or repair a bridge. In fact, the unpredictability of when, or if, funding will come has caused states to delay or cancel projects altogether."


"America needs to break this cycle of governing crisis-to-crisis, only to enact a stopgap measure at the last moment. We need to make a commitment to the American people and the American economy."

"Until recently, Congress understood that, as America grows, so must our investments in transportation. And for more than half a century, they have voted for that principle -- and increased funding -- with broad, bipartisan majorities in both houses. We believe they can, and should, do so again."

Foxx, Rockefeller, Manchin & Rahall Call for Infrastructure Funding at W.Va. Transportation Summit

Yesterday I had the opportunity to attend the West Virginia Transportation & Infrastructure Summit, hosted by the Discover the Real West Virginia Foundation, in Charleston. I'm not quite up to "live blogging" but here is a "within 24 hours" post on the event. The DRWV Foundation was created by Sen. Rockefeller in 1988 to promote West Virginia as a viable business environment nationally and internationally.

Speaking at the Transportation Summit were U.S. DOT Secretary Anthony Foxx, West Virginia's U.S. Senators (Rockefeller, Manchin) and Ranking Member of the House Transportation Committee, Nick Rahall. Not surprisingly, all endorsed breaking the political logjam in Washington in the interest of regular funding of transportation infrastructure.

Here are some highlights by speaker:

Secretary Foxx:

Secretary Foxx described transportation infrastructure as a legacy to leave to future generations, asking the question whether we will leave behind a stronger transportation system? He referred to 27 "band aid" funding measures in last 5 years in Congress, preventing states from planning long-term projects and maintenance. Referring specifically to the imperiled Highway Trust Fund, the Secretary warned that unless funding is restored, the Department will implement "cash management measures" by August 1, which likely means most states will receive only a half of their allocated highway funds.

The Secretary, with a nod to the West Virginia audience, reminded everyone, the song does not go "country road, can't take me home," and emphasized the solution as the infrastructure package proposed by the President in the Grow America Act. Here is a link to DOT's summary of the Act.

Rockefeller:


After receiving awards from W.Va.'s aviation community, Sen. Rockefeller continued his habit of frank comments since his announced his retirement. He lamented he was "profoundly frustrated" and noted "Today we cannot even fund yesterday's needs."

Manchin:


Sen. Manchin encouraged West Virginia to leverage the current energy boom in the state to work cooperatively with its energy producing neighbors, Ohio and Pennsylvania, much like Texas and Oklahoma have.

Regarding the Highway Trust Fund impasse, he regretted that "politics outpaces policy now" and that a stop gap measure is probably the best that can be expected.

On a humorous note, in referring to the cost of reconstruction in Iraq and Afghanistan, he quipped that if we build roads and bridges in W.Va., "we won't blow them up or burn them down."

Rahall:

Rep. Rahall predicted cooler heads will prevail and likely pass a stop gap measure to save the Highway Trust Fund. He stated there was hope for a longer term bill in the lame duck session after the 2014 election, and emphasized the importance of not letting the HTF go bankrupt.

Civil Penalties Against Deepwater Horizon Well Owners Upheld

The U.S. Court of Appeals for the Fifth Circuit in New Orleans ruled Wednesday that BP and Anadarko, the owners of the well involved in the Deepwater Horizon disaster, were liable for civil penalties for release of oil into the Gulf of Mexico under the Clean Water Act. The Court's opinion is attached here.

Despite noting the Clean Water Act was "not a model of clarity" the Court rejected the arguments by the well owners that oil was not discharged from any vessel they owned, and that they were not responsible for the cause of the spill (i.e. the failed blow-out preventer). The Court concluded that well-owner liability is unaffected by the path the oil takes before reaching the water, and that the Act does not permit the shifting of liability for releases of oil to third parties, regardless of the well owner's "knowledge, intent, or fault" in causing a spill. Although the law does permit shared fault as a mitigating factor in assessing a penalty, there is no exception for third party fault for civil penalty liability for a well owner.

Penalty figures, adjusted for inflation, in effect in 2010 when the spill occurred provide for penalties of up to $32,500 per day or $1,100 per barrel. Just estimating the maximum civil penalty for the spill which lasted from April 22 to July 15, 2010 equals an approximate maximum penalty of up to $5.4 billion, if calculated on the barrels of oil spilled.

USDOT Issues Emergency Crude by Rail Order & Safety Advisory

Yesterday, the USDOT issued an Emergency Order requiring all railroads operating trains carrying Bakken crude oil in the U.S. to notify State Emergency Response Commissions (SERCs) about the operation of the trains through their states. The Emergency Order (Docket No. DOT-OST-2014-0067) requires railroads operating trains carrying Bakker crude containing more than 1,000,000 gallons (approximately 35 rail cars) to notify SERCs of the estimated volumes of Bakken crude, frequency of anticipated traffic, and the route for transport.

