Enactment of SB 785 Clears Caltrain Electrification for Design-Build

California Governor Edmund G. Brown, Jr., has signed California Senate Bill (SB) 785. As my colleague Nancy Smith has observed, enactment of SB 785 is a major step forward for the State of California, because now many more state and local agencies can use design-build.

One of the immediate benefits of this change is that the much-anticipated Caltrain electrification project will be able to proceed as a design-build procurement.  The authority of the Peninsula Corridor Joint Powers Board (JPB) to issue design-build contracts was slated to expire at the end of this year, but SB 785 extends that authority until 2024.

The Peninsula Corridor Electrification Project is a key component of the Caltrain modernization program. It will electrify the Caltrain Corridor from San Francisco’s 4th & King Station to approximately the Tamien Caltrain Station and convert the Caltrain fleet from diesel-hauled passenger coaches to electric multiple unit train sets. In conjunction with the project, the JPB plans to increase frequency of service up to six trains per peak hour per direction by 2019.

In 2019 service between San Jose and San Francisco will utilize a mixed fleet of EMU’s and diesel locomotives. Diesel locomotives will be phased out (or used on the lighter density service between San Jose Diridon Station and Gilroy) as the EMUs come one line.

“The electric trains will enhance capacity and allow the system to deliver cleaner, quieter, shorter trip times and, potentially, more frequent service for the corridor,” PCJPB said.  “It will allow Caltrain to almost double the system’s forecasted daily ridership by 2040. Greenhouse gas emissions will be reduced by 177,000 metric tons, automobile vehicle miles traveled will shrink by 619,000 miles daily, and billions of dollars in economic value will be created, including nearly 100,000 new jobs.”

In September 2013, the JPB approved the use of the design-build contracting approach for the electrification project. A Request for Proposals (RFP) will be issued January 2015. A contract award is expected in fall 2015.

The Maryland "Purple Line" Transit Project Releases its Final Request for Proposals

On July 28, 2014, the Maryland Transit Administration (MTA) and Maryland Department of Transportation (MDOT) issued the final request for proposals for a public-private partnership to design, build, finance, operate and maintain the “Purple Line” light rail transit project using an availability payment approach.  The Purple Line is a 16-mile route extending from New Carrollton in Prince George’s County to Bethesda in Montgomery County, with 21 stations and three links to the Washington DC, Metro and MARC commuter train systems.  The Purple Line has estimated project value of $2.37 billion, with the private sector expected to invest between $500 million and $900 million.  The winning concessionaire will be expected to operate and maintain the project for 30 years after construction (roughly 35 years overall).

Legislative and regulatory efforts to kick off the procurement began in earnest in mid 2013, with release of a request for qualifications issued in November 2013.  Four consortia were shortlisted and initial industry review of the proposal documents and draft contract began in February 2014.

The Purple Line has, as among its champions, Lt. Governor Anthony Brown.  MTA/MDOT also enjoys considerable federal support for the Purple Line, with the Obama Administration allocating $100 million toward construction costs in its March 2014 budget submission to Congress.  A full funding grant agreement is expected from the Federal Transit Administration and the Purple Line is seeking further federal funding support through FTA’s “New Starts Program.”

Proposals are due in January 2015, with the preferred proposer selected as the concessionaire in spring 2015.  Subject to approval by the Maryland Board of Public Works, the concessionaire would likely begin construction by the end of 2015.

More information can be found on MDOT’s website including the primary RFP documents located under “Public-Private Partnerships.”

Simon Santiago and Katherine Bourdon contributed to this post.

Secretary Foxx and PHMSA Release Much-Anticipated Proposed Rule On Crude By Rail Tank Car Standards

The U.S. Department of Transportation Secretary Anthony Foxx and the Pipeline and Hazardous Materials Safety Administration (PHMSA) today released a much-anticipated Notice of Proposed Rulemaking (NPRM) to improve the safe rail transportation of flammable liquids, including petroleum crude oil and ethanol. 

PHMSA also released a companion Advanced Notice of Proposed Rulemaking (ANPRM) on oil spill response plans, seeking comments on current thresholds and their applicability to rail and a summary of a study finding that crude oil from the Bakken field presents greater danger during transport than other types of crude.

There is much to digest in the three documents. Here is a summary of the key elements of the proposed rule.

The Proposed Rule

The proposed rule is based on an advanced notice of proposed rule making published by PHMSA last September and reflects feedback from more than 152,000 commenters.

Generally - The proposed rule includes options for enhanced tank car standards, a phase-out or retrofit of tank cars not meeting the enhanced standards, an expanded classification and testing program for petroleum crude oil and ethanol (and other mined gases and liquids) and new speed restrictions and braking requirements for trains hauling 20 or more carloads of such flammable liquids (which would be defined as a high-hazard flammable train or “HHFT”).

New Tank Car Standard – The proposed rule contains new standards for tank cars constructed after October 1, 2015 that would be used to transport flammable liquids as part of an HHFT.  A number of variations are outlined in the proposed rule, all of which address thermal, top fittings, and bottom outlet protection, and tank head and shell puncture resistance.  The proposed rule would require an HHFT to be quipped with either electronic controlled pneumatic brakes, a two-way end of train device, or distributed power braking, depending in part on tank car standard adopted.

Sunset of DOT-111s – The proposed rule would phase out the use of DOT-111s, the oldest tank cars in use, over 2 years, unless they are retrofitted to the new tank car standard.

Other Current Tank Cars  – The proposed rule would require other existing tank cars used to transport flammable liquids as part of an HHFT be retrofitted to meet the new tank car standard or operated under speed restrictions for up to five years, depending on the flammable liquids transported.

Speed Restrictions – During the time when use is still permitted, flammable liquids moving in an HHFT not meeting the enhanced tank car standard (which means all HHFTs presently) would be subject to a 40-mph speed restriction, although the proposed rule outlines three different options with respect to the geographic scope of this limit. Tank cars meeting the enhanced specifications (once finalized) would be limited to 50-mph in all areas.

Testing & Sampling Procedures; Routing Analysis; SERC Notification - The rule would expand existing flammable liquid sampling and testing procedures, including changes in test frequency, expansion of sampling points in the supply chain and more comprehensive certification.  It would codify the Rail Corridor Risk Management System as an aid in the determination of the safest and most secure routing for HHFTs. The proposed rule also would codify DOT’s May 2014 Emergency Order, which requires trains containing one million gallons of Bakken crude oil to notify State Emergency Response Commissions (SERCs) or other appropriate state delegated entities about the operation of these trains through their States.

What’s Ahead

Both the NPRM and new spill response planning ANPRM will be open for 60 days of public comment and PHMSA has indicated that does not intend to extend the comment period.

Secretary Foxx said “While we have made unprecedented progress through voluntary agreements and emergency orders, today’s proposal represents our most significant progress yet in developing and enforcing new rules to ensure that all flammable liquids, including Bakken crude and ethanol, are transported safely.” 

Supreme Court Grants Certiorari to Review D.C. Circuit Decision Hampering Amtrak's On-Time Performance

On June 23rd, the U.S. Supreme Court granted the government’s Writ of Certiorari to review the decision of the D.C. Circuit that many believe may be hampering Amtrak’s leverage with freight railroads and its on-time performance.

According to Amtrak’s most recent issued Monthly Performance Report (May 2014), end station on-time performance (OTP) is approximately 74 percent so far this fiscal year (which started October 2013) down 12 percent from FY 2013, when the same performance measure finished at 85 percent.

While the particularly harsh winter weather may have been a factor, it could not be the whole story.  In July of 2013, the D.C. Circuit ruled that the provision of the Passenger Rail Investment and Improvement Act of 2008 (PRIIA) by which Amtrak and the Federal Railroad Administration (FRA) jointly established metrics to measure Amtrak’s performance, was an unconstitutional delegation of regulatory power to Amtrak. Congress had directed that the metrics be used to (among other things) measure whether the railroads hosting Amtrak service were meeting their long-standing statutory obligation to give priority to Amtrak trains.  Congress also called for Amtrak and its host railroads to incorporate the metrics into their operating agreements to the extent practicable.

As City Lab’s Eric Jaffe has observed, Amtrak end station OTP dropped dramatically shortly after the D.C. Circuit decision.  “What you're seeing is the aftermath of [the D.C. Circuit’s decision which] severely damaged Amtrak's leverage with the freight rail companies whose tracks it shares.” The decision nullified the metrics and, as Jaffe notes, it “likewise triggered the start of Amtrak's on-time performance decline.”

D.J. Stadtler, Amtrak’s VP Operations, made a similar observation in his testimony before the Surface Transportation Board on April 10, 2014, pointing out that Amtrak “saw an immediate drop in on-time performance across the board that was directly attributable to train handling by the host carriers.”

For the railroad industry, the Supreme Court’s review is of vital importance because it could determine whether the metrics will survive and be used to measure whether (and how well) host railroads adhere to their statutory obligation to give priority to Amtrak trains and be incorporated into the contracts governing Amtrak operations.

Speculation Mounts Over Impending Crude By Rail Rule

As speculation over the federal government’s forthcoming rule on rail shipments of crude oil grows, two items hit the press last week increasing speculation over the details of the reforms.  

On July 15, 2014, Bloomberg reported that representatives from the American Petroleum Institute (API) and the Association of American Railroads (AAR) met with the Transportation Department at the Office of Management and Budget on July 11 to present a joint plan for the phase-out of older tank cars.  According to Bloomberg, two people familiar with the proposal, who were not identified, said that “the parties agreed to scrap a fleet of thousands of DOT-111s within three years if manufacturers agree they can replace or retrofit the tank cars in that period.”  Bloomberg’s report did not include the specifics of the proposal and, at that time, neither the API nor AAR responded to requests for comments on the proposal.  As of today, no proposal has been made available on the API or AAR website.

In addition, the Associated Press ran an article entitled “Oil, railroad industries moving faster than regulators on tank cars,” which said: “[r]egulations drafted by the Transportation Department to boost the safety of moving oil by rail are believed to lay out a six-year timeline for scrapping those older, legacy tanker cars. . .”  The AP cited the Bloomberg report noting that “the railroads and the oil industry have reportedly advanced a voluntary plan to replace them within three years.”  

