[Federal Register Volume 61, Number 33 (Friday, February 16, 1996)]
[Notices]
[Pages 6284-6286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3592]



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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
[FRA Emergency Order No. 19,
Notice No. 1]


Tonawanda Island Railroad; Emergency Order To Prevent Operation 
of Trains on Bridge 7708810

    The Federal Railroad Administration (FRA) of the United States 
Department of Transportation (DOT) has determined that public safety 
compels issuance of this Emergency Order requiring the Tonawanda Island 
Railroad (TIRL) of North Tonawanda, New York, to discontinue operation 
of trains or any railroad on-track equipment on a railroad bridge 
numbered 7708810 which spans the Little River between North Tonawanda 
and Tonawanda Island, New York, until necessary repairs have been made 
to the bridge.

Authority

    Authority to enforce Federal railroad safety laws has been 
delegated by the Secretary of Transportation to the Federal Railroad 
Administrator. 49 CFR Sec. 1.49. Railroads are subject to FRA's safety 
jurisdiction under the Federal railroad safety laws, 49 U.S.C. 
Secs. 20101, 20103. FRA is authorized to issue emergency orders where 
an unsafe condition or practice ``causes an emergency situation 
involving a hazard of death or personal injury.'' 49 U.S.C. Sec. 20104. 
These orders may impose such ``restrictions and prohibitions * * * that 
may be necessary to abate the situation.'' (Ibid.)

Background

    The Tonawanda Island Railroad (TIRL), a common carrier, is a part 
of the general system of railroads. Its owner is Mr. Corigan Sanoian, 
P.E., of Niagara Falls, New York.
    The TIRL operates over about a 1.5 miles of track, extending from a 
junction with the Conrail Niagara Branch in North Tonawanda, New York, 
to Tonawanda Island. The single main track route includes two highway 
rail grade crossings. One crossing, at River Road in North Tonawanda, 
is equipped with automated warning devices. The other highway rail 
grade crossing is located at Main Street in North Tonawanda and is 
equipped with traffic control signals on each side of the crossing.
    In addition to the main track, several auxiliary tracks are in 
service, both at the junction and on Tonawanda Island. To access 
Tonawanda Island, the TIRL crosses the Little River via a wood and 
metal bridge identified by a number affixed to its westernmost bent, 
7708810. For the purposes of this Emergency Order, the bridge is 
hereinafter designated as ``Bridge 7708810.'' The bridge consists of 
two timber trestle approaches, one on each side of a steel through 
truss swing span. The swing span has been inoperative for many years.
    The Little River is a navigable waterway formed by a channel of the 
Niagara River, Ellicott Creek and 

