Infra Insight Blog : written by Nossaman LLP Infrastructure attorneys, covers infrastructure project delivery, including Public-Private Partnerships, Operations & Management Agreements, policy, and news.

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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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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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.
 

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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.
 

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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
 

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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.

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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.

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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.

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