Meanwhile, in a letter to the Administrator of the Pipeline and Hazardous Materials Safety Administration, the CEOs of Union Tank Car and GATX Corporation urged action on rail operations rather than tank car specifications.  According to this Businessweek report, the CEOs told PHMSA that “[t]he quickest and most meaningful way to improve crude-by-rail safety is to approve new regulations regarding railroad operating procedures and classification and testing of flammable liquids,” wrote Union Tank Chief Executive Officer Kenneth Fischl and the CEO of lessor GATX Corp, Brian Kenney. 

One thing is certain amid the speculation, the new rule will have significant impact given the dramatic recent growth in U.S. crude by rail shipments. 

Amtrak and Maryland DOT Plan for Improvements to the Vital Baltimore and Potomac Tunnel Moves to the Public Input Stage

The 141-year-old Baltimore and Potomac (B&P) Tunnel is a major bottleneck on the Northeast Corridor, but Amtrak, the Maryland Department of Transportation (MDOT) and Federal Railroad Administration (FRA) are conducting a study to examine alternatives to improve or replace the tunnel. 

The two-track B&P Tunnel is used by Amtrak, Maryland's MARC Commuter Rail trains and Norfolk Southern freight trains. The track geometry of the outdated tunnel creates a low-speed bottleneck impacting approximately 85 Amtrak trains, 57 MARC commuter trains and one to two freight trains each day.

When the project began last Fall, Maryland Gov. Martin O’Malley said “We're taking the first step toward upgrading rail traffic through this Civil War era tunnel, which will improve passenger rail service along the entire East Coast.”

“The B&P tunnel is a crucial link on the Northeast Corridor making Amtrak and MARC service possible through the city of Baltimore,” said Amtrak President and CEO Joseph Boardman. “As owners and stewards of this vital piece of infrastructure, we know that a new or rehabilitated tunnel is what we need to maintain and ultimately improve reliability, speed and safety for all trains — Amtrak, MARC and others — that use it.”

The $60 million federally funded study will include range of rehabilitation alternatives and options for a new tunnel on new alignment.  The study is moving into a new phase with expanded public outreach and opportunities for stakeholders to learn more about the project's purpose and need and comment on alternatives.

Railway Age Crude By Rail Conference Profiles Key Players, Key Issues in Crude By Rail Debate

On June 12 and 13, 2014, Railway Age’s Crude by Rail Conference and Expo brought together representatives from the oil and gas industry, railroads, rail car manufacturers, Federal government, emergency response organizations and Wall Street, to address the implications of the dramatic increase in shipments of petroleum by rail (CBR).

Several informative presentations were made on tank car specifications and numerous other technical topics.  This posting will summarize the policy and regulatory issues.

Ed Hamburger, President of the Association of American Railroads (AAR), gave the keynote address to start the conference.  Hamburger laid out the steps that the railroads have taken to improve the safety of crude oil shipments.  Hamburger said that "[r]ailroads believe that federal tank car standards should be raised to ensure crude oil and other flammable liquids are moving in the safest car possible based on the product they are moving. The industry also wants the existing crude oil fleet upgraded through retrofits, or older cars to be phased out as quickly as possible."  In response to questions about the possibility of speed restrictions, Hamburger told the audience that the railroad speed limits for unit trains of 40 miles per hour is appropriate for the shipment of crude oil and explained that the railroads had expressed concern to the Office of Management and Budget (which is currently reviewing a proposed rule on CBR) that a speed limit of 30 miles per hour for crude oil unit trains would have serious ripple effects of slowing down the entire rail system. 

Following Hamburger’s address, Michael Miller, Chief Operating Officer of Genesee & Wyoming, Inc., and Richard Flynn of Northeast Logistics Systems, gave presentations on crude by rail traffic trends and growth prospects.  Miller outlined the rapid growth of crude by rail shipments as well as the substantive benefits rail offers to oil refiners and producers versus pipeline shipments, including the flexibility of adjusting origin and destination points, scalability, and product uniformity.  Flynn addressed the rail industry’s efforts to get ahead of the crude by rail safety issues and the importance of everyone in the supply chain being involved in risk management initiatives. 

Nossaman Partner Linda Morgan gave the Luncheon address.  Morgan’s talk focused on the  many significant and challenging transportation issues raised by crude by rail, including how to most effectively use rail capacity, how to ensure enhanced safety throughout the entire logistics chain, how to best allocate risk, and how to strengthen local emergency response capabilities.  She emphasized the opportunity that this situation provides for a collaborative effort among all parties to find a resolution that strikes the right balance between public and private initiatives and creates certainties for the future. 

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Update from the American Public Transportation Association 2014 Rail Conference

The American Public Transportation Association (“APTA”) held its Rail Conference on June 15 through 18, 2014, in Montréal, QC.  In addition to the technical sessions for which APTA is well-known, a main theme of the Rail Conference was the nexus between transit and economic development.  The shift in themes demonstrates transit organizations’ changing philosophy from building and operating transit infrastructure to also catalyzing transit-oriented communities.  Much of the focus on transit and economic development relates to joint development and Transit-Oriented Development (“TOD”).

The on-going discussion tying transit infrastructure to land use and development started at APTA’s committee and subcommittee meetings before the Rail Conference.  For example, the APTA Land Use and Economic Development Subcommittee (under the Planning and Policy Committee) has focused on this relationship between transit and shaping communities since its inception.  The agenda of the subcommittee at the Rail Conference included updates on the (1) Federal Transit Administration’s (“FTA”) new Joint Development Circular, (2) the FTA’s TOD Planning Pilot Notice of Funding Availability (“NOFA”), and (3) tools that are to be developed by APTA, such as developer procurement documents.

The FTA first provided notice requesting comment on its draft Joint Development Circular in early March 2013.  Since then, the FTA has reviewed comments and participated in a variety of listening and technical sessions related to joint development and TOD.  The transit industry has eagerly anticipated this updated circular, and the FTA indicated in the Land Use and Economic Development Subcommittee meeting that the circular will be available in the next couple of weeks.

Additionally, at the Land Use and Economic Development Subcommittee meeting the FTA announced the status of the TOD Planning Pilot.  Under the current surface transportation authorization (Moving Ahead for Progress in the 21st Century, or “MAP-21”), the planning pilot was authorized to provide funding to advance planning efforts that support TOD associated with new fixed-guideway and core capacity improvement projects.   Congress appropriated $10 million to the TOD Planning Pilot in both Fiscal Years 2013 and 2014.  The FTA anticipates providing a NOFA for the $20 million (total) planning pilot before the end of June.

Finally, the Land Use and Economic Development Subcommittee discussed the suggestion that APTA create tools related to joint development and TOD that can be used by members.  The first tool that is anticipated is a template Request for Qualifications for developers.  The template RFQ would provide some standardization of qualifications solicitation documents across the transit industry.  APTA has provided similar tools in the area of rolling stock procurement (buses and rail vehicles).

The thread that started at the committee and subcommittee meetings preceding the Rail Conference was picked up with sessions at the conference.  Slightly more than 20% of the sessions at the Rail Conference focused on the relationship between transit and land use and development.  Issues covered at sessions included streetcars and urban circulators and their relationship to development, value capture of development along transit infrastructure, innovative business models and Public-Private Partnership opportunities in transit, and prioritizing transit infrastructure through stakeholder input and land use planning.  A significant volume of information related to these topics, as well as technical topics addressed during Rail Conference sessions, is available through the Transit Cooperative Research Program.

California Legislators Propose Two Bills on Crude by Rail

Two measures have been introduced in the California legislature to respond to the growth of crude-by-rail volume in the state.

State Senator Fran Pavley (D-Agoura Hills) has introduced SB 1319, which would expand existing law regarding oil spills to cover inland waterways and direct the Governor to require the Administrator of the Office of Spill Prevention and Response to amend the California oil spill contingency plan to cover inland waterway spills, which would include any spills from railroads. 

Sen. Pavley told the LA Times, "We need to address the new and unique hazards of crude-by-rail transportation." On May 28, the State Senate voted 23-11 to approve the bill.

Meanwhile, Assemblyman Roger Dickinson’s (D-Sacramento) bill (AB 380) would require railroads to make quarterly reports of specified information regarding the transportation of hazardous materials and an emergency response plan to the California Office of Emergency Services and establish a response management communications center. Cal OES would disseminate relevant information from the reports and the emergency response plan to the state’s unified program agencies, although the reports and emergency response plans would be exempt from the California Public Records Act.

“The risk of catastrophic injury to life and property by rail accident has grown dramatically,” said Dickinson. “It is essential that emergency response agencies have the information they need about crude oil cargo in order to minimize any damage from an accident,” Dickinson added. On June 4, AB 380 passed the Senate Environmental Quality Committee.

Meg Catzen-Brown contributed to this post.

Amtrak, Norfolk Southern, Federal Railroad Administration and Indiana DOT Celebrate Commencement of Construction on the Indiana Gateway Project

Last week, officials from Amtrak, Norfolk Southern and the Federal Railroad Administration and Indiana Governor Mike Pence gathered to celebrate commencement of construction on the Indiana Gateway Project.

The $71.4 million project, funded through the American Recovery and Reinvestment Act, will upgrade the rail line and right-of-way between Porter, Ind. and the Illinois state line.  Norfolk Southern will install universal crossovers at five locations and construct additional mainline track at three locations. 

Most significantly, NS will construct a new passing track at Porter Junction, where NS, Amtrak and two CSX lines intersect.  Porter Junction handles 14 Amtrak trains and 90 freight trains daily and is the one of the nation's most congested rail junctions.

With other capital projects in Illinois and Michigan, the Indiana Gateway Project will improve Amtrak passenger rail service on several routes, including the Lake Shore Limited, the Capitol Limited, and the three Michigan services (the Pere Marquette, Blue Water and Wolverine routes).

“This project significantly strengthens the Midwest Regional Rail Network, eliminates chokepoints, and creates an environment where intercity passenger trains and freight service can operate fluidly without prolonged delays,” said Deputy Federal Railroad Administrator Karen Hedlund.

Construction is expected to be completed in 2016.