[[Page 6285]]
Tonawanda Creek. It flows into the Niagara River approximately 10 miles 
above Niagara Falls. The Little River is the site of a significant 
concentration of pleasure boating during the summer. A marina is 
located adjacent to and downstream from the bridge. A highway bridge is 
located about 300 feet downstream.
    The sole piece of rolling stock regularly used by the TIRL is a 50-
ton industrial switcher type locomotive. The railroad's current 
customer base includes a consignee on Tonawanda Island which receives 
wood fibre in box cars. There are no consignors. Until approximately 
one year ago, the TIRL delivered building materials to another 
consignee on Tonawanda Island. However, that consignee discontinued 
service from the TIRL after Mr. Sanoian expressed an intent to shut 
down the railroad. Total traffic for TIRL in 1995 was about 51 cars.
    FRA's history of inspecting the TIRL under Mr. Sanoian's ownership 
dates back to 1990. The following chronology highlights FRA activity 
with respect to the TIRL:
    October 11, 1990: FRA Chief Inspector John Conklin conducted an 
operating practices inspection and issued inspection report No. 72, 
informing Mr. Sanoian that the TIRL was not in compliance with 49 CFR 
Part 225 (Accident/Incident Reporting), as well as 49 CFR Part 228 
(Hours of Service Recordkeeping).
    December 17, 1990: FRA Railroad Safety Inspector Daniel Feneziani 
inspected the TIRL locomotive and issued inspection report No. 171, 
informing Mr. Sanoian of 17 items not in compliance with the Federal 
railroad safety standards.
    February 28, 1991: Chief Inspector Conklin conducted an operating 
practices inspection and issued inspection report No. 30, informing Mr. 
Sanoian that the TIRL still was not in compliance with 49 CFR Part 225.
    December 10, 1992: Chief Inspector Conklin conducted an inspection 
of operating practices and issued inspection report No. 50, informing 
Mr. Sanoian that the TIRL was not in compliance with 49 CFR Parts 225, 
228 and 240 (Qualification and Certification of Locomotive Engineers).
    October 21, 1993: FRA Chief Inspectors Patrick Sullivan and William 
Robbins inspected the TIRL locomotive and issued inspection report No. 
05, informing Mr. Sanoian of 22 items not in compliance with Federal 
railroad safety standards.
    December 7, 1994: Chief Inspector Sullivan conducted an inspection 
of operating practices and issued inspection report No. 27, informing 
Mr. Sanoian that the TIRL was not in compliance with 49 CFR Parts 217 
(Railroad Operating Rules), 225, 228, and 240.
    August 9, 1995: FRA Principal Railroad Safety Inspector Bernard T. 
Lutz inspected the TIRL locomotive and issued inspection report No. 67, 
notifying Mr. Sanoian of 15 items of non-compliance with Federal 
railroad safety standards.
    October 13, 1995: FRA Regional Administrator Mark McKeon mailed Mr. 
Sanoian a certified letter in which he enumerated the locomotive's 
conditions of non-compliance with the Federal railroad safety 
standards. The letter noted that some of the conditions have existed 
since December 17, 1990. The letter also acknowledged FRA's awareness 
that the TIRL is a small business with limited resources. Regional 
Administrator McKeon offered to discuss the defects with Mr. Sanoian in 
an effort to work with him to bring the railroad into compliance. 
United States Post Office records indicate that a notice of the 
certified letter was served on Mr. Sanoian on October 17, October 22, 
and November 2, before it was returned to the sender as ``unclaimed.''
    January 2 and January 4, 1996: FRA Railroad Safety Inspector Ronald 
Anderson inspected bridge 7708810. His inspection was in response to 
concerns raised by a New York State Department of Transportation 
Railroad Safety Inspector. Inspector Anderson concluded that the bridge 
is unsafe. While inspecting the bridge on January 2, 1996, Inspector 
Anderson fell through the bridge due to the deteriorated condition of 
the bridge timbers.
    January 12, 1996: Inspector Anderson and New York State Department 
of Transportation Inspector Keith McClain met with Mr. Sanoian to 
discuss the condition of the bridge. Mr. Sanoian disagreed with 
Inspector Anderson's assessment of the bridge and stated his belief 
that the bridge was safe for a load of 500,000 pounds.
    January 15, 1996: Regional Administrator McKeon and Railroad Safety 
Inspector Michael Ziolkowski met with Mr. Sanoian to discuss both the 
locomotive and the bridge. Although he did not agree that the bridge 
was unsafe, Mr. Sanoian stated that he would not operate over it until 
it had been repaired and had been inspected by an FRA representative. 
He further stated that the locomotive would not be used until it was 
repaired.
    Regional Administrator McKeon hand-delivered to Mr. Sanoian a copy 
of the letter of October 13, 1995, which previously had been returned 
to FRA unclaimed.
    January 16, 1996: Regional Administrator McKeon prepared and signed 
a letter confirming the discussions of January 15. The letter, dated 
January 16, 1995, stated in part:

    The TIRL bridge is unsafe for the movement of trains, 
locomotives and other rolling stock. The bridge must not be operated 
over until it is repaired.

The letter noted Mr. Sanoian's verbal assurances that he had obtained 
the services of a contractor to repair the bridge and that he would 
provide FRA with an opportunity to inspect the bridge once the repairs 
were made. He also agreed to repair the locomotive before using it 
again.
    The letter further stated that unless the TIRL took immediate steps 
to repair the bridge, Regional Administrator McKeon would recommend 
issuance of an Emergency Order prohibiting its use.
    January 17, 1996: Inspector Ziolkowski hand-delivered the January 
16 letter to Mr. Sanoian. Mr. Sanoian stated to Inspector Ziolkowski 
that the bridge did not have ``a structural problem'' but that it had a 
``lateral problem.''
    January 18, 1996: During a telephone conference with Regional 
Administrator McKeon and Deputy Regional Administrator Lawrence 
Hasvold, Mr. Sanoian requested permission to use the locomotive to move 
material to repair the bridge. Regional Administrator McKeon advised 
Mr. Sanoian that the locomotive could not be used until it was in 
compliance with the applicable Federal regulations.
    January 19-22, 1996: The TIRL received loaded boxcar RBOX 40945 in 
interchange from Conrail, moved it across the bridge, and placed it at 
the consignee's facility on Tonawanda Island. This move presumably was 
made with the railroad's only locomotive.
    January 25, 1996: Principal Inspector Lutz again inspected the TIRL 
locomotive and issued inspection report No. 1, informing Mr. Sanoian of 
14 items not in compliance with Federal railroad safety standards. As a 
result of the inspection, Inspector Lutz removed the TIRL locomotive 
from service by issuing a Special Notice for Repairs, Form FRA 6180 
(``Form 8''). A copy of the form was placed in the locomotive cab.
    January 26, 1996: Inspector Ziolkowski hand-delivered a copy of the 
Form 8 to Mr. Sanoian. Despite the fact that the boxcar was placed on 
the trailing end of a stub track with the locomotive ahead of it, Mr. 
Sanoian 