Also yesterday, the FRA and PHMSA issued a joint Safety Advisory, "strongly recommending" the use of tank cars with the "highest level of integrity" when transporting Bakken crude. The advisory recommends that older DOT 111 tank cars not be used "to the extent possible." The Safety Advisory does not constitute a ban on the use of older tank cars.

Needless to say, yesterday's actions follow another high profile derailment and fire involving a train carrying crude oil in Lynchburg, VA on April 30th. USDOT's action also follow the recent NTSB crude by rail forum, during which Canadian authorities announced a ban on the use of certain DOT 111 tank cars for hazardous materials in Canada; here is Transport Canada's order. DOT's action on tank cars is not as drastic as the ban by the Canadians, but it appears to be initial steps while more formal rules are being developed.

NTSB Releases Agenda for Crude by Rail Safety Forum

As a follow up to my prior post of March 6, 2014, here is the National Transportation Safety Board's (NTSB) agenda for the April 22-23, 2014 Rail Safety Forum on Transportation of Crude Oil and Ethanol by rail.

The public meeting will be held at NTSB's Washington HQ and will also be available via webcast. Speaking at the meeting will be researchers, crude oil and ethanol shippers, tank car builders, rail carriers, emergency responders, and federal regulators. The presentations will cover current and proposed safety initiatives, including attempts to reduce the consequences of accidents involving crude and ethanol via tank car design, operating practices, and emergency preparedness.

Supreme Court Rules Abandoned Rail Line Owned by Landowner not Government

Yesterday, the U.S. Supreme court in Marvin Brandt Revocable Trust et al. v. United States (slip opinion attached here), ruled that a Wyoming landowner was the owner of a former railroad right of way which had been formally abandoned.

This case, and the somewhat colorful opinion authored by Chief Justice Roberts, could potentially complicate Rails-to-Trails systems, and the burgeoning cottage industry of land owners seeking compensation from rail trail owners/operators for taking of their land.

The Court's decision yesterday is fairly straightforward: holding that a Wyoming landowner, whom "patented" (i.e. acquired) land from the federal government, subject to certain easements, including a rail road right of way easement, owned the land under the former rail line after it had been abandoned (via a formal process before the Surface Transportation Board).

Citing a 1942 case, Great Northern R. Co. v. United States, 315 U.S. 262 (1942), the Court stated "the government loses ... today, in large part because it won when it argued the opposite before this Court more than 70 years ago." The Government had argued in the Great Northern case, that under a 1875 law, railroads granted land by the government (after 1875) acquired only an easement in the land for railroad purposes. The conclusion then is fairly elementary property law, once the use for which the easement was granted ceased, the easement itself ceased to exist. Justice Roberts, joined by all other justices save Justice Sotomayor whom dissented, rejected the argument that the government retained any implied interest in the land (other than an easement) after the 1875 land.

This decision is also notable because it is an interesting opinion to read, and that is saying a lot when the subject matter is abandoned railroad rights of way and property easements. For example, in recounting the history of the former rail line, Justice Roberts cites to the original rail operator, the Laramie, Hahn's Peak and Pacific Railroad (LHP&P), once touted as the "one of the most important railroad systems in this country," as termed by locals the "Lord Help Push and Pull" or "Late, Hard Pressed, and Panicky." Needless to say, the LHP&P did not have an illustrious history as a railroad.

The key distinction pointed out in this case is how the federal government conveyed land for railroad purposes prior to and after 1875. Much of the land granted before 1875 contained more land ownership interest in the railroads than mere easements, whereas after 1875, most land granted by the government was the use of the land for a railroad, i.e. an easement only, rather than an ownership interest.

This distinction may be significant as more and more cases are brought against rail trail entities by owners of adjacent lands claiming ownership of the rail bed and right of way after the rail use was abandoned.

NTSB Schedules Crude/Ethanol by Rail Safety Forum for April

It seems as though I may need to rename this blog "Crude by Rail Today," but the news continues to pour in for this hot topic in transportation safety.

Today, the NTSB announced it will hold a two-day public forum at its Washington, DC headquarters on April 22-23, 2014. The forum "Rail Safety: Transportation of Crude Oil and Ethanol" will cover DOT-111 tank car design, construction and crashworthiness, rail operations and risk management strategies, emergency response challenges, and the ever-popular federal oversight.

The Board states a detailed agenda is forthcoming and will be available on the NSTB web site, www.ntsb.gov.

Railroads to Adopt Voluntary Crude By Rail Safety Initiative

A voluntary safety initiative addressing shipment of crude oil by rail has been announced by the USDOT and the Association of American Railroads (AAR). Under the voluntary initiative, major U.S. Railroads will agree to the following steps, outlined in the attached letter from USDOT Secretary, Anthony Foxx:

1. Effective March 25, 2014, one additional internal rail test (i.e. ultrasonic testing) will be conducted each year, and at least two track geometry inspections per year, on track over which crude traffic runs.