Industry Group Study Says Bakken Crude Poses No Different Risks Than Other Crude Shipped By Rail

As rail shipments of crude oil moving out of North Dakota’s Bakken formation have risen in recent years, so have derailments of trains carrying crude oil throughout the United States and Canada.  One facet of the debate over how to improve the safety of crude by rail shipments concerns the volatility of Bakken crude compared to other crude oil moved by rail.   In January the Pipeline and Hazardous Materials Safety Administration (PHMSA) sent a letter to the American Fuel & Petrochemical Manufacturers (AFPM) requesting information on the tests and methods used to analyze and classify crude oil prior to shipment.   

In response, on May 15 AFPM released a report on the characteristics of Bakken Crude Oil.  The report was based on a survey of 17 AFPM members and included over 1400 samples of Bakken crude.  AFPM asserts that its findings reveal that that “Bakken crude is comparable to other light crudes and does not pose risks that are significantly different than other crudes or flammable liquids authorized for rail transport.” 

In its press release accompanying the release of the report, AFPM stated that the study demonstrates that “there is no need to create a new DOT classification for [Bakken] crude oil transportation.” 

The Wall Street Journal reported that AFPM’s President, Charles Drevna, said “[t]he debate should now focus on the remaining issues—track integrity and maintenance and training for rail operators and responders.”  Mr. Drevna’s comment hits on the controversy about how best to address the safety concerns over crude by rail shipments.  As noted by Bloomberg Business Week in its report of the AFPM study, “[w]hile the railroads have urged the shippers to lease stronger tank cars, the oil and refining companies claim the bigger problem is that railroads need to do a better job at maintaining tracks.”

In a story about the study, Railway Age Magazine noted that “as the anniversary of the Lac-Mégantic catastrophe approaches, what had seemed to be a public consensus that the ultra-light Bakken crude is inherently too volatile for DOT-111 carriage is fracturing into open dispute between oil shippers and rail carriers.”

For its part, PHMSA Administrator Cynthia Quarterman sent AFPM a letter asking for more detail on sample selection and methods used for the study. 

Kevin Sheys contributed to this article.

FRA Reminds Potential Applicants that Buy America Applies to RRIF

On May 14, the Federal Railroad Administration (“FRA”) posted a reminder that Buy America, a domestic preference law, applies to the Railroad Rehabilitation and Improvement Financing (“RRIF”) program.  FRA posted the reminder because many potential RRIF loan and loan guarantee applicants are short line and regional freight railroads and may not be familiar with Buy America requirements.

The RRIF program was established in 1998 under the Transportation Equity Act for the 21st Century of 1998 (“TEA-21”), with subsequent changes to the program coming in the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (“SAFETEA-LU”) in 2005 and the Rail Safety Improvement Act of 2008 (“RSIA”).  In selecting projects for the RRIF program, the FRA is to give priority to projects that enhance the national rail system, public safety, or the environment; promote economic development and United States companies to be more competitive in international markets; or meet certain other specific goals.

Unlike the Intercity Passenger Rail Service Corridor Capital Assistance program, which includes a specific Buy America requirement, no “Buy America” provision was drafted in the RRIF program statutory framework.  However, in September 2010, the FRA articulated its policy of prioritizing projects applying for the RRIF program that comply with a domestic preference requirement.  

The rationale for the FRA’s application of a domestic preference requirement falls under two of the eight guiding priorities articulated above: the belief that projects that include a domestic preference promote economic development and that projects that include a domestic preference enable United States companies to be more competitive in international markets.  The FRA re-addressed this commitment for a domestic preference requirement under the RRIF program through a Web posting .

In both the September 2010 notice and the Web posting, the FRA identifies four “mitigating factors” pursuant to which a project sponsor may seek a waiver from the domestic preference requirement. The mitigating factors include (i) insufficient quantity, availability and, quality; (ii) unreasonable time constraints in the purchase and delivery of rolling stock or power train equipment; (iii) project costs increases of more than 25% for the inclusion of domestic material; and (iv) inconsistency with the public interest through the application of RRIF domestic preference requirements.  FRA posted the reminder because many potential RRIF loan and loan guarantee applicants are short line in regional freight railroads and may not be familiar with Buy America requirements.

Kevin Sheys co-authored this entry.

Virginia Governor McAuliffe Announces State Rail Safety Task Force on Hazardous Material Transport

While federal officials continue their efforts to address railroad transportation of petroleum crude oil (crude-by-rail), Virginia intends to make a parallel but somewhat broader effort with respect to hazardous material rail transportation. 

On May 7th the U.S. Department of Transportation (DOT) issued an Emergency Order (EO) requiring all rail carriers to notify State Emergency Response Commissions (SERCs) regarding the expected routing of their unit trains of Bakken crude oil. The EO is effective in 30 days. The DOT issued the EO in response to the "startling" number of crude oil railroad accidents that have occurred during the last year, and the voluminous quantity of oil spilled as a result of the accidents.  Back in September of 2013, the Pipeline and Hazardous Materials Safety Administration (PHMSA) issued an Advanced Notice of Proposed Rulemaking related to rail hazmat safety, including regulations for tank cars most commonly used to move crude oil by rail.  PHMSA received almost 150 comments on the proposed rule.  PHMSA, in cooperation with the FRA, has developed Notice of Proposed Rule Making based upon those comments and that rule is under review by the Office of Management and Budget.  It is unclear when OMB will clear the rule or when PHMSA will publish it.

On May 9 Virginia Governor Terry McAuliffe announced the creation of a Railroad Safety and Security Task Force, comprised of state agency officials and private sector representatives with hazmat transport expertise.  The task force will make recommendations to improve safety and the way hazardous materials are transported through the Commonwealth.  The Governor wants Virginia to be a national leader in the prevention of, preparation for and response to hazardous material transport accidents. 

Governor McAuliffe’s Task Force is a response to the April 30, Lynchburg, VA derailment of a CSX train carrying Bakken crude oil.  Seventeen cars were derailed and three fell into the James River, briefly caught fire and resulted in the partial evacuation of downtown Lynchburg.
Shortly after the announcement, CSX announced its support for the Task Force.  Bryan Rhode, CSX’s Regional Vice-President of State Governmental Affairs, issued a statement saying “We look forward to participating in the task force as part of our ongoing collaboration with federal, state and local agencies.”


Amtrak CEO Boardman Warns Hudson Rail Tunnels Have 20 Years Max Of Remaining Service

Amtrak CEO Joe Boardman is warning that one or both of the Hudson River rail tunnels will need to be shut down within the next 20 years.  Boardman also noted that it would take seven to nine years to build and deliver new rail tunnels and that Amtrak’s plan for new tunnels is still unfunded. CEO Boardman made these remarks at the Regional Plan Association’s conference on April 25th in New York City.  

Readers will recall that Access to the Region’s Core (ARC) was a passenger rail infrastructure project that would have significantly expand transportation access between Midtown Manhattan and New Jersey. The centerpiece of ARC was a new two-track rail tunnel under the Hudson River from New Jersey to New York Penn Station. ARC would have added much needed capacity for the 160,000 passengers who travel through the existing tunnels each weekday and allowed for temporary closure of the existing tunnels for major rehabilitation projects. NJ Transit, New York Metropolitan Transit Authority (MTA) and the Port Authority of New York and New Jersey were the primary proponents of ARC.  In October of 2010, New Jersey Governor Chris Christie decided to terminate ARC, citing a concern that New Jersey was bearing too much of the project risk.

After the demise of ARC, Amtrak and elected officials moved quickly to develop a new plan for Hudson River rail tunnels called the Gateway Project .  Amtrak’s plan calls for completion of construction by 2030, but CEO Boardman acknowledged that the consensus view of a panel at the Regional Plan Association conference was that the new tunnel would take “25 years if you’re lucky.”  The present lack of funding means the new tunnel could take until 2040 or later. 

Complicating matters, repairs to the existing tunnels to repair damage caused by Super Storm Sandy flooding will cost at least a half a billion dollars and will require temporary closures.  Presently, the two tunnels handle 24 trains per hour, but closure of one tunnel for major rehabilitation would cut capacity by more than half because a single tunnel would need to handle trains in both directions.

Prospects for funding for a new tunnel are unclear to put it charitably.  Amtrak is receiving $45 million in federal funding over three years for planning and preconstruction work, but a construction funding solution is one of the many open questions for House and Senate Transportation appropriators.

White House Backs the $2.2 Billion Purple Line

On Tuesday, March 4th federal officials recommended the Maryland Transit Administration’s Purple Line Public-Private Partnership Project ("Purple Line") to receive $100 million in federal construction money as part of the Obama Administration’s 2015 fiscal year budget. The Federal Transit Administration recommended the Purple Line as one of seven large transit projects in the nation to receive full funding grant agreements, which allow for a longer-term payment commitment by the federal government. The other six projects are the Westside Subway Expansion – Section 1 (Los Angeles), Sunrail Phase II South (Orlando), Green Line Extension (Cambridge to Medford, MA), Red Line (Baltimore), Columbia River Crossing Project (Portland) and TEX Rail (Fort Worth).

The Purple Line, which is estimated at $2.2 billion in construction costs, is seeking a total of $900 million in federal funding.  Representative Donna Edwards (D-MD), whose district is located along the proposed line in Prince George’s County commented on the announcement, “This really keeps the Purple Line on the trajectory we need.” Maryland transit officials hope to begin construction on the 16-mile light-rail transit line in 2015, with services beginning in 2020. 


Major Court of Appeals Decision Allows Construction of $5 Billion Transit Rail Project in Honolulu to Proceed

On the front page of Nossaman's website, we report on the result of decisions by the United States Court of Appeals for the 9th Circuit and the United States District Court for  the District of Hawaii that allow the construction of a 20-mile, $5 billion, rail transit project to proceed.  This project will transform the City of Honolulu, which now has some of the worst traffic  in the United States.  Nossaman was counsel to the City of Honolulu in the litigation.