[[Page 6286]]
stated that he had not moved the locomotive and could not have done so 
because it ``had no air.''
    January 29, 1996: FRA Inspector Ron Marx conducted a track 
inspection on the TIRL and identified five deficiencies, including a 
five-and-one-sixteenth-inch cross level deviation on Bridge 7708810. 
This serious track defect does not meet even the minimum track geometry 
standards contained in 49 CFR Part 213. In addition, the added load 
placed on one rail by a downward tilt of the track to the downstream 
side further overloads the already severely degraded bridge structural 
members supporting the bridge timbers to which that rail is attached. 
Inspector Marx also found combustible debris located against the 
southeast corner of the bridge.
    January 29-31, 1996: Representatives of Parsons Brinckerhoff, Quade 
and Douglas, Inc. inspected Bridge 7708810. Parsons Brinckerhoff, an 
engineering consulting firm with nationally recognized expertise in 
bridges, including wooden structures, is under contract to DOT to 
inspect Bridge 7708810 and to advise FRA of the bridge's structural 
condition. Parsons Brinckerhoff evaluated the bridge in accordance with 
accepted principles of structural engineering as contained in the 
``Manual for Railway Engineering'' published by the American Railway 
Engineering Association. Parsons Brinckerhoff determined, and reported 
to FRA, that the bridge is unsafe, even for the movement of TIRL's 50-
ton locomotive.

Condition of the bridge

    The investigation performed by Parsons Brinckerhoff on behalf of 
FRA disclosed that bridge 7708810 is in need of repair and should be 
closed to all rail traffic until adequate repairs have been made. A 
report of the investigation notes that severe deterioration and 
distress exist in the three northern stringers of the westernmost span 
of the bridge structure. The damage includes severe section loss caused 
by fungal attack, crushing of the bearing surfaces due to an inadequate 
bearing area, and horizontal shear cracks along most of the length of 
the stringers. The three stringers are so badly deteriorated that they 
are considered as failed. Because of the complete lack of support under 
one rail, the entire span is rated zero for live load capacity.
    Failure of the bridge under load could have very serious 
consequences. In addition to killing or injuring railroad crew members, 
failure of the bridge also could kill or injure pleasure boaters on the 
river or at the marina. A catastrophic failure of the bridge causing 
any pollution of the Niagara River, whether from locomotive diesel fuel 
or from the contents of a boxcar, could have international impact. 
Furthermore, failure of the railroad bridge over the fast-moving 
current could damage the nearby highway bridge.

Finding and Order

    The results of bridge engineers' inspection of Bridge 7708810 have 
led FRA to conclude that any future use of the bridge poses an imminent 
and unacceptable threat to public safety. A past pattern of failure by 
the TIRL to comply with Federal railroad safety laws and regulations 
persuades FRA that reliance upon the cooperation of the TIRL to repair 
the bridge to safe condition is inadequate to protect public safety. I 
find that the unsafe conditions discussed above create an emergency 
situation involving a hazard of death or injury to persons. 
Accordingly, pursuant to the authority of 49 U.S.C. Sec. 20104, 
delegated to me by the Secretary of Transportation (49 CFR Sec. 1.49) 
it is ordered that the Tonawanda Island Railroad shall discontinue, and 
shall not permit, the operation of trains or any railroad on-track 
equipment over Bridge 7708810 while this Emergency Order remains in 
effect.

Relief

    The Tonawanda Island Railroad may obtain relief from this Emergency 
Order by providing the Federal Railroad Administrator with a report of 
inspection and evaluation of repairs, indicating to FRA's satisfaction 
that the Bridge 7708810 has been acceptably repaired. The report should 
be prepared by an engineer who is technically proficient and legally 
competent in the field of railroad bridge engineering, and it should 
state that the capacity of the bridge to carry safely railroad cars and 
locomotives has been restored. The configuration and weights of the 
loads for which the determination has been made should be stated in the 
report. Upon FRA's approval of the bridge engineer's assessment of the 
bridge restoration, and following an inspection by FRA if the agency 
deems it necessary, the Administrator will rescind this Emergency 
Order.

Penalties

    Any violation of this order shall subject the person committing the 
violation to a civil penalty of up to $20,000. 49 U.S.C. Sec. 21301. 
FRA may, through the Attorney General, also seek injunctive relief to 
enforce this order. 49 U.S.C. Sec. 20112.

Effective Date and Notice to Affected Persons

    This Emergency Order shall take effect at 12:01 a.m. (EST) on 
February 13, 1996, and apply to all operations of trains or railroad 
on-track equipment on Bridge 7708810 on or after that time. Notice of 
this Emergency Order will be provided by publishing it in the Federal 
Register. Copies of this Emergency Order will be sent by mail or 
facsimile prior to publication to Mr. Corigan Sanoian of the Tonawanda 
Island Railroad, the Consolidated Rail Corporation, International 
Filler Corporation, the City of North Tonawanda, New York Department of 
Transportation, and the Association of American Railroads.

Review

    Opportunity for formal review of this Emergency Order will be 
provided in accordance with 49 U.S.C. Sec. 20104(b) and section 554 of 
Title 5 of the United States Code. Administrative procedures governing 
such review are found at 49 CFR part 211. See 49 CFR Secs. 211.47, 
211.71, 211.73, 211.75, and 211.77.

    Issued in Washington, D.C. on February 12, 1996.
Jolene M. Molitoris,
Administrator.
[FR Doc. 96-3592 Filed 2-15-96; 8:45 am]
BILLING CODE 4910-06-P