2. Route analysis requirements under 49 CFR 171.820(c) will apply to trains transporting 20 or more loaded tank cars carrying petroleum crude oil, which are to be termed "Key Crude Oil Trains."

3. Key Crude Oil Trains with at least one USDOT 111 type tank car, not meeting AAR Circular CPC-1232 requirements, will be restricted to 40 mph, effective July 1, 2014 or before.

4. By July 1, 2014 the participating railroads will have installed wayside defect detectors to detect overheated bearings at intervals of 40 miles, over which Key Crude Oil trains operate.

5. AAR and the railroads will develop an inventory of emergency response resources along the routes over which Key Crude Oil Trains operate.

6. Railroads are to agree to jointly fund $5 million for training emergency responders to rail accidents involving crude oil shipments.

PHMSA Cites 3 Shippers for Misclassified Crude Oil

As part of the on-going "Operation Classification" effort of the USDOT's Pipeline and Hazardous Materials Safety Administration (PHMSA), the agency recently announced it had cited three crude oil shippers for allegedly misclassifying crude oil shipped. According to PHMSA's announcement of the Notices of Probable Violation, the agency charges that 11 of 18 samples of crude being loaded onto rail cars were not assigned the proper packing group under the Hazardous Materials Regulations.

The Agency also notes the expansion of the scope of "Operation Classification" to gauge compliance with vapor pressure characterization, corrosiveness, and concentration of entrained gases in materials.

My prior post earlier this year, explains the creation of "Operation Classification" following several accidents involving crude oil shipped by rail.

National Freight Advisory Committee to Meet February 6, 2014

The National Freight Advisory Committee will hold its latest meeting on February 6, 2014, from 1:00 p.m. to 5:00 p.m.(EST). A link to the agenda, including the ability to pre-register for Webinar access, is attached here. Web registrants are to complete their registrations by February 5.

The main topic of this meeting is for the NFAC members to prepare a joint comment on the USDOT's designation of the Primary Freight Network. The Primary Freight Network Designation draft has been prepared by the Federal Highway Administration, and the comment period is currently open until February 15, 2014 under docket FHWA-2013-0050,.

Created under MAP-21 (Moving Ahead for Progress in the 21st Century Act), the NFAC advises the USDOT Secretary on implementing MAP-21's call for a national freight network, developing a national freight strategic plan, and other things including legislative recommendations.

PHMSA Issues Safety Alert for Crude Oil Shipment Classification

The USDOT's Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a Safety Alert on January 2, 2014 following recent crude oil fires from train accidents where Bakken crude oil was involved. The Safety Alert is attached here. The Agency states that initial tests from the recent North Dakota accident involving two BSNF trains, and Lac Megantic Quebec in June 2013, indicate Bakken crude "may be more flammable than traditional heavy crude oil."

Yesterday's Safety Alert also encompasses the ongoing "Operation Classification" effort of PHMSA and the FRA, where the agencies have been conducting unannounced field tests to verify proper classification of crude oil shipments. In particular, the Agencies are concentrating on "Packing Group" classifications of shipments; i.e. does the chemical composition of the oil actually in a tank car reflect the packing group classification (and placard) on the car. Packing Groups are the defined classes of hazardous materials under the Hazardous Materials Regulations (HMR), which classify a material's flashpoint and boiling point, among other things.

PHMSA states that as "Operation Classification" is an on-going effort, it will share its sampling results of Bakken crude and oil from other locations. However, PHMSA reminds the offerors of crude oil that they should not delay their own testing (and classification under 49 CFR 173.22) of oil shipped while PHMSA's effort is underway.

2013 Year in Review from Transportation Law Today

2013 will likely be remembered for several significant transportation events, including the Lac Megantic and Metro North rail accidents. As I write today on New Year's Eve an active fire from a train crash and derailment involving crude oil is taking place in Casselton, North Dakota (here is the NTSB's initial press release). The event in South Dakota highlights other major trends from 2013: positive train control and the carriage of crude oil by rail. Finally, a review of 2013 would not be complete without a mention of the regulatory and political environment, significantly because some-what bi-partisan WRRDA bill (which many had great hopes of passage in 2013), will wait until 2014.

MAJOR RAIL ACCIDENTS

The June 2013 accident which destroyed a significant portion of the town of Lac Megantic, Quebec, and claimed over 40 lives, spurred quick action by Canada's rail regulator, and reciprocal action by the FRA. My prior posts explained some of those actions here, and here.

Following Lac Megantic efforts were made to address the classification of crude oil carried by rail, which may again gain more attention given the on-going situation in North Dakota. Crew size was another issue in Lac Megantic, which the regulators also addressed in the context of securing haz mat trains.