These cases clarify important aspects of the alternative selection process under the National Environmental Policy Act (NEPA) and section 4(f) of the Department of Transportation Act.  More specifically:

  1. Linking planning and NEPA.   These cases confirm that, under certain circumstances, transportation agencies may rely on the studies and decisions made during the transportation planning process to narrow the range of reasonable alternatives considered in an environmental impact statement (EIS).  Prior to the enactment of MAP-21, applicants for major capital transit project grants (“new starts) had to prepare an “Alternatives Analysis” to demonstrate the need for and financial feasibility of the transit project.  FTA and the FHWA issued guidance on linking the transportation planning process and the NEPA process so as to avoid duplicative analyses in EISs and EA/FONSIs.  The Alternative Analysis was specifically referenced in  this guidance as a way for transit projects to document this linkage. MAP-21 eliminated the requirement that the FTA  prepare the Alternative Analysis, required  FHWA and FTA to more rigorously link planning and NEPA.  The 9th Circuit agreed that the FTA could properly rely on the Alternatives Analysis to to limit the range of alternatives presented in the EIS where the FTA provided guidance regarding the preparation of the Alternatives Analysis and the public was provided an opportunity to comment on the Alternatives Analysis .  This express linking of planning and NEPA should be of considerable benefit in defending focused alternative analyses in the future.
  2. Extraordinary additional cost alone is sufficient to reject an alternative as imprudent under Section 4(f) of the Department of Transportation Act.  Section 4(f) prohibits the use of land from publicly owned parks, recreational areas, and wildlife and waterfowl refuges, as well as all historic sites, of national, state or local significance, unless the Secretary determines that there are “no feasible and prudent alternatives” to the use of such lands.  FTA rejected two tunnel alternatives from detailed evaluation in the EIS  because they would have cost an additional $650 million more than the proposed project.  In 2012, The District Court upheld the FTA’s determination that additional cost for the tunnel alternative  rendered the one of the tunnel alternatives as not prudent.  In its February 2014 decision, the District Court upheld the FTA’s determination that the second tunnel alternative was not an avoidance alternative and was not the “least harm” alternative on cost and other grounds.  
These cases involved many other important issues, including the treatment of subsurface traditional cultural properties and burial sites, and constructive use of Section 4(f) sites, to name a few.  The 9th Circuit decision is HonoluluTraffic.Com v. Federal Transit Administration, 2014 U.S. App. (9th Cir. February 18, 2014).  The District Court decision affirmed by the 9th Circuit is HonoluluTraffic.Com v. Federal Transit Administration, 2012 U.S. Dist. (D Haw. November 1, 2012).
Edward Kussy co-authored this entry. 
View a larger version of the map above on the project website

Houston METRO North Line Opens

On Saturday, December 21, the Metropolitan Transit Authority of Harris County (METRO) celebrated the opening of the North Line in Houston, Texas.  The 5.3-mile northern extension of METRO’s Red Line includes eight new stations and connects the University of Houston-Downtown and the Northline Commons Mall, making the entire Red Line nearly 13 miles. 

The opening of the first new rail line in 10 years is going to bring "positive changes for the community," interim METRO president Tom Lambert said.  As the first to serve residential neighborhoods, the line will allow METRO "to see how we can use a bus system to feed into rail. And it will give people more transportation options."

As part of an approximately $1.22 Billion overall expansion of METRO’s existing light rail system which broke ground 4 years ago, the $756 million design-build project is the first of three new lines to begin service.  The remaining two lines, known as the East End Line and Southeast Line are scheduled to open in 2014. 

The procurement of all three lines was authorized under the Texas Hybrid Delivery System Act, which grants METRO the authority to develop transportation projects in partnership with the private sector.  In April 2009, METRO entered into a development agreement with Parsons Transportation Group, Inc., establishing the framework for an integrated set of contracts for development of the system  The collaborative arrangement under the hybrid delivery statute allowed greater flexibility than either traditional design-bid-build or design-build contracts, using “allowances” to permit owner and stakeholder preferences to be addressed as the parties proceeded with project development while still gaining the schedule benefits of design-build.

A team of attorneys from Nossaman LLP, led by Nancy Smith, assisted METRO with the procurement and provided advice on contracting issues throughout the development of the project.

Maryland Purple Line P3 Project Receives Qualifications from Six Teams

The Maryland Department of Transportation and Maryland Transit Administration (“MDOT/ MTA”) announced on December 11, 2013 that six private-sector teams responded to a Request for Qualifications to design, build, construct, finance, operate and maintain the Purple Line project.  The list of proposer teams is included in the joint press release.

The 16-mile light rail line, which will be constructed under Maryland’s newly adopted Public-Private Partnership law, runs between Bethesda in Montgomery County, Maryland and New Carrollton in Prince George’s County, Maryland.  Funded by a combination of federal, state and local governments, the total project cost is estimated at $2.2 billion.

Transportation Secretary James T. Smith, Jr. noted that “the six responses, from local, national and worldwide firms, clearly demonstrate leaders in the P3 industry have strong interest in delivering this long-awaited project.”

MDOT/MTA will announce a short list of teams in January 2014, following a thorough review.  Formal proposals will be due in early summer, and in late 2014 or early 2015, MDOT/MTA will select a preferred partner.  Construction is expected to begin as early as Spring 2015.

Maryland Transit Administrator Robert L. Smith said that the “intent is to short list as many as four teams to ensure competition and innovation in the Purple Line project.”

More information can be found on the project website.

How To Fix RRIF (If Congress Wanted To)

Last week I attended an invitation only round table organized by Karen Hedlund, Deputy Administrator for the Federal Railroad Administration.  The round table was held in conjunction with the High Speed Rail Conference held at LA Metro's headquarters in Los Angeles, California.  With the House T&I Committee expected to begin marking up a rail bill, Ms. Hedlund sought ideas about how to expand the Railroad Rehabilitation Improvement Financing credit program to be a more useful source of low cost debt capital for commuter rail projects.  Around for a number of years, RRIF has been primarily used by short-haul freight rail companies to improve, expand, refinance, and acquire freight rail facilities and equipment.  With the success of the TIFIA program for highways, there is an opportunity of transforming RRIF into a source of financing for large commuter rail projects around the country, including several sponsored by LA Metro and Metrolink, the southern California commuter rail agency.

All agreed that RRIF needed to recognize "collateral" not just in the form of hard assets, but a dedicated, creditworthy stream of revenues, such as sales taxes.  Also, Congress should consider seeding RRIF with funds to pay the credit risk premium, similar to what it did for the TIFIA program.  And for the next round of TIGER grant funding, allow TIGER grants to be used to pay the credit risk premium ala TIGER TIFIA.  In order to expedite processing of credit applications, RRIF would need funds to staff up and bring on a bench of financial and legal consultants.

This holiday season we can only wish that Congress will see the benefits to the economy and the country's passenger rail system from an expanded RRIF program, and, as with MAP21, find a bi-partisan approach to fixing RRIF.

Off the Rails: PHMSA Regulation of DOT-111 Tank Cars

On Saturday, October 19, 13 cars on a Canadian National train derailed west of Edmonton, Alberta, and three cars carrying liquefied natural gas leaked and burned.  No injuries were reported.  This accident follows a similar incident in July in which a train with 72 tank cars of crude oil derailed in the town of Lac-Megantic, Quebec.  That derailment triggered a series of explosions that killed 47 people. The tank cars carrying the oil were non-pressure tank cars that meet specific DOT containment standards, classified as DOT-111 cars.

These incidents have attracted scrutiny from Canadian and U.S. regulators.  It was recently reported that Canadian Transport Minister Lisa Raitt plans to hold talks this fall with U.S. Secretary of Transportation Anthony Foxx regarding DOT-111 tank car safety issues.  Further, the incidents have focused attention on the increased transportation by rail of crude oil from areas such as the Bakken region in Montana and North Dakota, and the provinces of Saskatchewan and Manitoba in Canada.

On September 6, 2013, in response to the Lac-Megantic incident, the U.S. Pipeline and Hazardous Materials Safety Administration (“PHMSA”) announced its intention through an Advanced Notice of Proposed Rulemaking (“ANPRM”) to publish draft regulations that would require DOT-111 railcars to be updated to address concerns stemming from recent events.  The ANPRM responds to eight separate petitions for rulemaking submitted to PHMSA, addressing concerns related to the transportation of hazardous materials by rail and seeking to fix potential design flaws in DOT-111 tank cars that may have contributed to both incidents.  Proposed changes to the DOT-111 tank cars include thicker steel for tank heads and shells and more robust protection for top fittings.

Comments to the ANPRM are due on November 5, 2013.

Jobs Want to Go Where the Railroads Are

On April 24, 2013, Norfolk Southern (“NS”) CEO Wick Moorman spoke before the US House of Representatives Transportation Infrastructure Committee’s Special Panel on 21st Century Freight Transportation about the need to focus on long-term investments in railroad infrastructure.  The NS CEO stated that “In the past decade Norfolk Southern helped locate 1,021 new and expanded facilities along Norfolk Southern rail lines, representing $28.7 billion in customer investment and generating more than 48,000 jobs. That’s just one railroad. What an incredible incentive to support railroads everywhere.”

Moorman stated that privately-owned railroads serve as both “a barometer of the economy” as well as “an essential element in solving the country’s freight transportation problem.” Moorman called for specific action from the federal government to aid private railroads in their indispensible function. First, the government must support and not hinder private railroad’s ability to invest and gain returns on investment in their own infrastructure.  Second, the government must put the economy on sound footing. Third, the government must find sensible ways to allow private sector and partners invest in railroad projects. 

Moorman’s full comments may be found at the Norfolk Southern website (PDF).

President's Budget Includes Funding For Two LACMTA Projects

Possibly lost in the shuffle of the rollout last week is the news that the President’s budget proposal (PDF) includes $130 million to help fund two significant transit system improvements in Los Angeles, the Regional Connector and the West Side Extension.

The Regional Connector would be a 1.9-mile underground line that would tie together the Gold, Blue and Expo lines and allow a one-seat ride from Montclair to Long Beach and from East Los Angeles to Santa Monica.  The West Side Extension would build out the Purple Line subway from Wilshire & Western to Westwood, a distance of 9.5 miles.

Both projects were slated for Full Funding Grant Agreements in the Federal Transit Administration’s FY 2014 New Starts Report (PDF).  Metro has identified these two projects as its priority projects.

Only one other project, the Columbia River Crossing, a bridge project with an FTA-supported transit component, was included in the President’s budget proposal and recommended for a FFGA in the New Starts Report.  The Columbia River Bridge Project is co-sponsored by the Oregon and Washington Departments of Transportation.

"Near Public Transportation" - the New Real Estate Mantra?

More evidence of the beneficial impacts of transit-oriented development has arrived in the form of a new property values study by the American Public Transportation Association, the Center for Neighborhood Technology and the National Association of Realtors.  

(See also our blog post regarding the EPA report released last month promoting funding mechanisms and other strategies for communities to provide more transit-oriented development.)  

The study found that homes closer to public transit performed 42 percent better (in terms of resilience of property values)  than those further away.  This finding was based on an analysis of home values in San Francisco, Phoenix, Boston, Chicago, and Minneapolis-St Paul between 2006 and 2011.  

Price resilience was highest for properties near transit stations with the most connections and most frequent service.  Interestingly, housing type (apartment, single-family, townhouse etc) had no impact on the study, with the results holding true across all property types.  Residents in a “transit shed” (within a half a mile of selected transit) also had “better access to jobs and lower average transportation costs” than the study area as a whole.  

The full text of the report is available on the American Public Transportation Association website.

Maryland Transit Administration Issues RFI on New Purple Line and Red Line

This week the Maryland Transit Administration (“MTA”) issued a Request for Information (“RFI”) requesting private sector involvement to collect best practices for delivery and financing of the planned Maryland National Capital Purple Line and Baltimore Red Line.  The proposed Maryland National Capital Purple Line is a 16-mile light rail transit line project that will extend between Bethesda and New Carrollton, Maryland.  The proposed Baltimore Red Line is a 14.1 mile, east-west transit line that will connect Woodlawn, Downtown Baltimore and Johns Hopkins Bayview Medical Center campus.  The RFI comes days after Governor O’Malley signed the new Maryland Public-Private Partnership (“P3”) legislation into law.  The new P3 legislation provides a more predictable and linear process for private sector involvement in future P3 projects, while also requiring competitive bidding, protection of public assets and the ability for private sector actors to submit unsolicited proposals to address Maryland’s imminent infrastructure needs.  With the new P3 law paving the way, the MTA hopes the RFI will uncover combinations of traditional project delivery approaches that will achieve the highest time and cost savings, while ensuring high-quality service.

The deadline for RFI responses is May 8, 2013.  The RFI and the official press release can be found on the Maryland Transit Administration website.

Metro's Gold Line Bridge Completed On-Time and On-Budget

The Metro Gold Line Foothill Extension Construction Authority (“Authority”) has announced the completion of the Iconic Freeway Structure Design-Build Project (“Iconic Freeway Structure”) on-time and on-budget. Awarded to Skanska USA in 2010, the project involved the design and construction of the Gold Line Bridge, a 584-linear foot sculptural bridge. 

The $18.6 million dual track bridge is the first element completed for Phase 2A of the 11.5-mile Metro Gold Line Foothill Extension (Foothill Extension) that will connect the existing Sierra Madre Villa Station in the city of Pasadena and the future Arcadia Station. 

The Authority separated Phase 2A into three design-build contracts for the bridge, alignment and intermodal parking facilities elements. For the Iconic Freeway Structure Project, it was important that the Gold Line Bridge be the focus given its complexities, including the architectural and engineering features, and its location spanning two faults and being over a major freeway. Accelerated project construction was an added benefit.

For the remaining two contracts, in 2012, the Authority awarded a $486 million design-build contract for Phase 2A alignment to a Kiewit/Parsons joint venture. The  procurement process for the intermodal parking facilities contract is in progress with award scheduled for February.

Phase 2A is scheduled for completion in late 2015.

For further information, please visit the Gold Line Foothill Extension website.

Photo Source: Metro Gold Line Foothill Extension Construction Authority

Federal Court Allows Honolulu Rail Transit Project Construction to Proceed

In an important victory for the $5 billion Honolulu rail transit project, on December 27, 2012 the U.S. District Court in Hawaii issued a judgment allowing construction of the first three phases of the 20-mile Project to continue pending the completion of additional environmental analysis regarding the last construction phase the Project in downtown Honolulu.  The Court’s judgment keeps in effect in Federal Transit Administration’s approval of the Project and the $1.5 billion Full Funding Grant Agreement for the Project recently executed by the FTA and the City.  The Court’s judgment will allow the construction of the Project to continue on its current schedule.

In November 2012, the federal court granted, in part, the summary judgment motions of the City and FTA and rejected challenges to the Project brought under the National Environmental Policy Act and the National Historic Preservation Act.  The Court also rejected all but three of the challenges to the Project under section 4(f) of the Department of Transportation Act.  The Court’s summary judgment decision requires the City and FTA to conduct additional analyses of three issues within the downtown Honolulu phase of the Project.   Construction of the downtown phase of the Project is scheduled to commence in June 2014.  

Nossaman represents the City and County of Honolulu in the federal litigation.

Federal Transit Administration Executes $1.5 Billion Grant Agreement for Honolulu Rail Project

On December 19, 2012 the Federal Transit Administration executed a $1.5 billion Full Funding Grant Agreement for $ 5 billion, 20-mile, Honolulu rail transit project.  The Project will serve the heavily congested corridor between the west side of O'ahu and downtown Honolulu.  The Project will provide transit access to major employment centers, activity centers, and tourist destinations in Honolulu, including the Pearl Harbor Naval Base, Aloha Stadium, the Honolulu International Airport, Chinatown, the downtown business center, the Civic Center, the Port of Honolulu, and the Ala Moana Center.

At the signing ceremony in Washington, D.C., U.S. Transportation Secretary LaHood noted that "The Honolulu rail transit project, the first of its kind in the state, will bring new transit options to the growing region and create a modern transportation system that is built to last for future generations". Secretary LaHood noted the recent passing of Senator Daniel Inouye:  "And though, sadly, Senator Inouye cannot be here with us today, this agreement is a testament to his tireless advocacy on behalf of his state and its people."

FTA Adminstrator Rogoff commented that "Hawaii's first rail transit system will be a game-changer for the region because it will serve nearly 80 percent of Oahu's total population, including thousands of workers who commute into Honolulu every day from West Oahu," said Administrator Rogoff. "This historic project will cut commute times west of the city by more than 30 minutes each way, drastically improving the quality of life for residents who want to spend less time in their cars, more time with their families, and enjoy cleaner air."

The FTA funding commitment represents approximately 35 percent of the Project’s construction cost.  Local revenues will provide about 65 percent of the Project cost.

The Project is the subject of pending environmental litigation under state and federal law.  Nossaman is special counsel to the City in the federal litigation.

The Future is Here: Recent California Court Decision Under CEQA Is Great News for Transportation

In a decision of importance to transportation projects throughout California, the California Court of Appeal rejected environmental challenges to the $1.5 billion extension of the Exposition Corridor light rail line in Los Angeles.  Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012) __ Cal.App.4th __ (April 17, 2012, B232655).  The decision is cause for optimism, not only for transportation agencies, but for all Californians who stand to benefit from transportation projects designed to reduce air emissions and traffic congestion.  Nossaman represented the Exposition Metro Line Construction Authority in the litigation.

Among many other challenges, the project opponents challenged the Expo Authority’s use a future “baseline” to determine the significance of traffic and air quality impacts arguing that the use of a future projected baseline would result in a comparison of the project’s impacts with “hypothetical” future conditions.  The Court of Appeal rejected the opponents’ argument noting that as “a major transportation infrastructure project that will not even begin to operate until 2015 at the earliest, its impact on presently existing traffic and air quality conditions will yield no practical information to decision makers or the public.”

Project opponents throughout the nation are challenging the use of future conditions to evaluate traffic and air quality impacts.  In 2010 a California Court invalidated the approval of a road project where the lead agency used opening day conditions to evaluate traffic impacts.  The Court in Neighbors for Smart Rail declined to follow the reasoning of the earlier court decision.

FTA Authorizes Start of Construction of Honolulu Rail Transit Project

The Federal Transit Administration (FTA) has authorized the City and County of Honolulu to begin construction of a 20-mile, $5 billion rail transit project.  The FTA Letter of No Prejudice allows the City to begin up to $184.7 million in construction and other activities on the project, including the first sections of raised guideways from East Kopolei to Pearl Highlands.  The 20-mile rail project will extend from Kapolei to Ala Moana Center in downtown Honolulu and includes a station at the Honolulu International Airport. 

Hawaii state courts have rejected state law challenges to the project.  A lawsuit under the National Environmental Policy Act, the National Historic Preservation Act and section 4(f) of the Transportation Act is pending in the U.S. District Court for the District of Hawaii.

Karen J. Hedlund Appointed Deputy Administrator of the Federal Railroad Administration

U.S. Department of Transportation Secretary Ray LaHood plans to name Karen J. Hedlund as Deputy Administrator at the Federal Railroad Administration (FRA).  Hedlund moves to the Deputy Administrator position from her current role as Chief Counsel at FRA, replacing Karen Rae, who Gov. Cuomo recently appointed as New York State Deputy Transportation Secretary.  Before moving to FRA, Hedlund served as Federal Highway Administration Chief Counsel from June 2009-June 2010, where she helped implement the American Recovery and Reinvestment Act, including new investments in highway, intermodal and freight rail facilities.
Prior to joining DOT, Hedlund was a partner in the Washington, DC, office of Nossaman. She has 35 years of experience in transportation and is recognized nationally for her expertise in structuring public-private partnerships. All of us at Nossaman offer congratulations to our former partner on this new appointment.

USDOT Works Around Freight Railroads on New Passenger Rail Level-Entry Boarding Requirements

As discussed in a previous blog post, the U.S. Department of Transportation (USDOT) recently set new level-entry boarding requirements for disabled passengers on intercity and commuter railroads through amended regulations implementing the Americans with Disabilities Act (76 Fed. Reg. 57924).

In the proposed rule, USDOT stated its intent to require passenger railroads to provide level-entry boarding at all new or altered station platforms, unless the passenger railroad could show that level boarding was infeasible.  In the final rule, USDOT retained the level-boarding mandate, but will permit alternatives at platforms adjacent to track used by freight railroads if the passenger railroad can demonstrate reliability, safety and access to all cars available to non-disabled passengers.

Due to concerns about equipment clearance issues, freight railroads generally refuse to permit passenger railroads to construct station platforms more than 8 inches above top-of-rail.  USDOT’s ADA regulations give it authority over owners or persons in control of a station (e.g., passenger railroads), but not owners or persons in control of track that passes through the station (e.g., freight railroads). Due to this limitation, USDOT concluded that it “does not currently have legal tools to overcome this refusal” (76 Fed. Reg. at 57927).