The December 1 Metro-North accident in New York city also raised crew size questions, as well as positive train control implementation. See my prior post here.

Although neither the Lac Megantic nor Metro-North accidents have had their investigations concluded, information released indicates likely causes: failure to secure the train on a grade (Lac Megantic), and crew error in Metro-North. Coming in 2014 will be the Rail Safety Advisory Committee recommendations following Lac Megantic, and possibly, action on the Commuter Rail Passenger Safety Act proposed shortly after the Metro-North accident.

POSITIVE TRAIN CONTROL

The state of Positive Train Control, and the current 2015 deadline for implementation, will continue to be a hot topic in the coming year. Even though the GAO acknowledged that many railroads could not meet the 2015 deadline, it seems unlikely any wholesale moving of the deadline will occur given recent high profile train accidents. My best prediction is that some case by case relief for portions of PTC systems or tracks may be granted in an effort to get operational as much as possible by 2015.

CRUDE BY RAIL

I expect growing regulatory and public attention to crude by rail shipments, again highlighted by what is currently happening in North Dakota. Crude by Rail, as with Haz Mat by rail, is clearly a safe mode of transport given the huge volumes moved without incident. However, when accidents occur they tend to be memorable given the product being moved. On-going efforts from the RSAC on operational issues, as well as a renewed focus on tank car safety standards will certainly continue.

WRRDA I HARDLY KNEW YA

Now to the blue and brown water worlds... the continuing fate of the now-termed WRRDA bill and its path through a divided congress will continue into 2014. The bill's remedy for the monumentally over-budget Olmstead Lock and Dam project, aka the "Kentucky Kickback" seems to have survived some initial hype when the deal emerged as part of the government shut-down end. Both houses of Congress have appointed conferees to iron out differences between the Senate bill passed in May 2013, and the later house bill.

Is WRRDA an example of a deeply divided congress prioritizing infrastructure investment? Perhaps, but it also may be low hanging fruit in the sense that WRRDA is what could be accomplished in a bi-partisan way with relatively little controversy. In any event, the bill has yet to be passed by congress, which is likely to happen in early 2014.


Thanks to our readers and best wishes to all for safe and joyful New Year in 2014.

- Paul J. Loftus, December 31, 2013

EPA to Fund Air Quality Improvement Projects at Ports

The Environmental Protection Agency (EPA) has published a Request for Proposals to allocate $4 million for air quality projects at ocean and inland ports under the Diesel Emissions Reduction Act (DERA). The RFP homepage and related information are attached here.

The EPA anticipates awarding funds to public port authorities with jurisdiction over transportation or air quality at ocean or inland ports. Although private entities are not eligible, they may partner with eligible port authorities on projects. EPA, according to the RFP will fund, at various percentage levels, the following types of projects:

- Exhaust Control Technologies
- Certified Engine Upgrades
- Engine Idle Reduction Technologies
- Certified Engine Repower
- Vehicle Replacement (non-road diesel vehicles/drayage trucks)
- Clean Alternative Fuel Conversions

The potential funding does not apply to already mandated emission reductions for certain locomotive and marine engines. (see RFP at pg. 2). Proposals are due February 13, 2014.

NY Rep. Proposes Funding for PTC in Wake of Metro-North Accident

Positive Train Control, and the current statutory deadline for railroads to implement the technology of December 31, 2015, is once again front and center news following the December 1 Metro-North commuter rail accident. The accident, apparently caused by a speeding train, caused 4 deaths and dozens of injuries.

Congressman Sean Patrick Maloney (D-NY) has proposed new legislation titled the "Commuter Rail Passenger Safety Act" in a recent press release. The proposed legislation has not been released, but is intended to assist commuter rail lines in implementing PTC.

Specifically, the proposed law would provide access to Federal Railroad Administration loan guarantees under its Railroad Rehabilitation & Improvement Financing program (RRIF), which provides both direct loans and loan guarantees. Also, the law proposes reauthorizing the Railroad Safety Technology Grant Program, which fell victim to the recent budget battles and expired on October 1, 2013.

Other news related to the Metro-North accident, is the NTSB's revocation of "Party Status" to the investigation of the union which represents the train's engineer. The NTSB removed the Association of Commuter Rail Employees (ACRE) from the investigation for discussing details of the on-going investigation, a violation of the NSTB's "Party Agreement." This NTSB press release explains.

Prior the recent Metro-North accident, there seemed to be consensus that not all railroads would meet the December 2015 PTC deadline, with the GAO recommending that Congress permit the FRA to grant case-by-case extensions and approve alternative technologies (see my post of 9/17/13 on the GAO's report here). In the post Metro-North environment, the question is whether significant extensions to the current PTC deadline will be granted or not.