This is an unusually candid assessment on the part of USDOT, especially in the context of the ADA.  What remains unclear is what passenger railroads will need to demonstrate in order to meet this performance based standard for an alternative to level boarding and what will happen if the standard cannot be met at a particular location.

Stay tuned.

USDOT Sets Costly New Passenger Rail Station Platform Level-Entry Boarding Requirements

In a recent move that will have wide-ranging impact on the rail industry, the U.S. Department of Transportation (USDOT) set new level-entry boarding requirements for the access of passengers with disabilities to passenger railroads, applicable to new and altered station platforms where construction or alteration begins on or after March 2, 2012.  Through a final rule promulgated on September 19, 2011, USDOT amended its Americans with Disabilities Act regulations to require intercity and commuter passenger railroads to provide that disabled passengers can access any passenger cars accessible to non-disabled passengers (76 Fed. Reg. 57924)  This rule does not require railroads to retrofit existing station platforms.

In stations not shared with freight railroads, passenger railroads must provide level-entry boarding to all passenger cars.

In stations where freight railroads run on track adjacent to passenger platforms, passenger railroads may choose among non-level boarding alternatives – including car-borne lifts, station-based lifts or mini-high platforms – to meet a prescribed performance standard.  In order to use a non-level boarding alternative, a passenger railroad must submit a detailed plan to the Federal Railroad Administration (FRA) and the Federal Transit Administration (FTA) demonstrating that the selected alternative meets USDOT’s accessibility performance standard efficiently and safely, and in a manner that integrates disabled and non-disabled passengers.  The plan must provide details on deployment, maintenance and operation of the non-level boarding alternative, and FRA and FTA have discretion to modify or disapprove the plan.  If proposing an approach other than car-borne lifts, USDOT also requires railroads to submit a cost/benefit analysis of car-borne lifts versus that other technique.

Compliance with these new level-entry boarding requirements will involve significant cost to passenger railroads.  First, covered railroads must alter design plans for any station platform construction that will begin on or after March 2, 2012.  Passenger railroads that alter or construct station platforms accessing track shared with freight railroads will also incur expensive ongoing work-arounds to the level-entry boarding requirement.

Utah Transit Authority Expands Light Rail Network

Utah Transit Authority (UTA) brought online this week two new extensions of its well-regarded Salt Lake City TRAX light rail network.  The first projects in UTA’s ambitious Frontlines 2015 program, UTA delivered the new West Valley and Mid-Jordan TRAX lines 20% under budget and a year early, boosted by funds the federal New Starts grant program and from a quarter-cent local sales tax increase.

The 5.1-mile West Valley extension ($370 million total cost) forms part of a new TRAX green line that will eventually run from downtown Salt Lake City to the Salt Lake City International Airport.  The 10.6-mile Mid-Jordan extension ($535 million total cost) lengthens the TRAX red line to connect to a new mixed-use transit oriented development dubbed Daybreak.

The two extensions will more than double total TRAX light rail vehicles in operation, including 77 new Siemens S70 low-floor cars and almost double total TRAX system mileage. 


Kiewit/Parsons Awarded Design-Build Contract for Metro Gold Line Extension

Brian Papernik also contributed to this post.

Yesterday, the Metro Gold Line Foothill Extension Construction Authority awarded a $486 million design-build contract to a Kiewit/Parsons joint venture. The contract is for the 11.5 mile extension of the Metro Gold Line light rail from the Sierra Madre Villa station in the City of Pasadena to Citrus Avenue near the boundary of the City of Azusa and the City of Glendora.  The Authority previously awarded a separate design-build contract to Skanska for the Iconic Freeway Structure within the same alignment. 

The Authority made the award decision for the Foothill Extension project using a best value selection methodology, considering both price and technical factors. For this project, the most highly rated proposal had both the lowest price and the highest technical rating. Although not always the case, this result is not uncommon for best value procurements, since the proposer with the highest technical rating is likely to have a better understanding of the project and therefore able to figure out ways to reduce costs and manage risks without adversely impacting quality.

The procurement process started in early in January 2010 with a request for interested teams to submit statements of qualifications. The Authority shortlisted three teams and went through a pre-RFP industry review process, issuing the request for proposals in August 2010.  The Authority received initial proposals in January 2011, entered into discussions with the proposers and obtained final proposals from all three teams in June 2011.

Instead of basing its best value determination on a pre-set formula, the Authority used a "qualitative price/technical tradeoff" methodology--an approach that is generally recommended by procurement experts. Federal agencies have moved toward the tradeoff methodology in part due to concerns that use of point scoring and formulas increases the risk of protests, and also based on a belief that it is appropriate for the selection official to have responsibility for making the selection decision. The selection official is required to analyze the differences between the competing proposals and to make a rational selection decision based on the facts and circumstances of the specific acquisition, consistent with the evaluation factors and subfactors stated in the solicitation documents. A number of state and local transportation agencies have used a tradeoff approach for their design-build contracts, including the Maryland State Highway Administration with respect to its Intercounty Connector contracts, although many state and local agencies remain more comfortable using formulas.

The authors assisted the Authority in this procurement as well as the contracts for the initial "Arroyo Seco" operating segment.

Amtrak Exit Déjà Vu

On June 15, House Transportation and Infrastructure Committee Chairman John Mica and Rep. Bill Shuster, Chairman of the Railroads, Pipelines and Hazardous Material Subcommittee, introduced the Competition for Intercity Passenger Rail in America Act.

Chairman Mica said: “After 40 years of costly and wasteful Soviet-style operations under Amtrak, this proposal encourages private sector competition, investment and operations in U.S. passenger rail service.” The legislation would force Amtrak to sell the Northeast Corridor (“NEC”) to the U.S. government, establish a committee to manage NEC assets, privatize NEC operations, set performance standards for a 2-hour trip from Washington, D.C. to New York City, double train frequency and require the “highest level of private sector participation and financing” and the “lowest level of federal funding” with full implementation in 10 years.  The legislation also would set the ground work for privatizing what are now state-sponsored Amtrak routes as well as the Amtrak transcontinental long-distance trains.

This brings me back to the “go-go” 1980s, when President Reagan and Budget Director David Stockman tried to kill Amtrak.  (I passed the bar and had a job…Sure was glad I didn't go to work for Amtrak; that would have been a short first “real” job.) That effort died in the Senate.

Then there was the Republican Revolution (version 1), the Amtrak Reform and Accountability Act of 1997 and Newt Gingrich’s proposed shuttering of Amtrak. (I had friends that went to work for Amtrak…Couldn't they see the writing on the wall?) The Amtrak Reform Council eventually recommended that Amtrak’s assets be purchased by the government, but that idea was not implemented.

Then on two separate occasions in 2003 and 2005, President George W. Bush and Transportation Secretary Norman Mineta tried to reform or abolish Amtrak.  These efforts also came to nothing.

Is there a role for the private sector in the improvement of U.S. intercity passenger rail service?  Almost certainly.

Is there political support for the proposition that eliminating Amtrak is the best way to improve U.S. intercity passenger rail service on the Northeast Corridor?  On four prior occasions the answer has been “No.”

Protecting Railroad Risk Reduction Data

The Railroad Safety Improvement Act of 2008 (“RSIA”) was the most comprehensive rail safety legislation in several decades.  Many railroads are busy with the rollout of positive train control, but there are many other rail safety initiatives underway at the same time.  This is the second in a series of posts on “what else” is going on in railroad safety, besides positive train control.

FRA is in the midst of a rule making to implement the RSIA requirement that  passenger and freight railroads to establish risk reduction programs.  As part of the programs, railroads would be required to produce detailed analyses of current safety hazards.  Congress concluded that risk reduction programs would not be effective if safety hazard data were subject to FOIA.  In what some might describe as a punt, Congress left open the question of whether risk reduction data should be shielded from use in personal injury litigation.  Instead, Congress mandated that FRA conduct a study on the public interest implications of shielding risk reduction data.

On May 9, 2011, FRA issued a request for public comment on the issue.  FRA observed that comments received on the risk reduction rule “indicate that railroads are reluctant to … provide comprehensive risk analyses that might be used against them in litigation.”  That’s an understatement.

Shielding risk reduction data would encourage railroads to candidly describe current safety hazards.  Candid assessments would lead to more success in reducing railroad safety risks.  So what is the issue?  Pursuant to the Congressional study directive, FRA is seeking comments on whether private litigants would be disadvantaged by risk data protection.  Without a doubt, private litigants could benefit in railroad lawsuits by having access to the risk reduction data.  It is a separate question whether private litigants would be disadvantaged by not having that data.  But for the statutory mandate, railroads would continue to conduct any safety analyses within the protection of attorney-client privilege and plaintiffs would not have the resulting data.  Therefore, plaintiffs will lose nothing if data generated pursuant to the statutory mandate is protected.

FRA has asked for comments on or before July 8, 2011.  Let’s hope that FRA recognizes that risk reduction analyses will not be effective unless the data is protected and that protecting the data will not deprive private litigants of information that they would have in the absence of mandated risk reduction programs.

Rail Safety Changes Besides Postive Train Control

The roll-out of positive train control (“PTC”) is a daunting task for many railroads.  Even without PTC we would still call this a very busy time in the realm of railroad safety.  The Rail Safety Improvement Act of 2008 (“RSIA”), which included the PTC mandate, was the most comprehensive rail safety legislation in several decades.  It would be easy in light of PTC to lose sight of all the other RSIA initiatives underway, but that would be a mistake.

In an effort to help our readers stay current, we will devote some space here to a series of posts on RSIA implementation issues other than PTC.  I will be speaking on this topic next week on a panel with an FRA representative and commuter rail CEO’s at the American Public Transportation Association’s Rail Conference in Boston.

To begin with, let’s review the status of passenger hours of service limits.  RSIA made major changes in the Hours of Service Act, but provided that the changes would not apply to Amtrak and commuter railroads if FRA finalized an alternative set of passenger rail requirements by October 16, 2011.  With that deadline in mind, FRA published a proposed rule in March.

For multiple tour limits, FRA proposes to treat all shifts in two categories.  A “type 1” shift would be any shift within the window from 4 a.m. to 8 p.m.  Generally, the rule would allow a maximum of 14 consecutive type 1 shifts before a two-day off duty period.

A shift that involves any time outside of the 4 a.m. to 8 p.m. window would be a “type 2” shift.  Here is where we get the big changes.  For type 2 shifts, generally the rule would allow a maximum of six consecutive shifts before a 24-hour off duty period.  All type 2 shifts would be analyzed against a defined fatigue threshold, the railroad would be required to mitigate fatigue above the threshold or show that mitigation is not possible.  Type 2 shifts that fall below the fatigue threshold could be treated as type 1 shifts.

Several commuter railroads, trade associations and unions filed comments on the proposed rule.  Passenger railroads and the American Public Transportation Association expressed concern with respect to implementation costs, including the significant costs for new hires, fatigue training costs and licensing fees for fatigue modeling software.   If the comments filed are indicative, rail labor is generally very satisfied with the proposed rule and considers the changes long overdue.

The final rule for passenger rail hours of service is scheduled for release in August 2011, in time to meet the statutory deadline for implementation of October 16, 2011.

Railroad Infrastructure Veteran Kevin Sheys Joins Nossaman as Partner

Kevin M. Sheys joins Nossaman's Infrastructure Practice Group as a partner.  He brings expertise in all areas of railroad transportation, including all aspects of the rail industry, both freight and passenger.  His extensive experience includes successfully representing government entities in railroad construction and relocation projects, advising states and transportation agencies in publicly-funded passenger rail service expansions and infrastructure projects, assisting buyers and sellers in rail line transactions, and counseling clients on a wide range of rail regulatory issues.

Kevin has represented a wide variety of railroad-related entities including:

  • Commuter railroads
  • State sponsors of intercity passenger service
  • Short line and regional freight railroads
  • Public transit agencies
  • Transportation industry contractors and equipment suppliers
  • Ports and other industrial and transportation facility operators

Kevin will be based in the Nossaman's Washington, DC office and work nationally.  He
can be reached at 202.887.1420 or ksheys@nossaman.com.

TIGER II Grantees Announced, LA Metro Sole TIFIA Recipient

 Earlier this week USDOT Secretary LaHood announced the winners of the highly competitive TIGER II grant application cycle. Forty-two capital construction projects and 33 planning projects in 40 states will share nearly $600 million in grant funds.

According to the announcement, USDOT received nearly 1,000 construction grant applications for more than $19 billion from all 50 states, U.S. territories and the District of Columbia.  Roughly 29 percent of TIGER II money goes for road projects, 26 percent for transit, 20 percent for rail projects, 16 percent for ports, four percent for bicycle and pedestrian projects and five percent for planning projects. Grants sizes ranged from $1M for a small road extension project in Franklin County, Washington to $47.7M for Georgia’s Atlanta Streetcar project.  

“These are innovative, 21st century projects that will change the U.S. transportation landscape by strengthening the economy and creating jobs, reducing gridlock and providing safe, affordable and environmentally sustainable transportation choices,” said Secretary LaHood.  “Many of these projects could not have been funded without this program.”

The most significant project (in dollar terms) to receive funding is the Los Angeles County Metropolitan Transportation Authority’s (LA Metro) $1.7B Crenshaw/LAX Light Rail Line Project. LA Metro received a $20 million TIGER II TIFIA Payment, which is anticipated to support a $546 million TIFIA loan, covering nearly a third of project costs. This groundbreaking project is a key piece of Mayor Antonio Villaraigosa’s 30/10 initiative, an effort to accelerate 12 major transit projects in just 10 years, rather than 30 years, using innovative financing backed by the voter approved Measure R sales tax.  

The new 8.5-mile light rail line will provide a critical north-south link in Los Angeles, with six to eight stops connecting the South Bay Region and LAX Airport with major employment centers located in the Westside Region and the downtown area.   LA Metro expects to complete the environmental process in the spring of next year, and construction could begin in late 2011 and be complete between 2016 and 2018

FRA Issues More Details on National Rail Plan

The Federal Railroad Administration (“FRA”) recently published a progress report (PDF) presenting its ambitious vision for the congressionally-mandated National Rail Plan (“NRP”).  The NRP is being developed as part of the Passenger Rail Investment and Improvement Act of 2008.  The progress report builds upon the Preliminary National Rail Plan (PDF) submitted to Congress last year.  When completed, the NRP is expected to present a framework for improving our transportation network for future generations.

The progress report emphasizes the importance of efficient and effective rail infrastructure to the nation’s economy and then details the need to build a nation-wide system of high-speed and intercity passenger rail while preserving the nation’s freight rail network.  FRA’s plans include a tiered network of passenger rail corridors, with each tier tailored to the size and needs of the various areas serviced by the system.  These tiers would include Core Express Corridors, which would consist of high-speed rail service on a dedicated track and connect large urban areas separated by distances of up to 500 miles.  The middle tier, Regional Corridors would use a mix of dedicated and shared track to provide service ranging in speed from 90-125 mph and link mid-size urban areas as well as smaller communities in between.  Finally, Emerging/Feeder routes would use shared track and provide smaller or more distant areas with service speeds of up to 90 mph.  FRA’s goal for each of these tiers is to provide connections with communities, and integrate passenger rail with other modes of public transportation. 

The FRA also uses the report to address its plan for High Performance Freight Rail and the need to improve the nation’s freight rail network to accommodate long-term capacity needs.  The report emphasizes that freight system performance can also be improved by enhancing the connections between individual modes of transportation in order to make the best use of the inherent efficiencies of each mode, including pipelines, airfreight, waterways, and trucking.  Such improvements to corridors and connections will, in turn, enhance the nation’s economic competitiveness. 

Success will require a long-term commitment to passenger rail at the Federal, State, and local levels, similar to the dedication shown to the interstate highway network in the latter half of the 20th century.”

The next steps in the development of the NRP may prove to be the most critical in terms of garnering the political support necessary for an endeavor whose significance and breadth the FRA compares to the development of the interstate highway system in the 1950s.  USDOT and FRA are currently developing criteria to identify regions of the country where Core Express, Regional and Emerging/Feeder corridors could be feasible, analyzing the costs and benefits of high speed and intercity rail and High Performance Rail, and continuing extensive public outreach to identify and aid in the resolution of challenges associated with the initiative.  When issued, the final NRP is expected to include a comprehensive strategy for implementation, including legislative, policy and administrative recommendations.  The ultimate strategy will need to anticipate and overcome the numerous financial and political challenges to such an ambitious undertaking.

Alternative Financing - the New Mainstream?

State and local strategies to bridge the gap between traditional funding and current needs – which has been referred to as alternative finance – are now becoming mainstream. 

Consider Los Angeles Mayor Antonio Villaraigosa’s plan to speed up the development of LA’s transit infrastructure, which the LA Times reports would include financing from ‘a combination of private financing and bonds, such as Build America Bonds, established in the economic recovery bill to cut interest costs for local and state infrastructure projects.’ 

In fact, this model has already been used in several states for highway projects (see Texas and Florida for recent examples).  Recent changes in TIFIA rules and the Obama administration’s so-called ‘livability’ criteria may indicate the federal credit program’s shift of emphasis toward funding transit programs.  And enhanced versions of existing credit programs, such as the proposal to establish and capitalize a National Infrastructure Bank, could present a new vehicle to make these financing options available.

Public agencies responsible for developing high speed rail will also have to consider alternative financing methods.  The ARRA grant funds allocated for these projects, although impressive, will only make up a portion of the monies necessary to provide a viable service.  The choice comes down to this: wait years or even decades for the federal government to dole out enough funds on a pay-as-you-go basis to build the infrastructure we need, or creatively finance critical deals using low cost federal credit, bonds, and private equity so that we can reap the benefits of increased mobility sooner.  After sitting in L.A. traffic this morning, I can certainly tell you which option I would prefer.

Obama Administration Proposes New Role for FTA in Transit Safety Oversight


The Obama Administration recently outlined its proposal for enhanced federal safety oversight of subways, light-rail and municipal bus systems. USDOT Secretary Ray LaHood said, “Now, would we prefer that states regulate their own systems? You bet. But some states simply lack the resources to do that. And, in a pinch, some state will cut safety items from their budgets. For transit passengers those cuts are too dear.”     

The proposed “Public Transportation Safety Program Act of 2009” would authorize the Secretary, through the Federal Transit Administration (FTA), to set and enforce minimum federal transit safety standards and ensure that transit safety efforts grow in tandem with increased ridership.

USDOT is currently prohibited from establishing federal transit safety standards, and instead relies on 27 State Safety Oversight Agencies (SSAs) to monitor transit safety as provided in 49 CFR Part 659.   Following several transit incidents earlier this year, FTA Administrator Peter Rogoff announced the Administration’s intent to enhance federal oversight.  [See “FTA Considering New Safety Oversight for Rail Transit.”]  Funding, independence, and enforcement powers are critical concerns for SSAs, which average less than one staff person per transit agency and in some cases rely on transit revenues from the systems they oversee.  

Under the proposed program, FTA would be authorized to promulgate minimum national standards for rail transit safety, applicable to all fixed rail systems not currently under Federal Railroad Administration jurisdiction. (The legislation would also authorize bus safety regulatory authority but DOT expects its initial focus to be on rail transit safety.)

States could choose to continue transit safety oversight on behalf of FTA, but only when FTA finds that the SSA has:  

  •          an adequate number of fully-trained staff to enforce federal regulations;
  •          been granted sufficient authority by its governor and state legislature to compel compliance by the transit systems it oversees; and
  •          sufficient financial independence from any transit systems under its purview. 


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Denver RTD Releases Lessons Learned Report

The Denver Regional Transportation District (RTD) has released a Lessons Learned Report which gives a realistic and sober review of what’s gone well and what should be done differently to implement the FasTracks program. The FasTracks is the RTD’s voter-approved, multi-billion dollar program to build 122 miles of rail transit, including six new commuter rail and light rail lines and extensions of three existing lines, build 18 miles of bus rapid transit service, add 21,000 new parking spaces, redevelop Denver Union Station and redirect bus service to better connect the eight-county District.

The report reviews lessons learned in nine main areas that can be used throughout the completion of FasTracks itself – currently one of the most ambitious transit expansion efforts in the country – as well as for future programs.  Among those lessons are things that have worked well including:

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Rail Funding Key Issue in FY 2010 Transportation Appropriations

In the last week, much has been written about the submission of more than $50 billion in Track 2 high-speed and intercity passenger rail (HSIPR) funding applications to the Federal Railroad Administration (FRA).  But the resolution of FY 2010 transportation appropriations may be just as important in determining the direction of HSIPR and freight rail projects.

The OneRail Coalition, a coalition of passenger and freight rail stakeholders promoting investment in rail infrastructure, has written to House and Senate appropriators urging the highest possible support for HSIPR in the final FY 2010 Transportation, Housing and Urban Development, and Related Agencies (THUD) appropriations measure. Specifically, OneRail is asking appropriators to endorse the House proposal of $4.0 billion for HSIPR instead of $1.2 billion in included in the Senate-passed measure.  The $4.0 billion included in the House THUD measure would be the equivalent of 50 percent of the amount appropriated for HSIPR in the American Recovery and Reinvestment Act (ARRA) economic stimulus legislation and would dramatically enhance high-speed rail development efforts across the country.

[One Rail organizations include the American Public Transportation Association, Amtrak, American Short Line and Regional Railroad Association, Association of American Railroads, National Association of Railroad Passengers, National Railroad Construction & Maintenance Association, Natural Resources Defense Council, Railway Supply Institute, States for Passenger Rail Coalition, Surface Transportation Policy Partnership, and United Transportation Union.]

OneRail also:

-- Urged appropriations for Amtrak at the authorized amount of $1.84 billion and funding for other rail programs at the highest possible level.

-- Requested that National Infrastructure Investment Grants (the successor to the TIGER program) be funded at $1.1 billion to facilitate further investment in freight rail projects.

-- Asked that House and Senate conferees make rail passenger and freight infrastructure projects eligible expenditures to the degree that general fund revenues help maintain current federal surface transportation programs. Such eligibility was adopted in ARRA.

Also related to rail funding in the FY 2010 THUD measure, more than 20 members of the California Congressional delegation wrote to appropriators urging funding of $50 million for Rail Safety Technology Grants to support installation of Positive Train Control. See House and Senate letters.

The Senate has appointed FY 2010 THUD conferees but the House has not. It is unclear when the final FY 2010 THUD measure may be considered.

Transit P3s On Track

Two potential public-private partnership transit projects appear closer to leaving the station, after several delays. Denver Regional Transportation District (RTD) recently held a public hearing on the Eagle P3 project and is poised to issue a request for proposals to three prequalified/shortlisted teams on September 30th with proposals anticipated in March 2010. Bay Area Rapid Transit (BART) is on an accelerated schedule for its stimulus-revamped Oakland Airport Connector project, with proposals due in late September and contract award slated for December.

The Federal Transit Administration selected both projects to participate in the Public-Private Partnership Pilot Program or Penta P, a program authorized by SAFETEA-LU to demonstrate the pros and cons of P3s for certain new FTA-funded fixed guideway capital projects. FTA officially launched the program in January 2007, focusing on projects that utilize procurement methods that integrate risk-sharing and accelerate project delivery.

FTA recognized the inherent obstacles in transit P3s in its 2007 “Report to Congress on the Costs, Benefits, and Efficiencies of Public-Private Partnerships for Fixed Guideway Capital Projects,” emphasizing that private partners for transit projects have been reluctant to provide long-term equity investment or assume ridership or revenue risk. Overcoming the challenges to private sector equity investment and assumption of revenue risk for transit projects will be a gradual process, even with Penta P support. Denver’s Eagle P3 project, to be delivered as an availability payment concession, calls for the concessionaire to finance the project, although the RTD will assume the farebox risk. While BART’s initial plans for the Oakland Airport Connector called for the private sector to provide financing and share in the farebox risk, BART has since switched gears; the contractor will now design, build, operate and maintain the project, but BART will fund the project itself, using a combination of traditional funding sources and an injection of stimulus funds.

Art in Transit: Isn't it Iconic?

It isn’t often that infrastructure makes the Arts pages of the Los Angeles Times.  So the recent publication of glamorous renderings of transit projects that transcend typical configurations of concrete and steel may herald a new golden age for rail and transit. 

HOK's award-winning design for Orange County Transportation Authority’s Anaheim Regional Transportation Intermodal Center  radically transforms the traditional concept of “art in transit” into transit as art; the designers employ a train station and transit hub as the medium to create an iconic visual symbol:

"As the terminus of the California high-speed [rail] line’s first phase, which will also pass through Union Station in downtown Los Angeles, the station will mark a significant entrance to Orange County – and, in the process, perhaps produce the landmark, the symbol of place and character, that the county has always lacked…"

The Anaheim station is not the only cool transit structure in the works in Southern California. The Metro Gold Line Foothill Extension Construction Authority recently selected an artist to design a bridge billed as an “iconic gateway” to the San Gabriel Valley. The bridge will span the 210 Freeway as part of the Gold Line’s extension and “pay homage to the early cultures and at the same time address recent history.”

Interjecting art into transit is not new. This article highlights the history and value of transit art programs. Such programs, however, have traditionally installed multi-media art pieces in transit stations and adjacent plazas, such as these bold creations appearing in Sound Transit’s recently opened Link Light Rail project. What is new is the use of the transit structures themselves as the artistic medium - resulting in iconic structures that could garner community identification and pride and perhaps, lead to increased ridership.

Image: HOK's design for ARTIC as seen in the Los Angeles Times on 8/27/09

FTA Considering New Safety Oversight for Rail Transit

New subway safety standards may be coming soon to a city near you.  The Federal Transit Administration (FTA) has assembled a team of transportation safety experts to explore rail transit (subway, light rail, and commuter rail) safety reforms, which may extend to bus operations.   

FTA is currently prohibited by law from establishing national safety standards, requiring Federal inspections, or requiring specific operating practices, but that may soon change.  In testimony before the Senate Banking Committee, FTA Administrator Peter Rogoff condemned several recent transit collisions as “unacceptable” and announced the Obama Administration’s intent to pursue reform. 

Most rail transit is free from federal safety oversight. There are exceptions - certain commuter rail systems are funded by FTA but regulated by the Federal Railroad Administration safety regulations.  But the majority of urban rail transit systems are overseen by the State safety oversight agencies. 

Any new safety oversight requirements will probably be tied to FTA’s traditional role as a grant-making agency. Administrator Rogoff highlighted the need for new transit funding, citing a National Transportation Safety Board  preliminary report indicating that the “condition of equipment and age of the rolling stock may have resulted” in the Washington D.C. crash earlier this year, which killed 9 and injured more than 70 passengers.

Aging equipment is a serious concern nationwide.  FTA’s recent rail modernization study surveyed the seven largest transit operators, which carry more than 80% of the nation’s transit passengers.  More than 33% of the assets held in these systems were in marginal condition or had already exceeded their useful life.  Servicing this system’s backlog of unmet needs would cost a staggering $50 billion, by the study’s estimates.

As the new surface transportation authorization process gets underway the Administration’s plans will no doubt provide fodder for vigorous debate.  Administrator Rogoff’s testimony seems to hint that new safety measures may be linked to FTA’s discretionary New Starts program.  In the meantime, look forward to a follow-on FTA study identifying safety critical infrastructure and industry wide “state of good repair” needs.  

Video of the hearing "Rail Modernization: Getting Transit Funding Back on Track," along with written statements from the heads of the Chicago Transit Authority, the Washington Metropolitan Transit Authority, New Jersey Transit, and the Metropolitan Atlanta Rapid Transit Authority are available from the Senate Banking Committee's website.

TxDOT Proposes Rail Division

At the June 2009 meeting of the Texas Transportation Commission, TxDOT Assistant Director Phil Russell provided a first look at a proposed Rail Division for TxDOT, focusing on both passenger and freight rail planning for the future.  If created, the new  Rail Division would have a Rail Division Director, with  four departments under that to-be-named person's purview including Operations, Railroad Crossings, Safety and Project Development.

Commissioners indicated that it would be a wise move to create a Rail Division.  Commissioner Bill Meadows voiced that "the Commission needs to take a leadership position on rail", citing that other states are far ahead of Texas on rail planning and development.

In July 2009, Texas Department of Transportation (TxDOT) officials submitted seventeen preapplications to the Federal Railroad Administration for a variety of rail projects across the state.  The competitive grant program is a part of the American Recovery and Reinvestment Act (ARRA) and advances the Obama Administration’s vision for high-speed intercity passenger rail throughout the nation. In all, $8 billion in ARRA funds, in addition to a little over $90 million in FY 2008 and 2009 federal appropriations are available through this program.  To find out more, you can view a list of TxDOT’s proposed projects.

Cotton Belt PPP: DART and The T Team Up

Dallas Area Rapid Transit (DART) and the Fort Worth Transportation Authority (The T) are in the early phases of procuring a firm to enter into a Public Private Partnership to design, construct, operate, maintain and finance a cross regional passenger rail service known as the Cotton Belt Rail Line starting on or about 2013.   

The Cotton Belt Rail Line PPP project is intended to provide regional rail connectivity for communities along the project corridor to Fort Worth, Dallas-Fort Worth (DFW) Airport, the DART transit network, and major activity centers along the corridor.  This project connects passengers with the Trinity Railway Express service in downtown Fort Worth, and the DART Light Rail System via the Orange Line at DFW Airport, the Green Line in downtown Carrollton, and the Red Line in the Richardson/Plano area.  It also connects with the Addison Transit Center which provides extensive bus connectivity in the north central part of the DART Service Area.  A future connection in downtown Carrollton to the planned Denton County Transportation Authority passenger rail service between Denton and Carrollton, TX is also a possibility.  One of the objectives of the Cotton Belt Rail Line project is to provide a system that interacts seamlessly and efficiently with other transportation systems in the region.

On May 21, 2009 DART and The T issued a Request for Information to identify individuals and firms interested in a PPP for the Cotton Belt Commuter Rail Line and expect to issue a Request for Qualifications (RFQ) by September 2009.  The deadline for filing a Statement of Interest was July 24, 2009. Visit DART's website or check back here for more info.