[Federal Register Volume 63, Number 236 (Wednesday, December 9, 1998)]
[Notices]
[Pages 67976-67979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32649]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration
[FRA Emergency Order No. 21, Notice No. 1]


Northwestern Pacific Railroad; Emergency Order to Prevent 
Operation of Trains on Northwestern Pacific Railroad's Trackage From 
Arcata, California, to Mile Post 63.4 Between Schellville and Napa 
Junction, California

    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 Northwestern 
Pacific Railroad (NWP) of Eureka, California, to discontinue operation 
by anyone of trains on the NWP rail line from mile post 295.5 at 
Arcata, California to mile post 63.4 between Schellville, California 
and Napa Junction, California until the NWP inspects and properly 
repairs its track and grade crossing signals, and it trains its 
employees how to properly maintain the safety of its track and grade 
crossing signals.

Authority

    Authority to enforce Federal railroad safety laws has been 
delegated by the Secretary of Transportation to the Federal Railroad 
Administrator. 49 CFR 1.49. Railroads are subject to FRA's safety 
jurisdiction under the Federal railroad safety laws, 49 U.S.C. 20102, 
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. 20104. These orders may 
impose such ``restrictions and prohibitions . . . that may be necessary 
to abate the situation.'' (Ibid.)

Background

    The NWP operates on a 286-mile line between mile post 295.5 near 
Arcata, California and mile post 63.4 between Schellville, California 
and Napa Junction, California. The North Coast Railroad Authority, a 
California public agency formed pursuant to California Government Code 
Section 93000 et seq., owns and operates that portion of the NWP 
between Healdsburg, mile post 68, and Arcata. Another portion over 
which the NWP operates and for which it is responsible for maintenance, 
Healdsburg to mile post 63.4 near Napa Junction, is owned by the 
Northwestern Pacific Railroad Authority, a joint powers agency 
representing the Golden Gate Bridge, Highway and Transportation 
District, the County of Marin, and the North Coast Railroad Authority. 
Operations are currently being conducted under contract by Rail-Ways, 
Inc.
    The majority of NWP's operations involve the transportation of 
freight; however, in the past, the railroad also has conducted 
passenger operations between Willits and Healdsburg. The NWP connects 
to the California Northern Railroad, another freight railroad, at 
Schellville. It also connects to the California Western Railroad, which 
operates both freight and passenger trains, at Willits. The California 
Western operates over about one mile of NWP trackage in order to 
interchange freight operations with the NWP at Willits and to reach its 
passenger terminal in Willits.
    The NWP traditionally hauls mostly timber and wood products, but it 
also hauls some hazardous materials, especially over the portion of the 
line south of Willits. Maximum authorized train speed on the line is 30 
m.p.h., although train speed over that portion of the line affected by 
Emergency Order No. 14 is restricted to 10 m.p.h.
    The NWP is subject to the jurisdiction of FRA. Portions of its 
operations currently are subject to Emergency Order No. 14 issued on 
June 7, 1990, when the line of railroad was known as the Eureka 
Southern Railroad. Emergency Order No. 14 remains in effect from mile 
post 145.5 near Willits to Ft. Seward, mile post 216.6 It prohibits 
transportation of passengers until the track complies with class 1 
track standards and prohibits transportation of hazardous materials 
until the track complies with class 1 track standards or is designated 
by the railroad as excepted track. Concurrent with this emergency 
order, FRA is amending Emergency Order No. 14 to prohibit the 
transportation of hazardous materials until the track complies with 
class 1 track standards.

Northern Portion, Willits to Arcata

    In 1990, FRA became concerned about the track conditions on the 
NWP, then known as the Eureka Southern Railroad, between Willits and 
Eureka. At the time, the railroad hauled over the line passengers and 
liquified petroleum gas, a regulated hazardous material. FRA found that 
the track between Willits and Eureka did not meet class 1 track 
standards and posed an immediate threat of death or injury to persons. 
FRA issued Emergency Order No. 14 under which the Eureka Southern 
Railroad was prohibited from hauling passengers until the track met 
class 1 track standards and from hauling hazardous materials until the 
track either met class 1 standards or was designated by the railroad as 
excepted. The excepted track provision, found at 49 CFR 213.4, limits 
the hauling of hazardous materials to five cars per train and places 
other restrictions on the designated track.
    On October 1, 1990, because of improved conditions, FRA lifted 
Emergency Order No. 14 between mile posts 142.5 and 145.5, near 
Willits, and between mile posts 216.6 and 284.1, Fort Seward to Eureka. 
Since 1990, the NWP has complied with the terms of the emergency order 
for the remainder of the affected area by discontinuing hauling 
passengers and hazardous materials between Fort Seward and Willits.
    The northern portion of the NWP has been subject to flooding for 
the past several years. Due to flooding which occurred within the last 
year, the NWP has discontinued operations on the northern portion from 
Nashmead (mile post 175.5) to Arcata. The railroad continues to operate 
on the northern portion between Willits and Nashmead. The NWP has 
applied to the Federal Emergency Management Agency (FEMA) for funding 
for repair of flood damage that occurred in 1995, 1997 and 1998. As a 
result of the application, FEMA, with FRA's assistance, recently 
conducted a survey of track conditions between Willits and Eureka. FEMA 
has agreed to provide $1 million to NWP for repair of flood damage.

Southern Portion, Willits to Mile Post 63.4

    In 1997, FRA, in partnership with the California Public Utilities 
Commission

[[Page 67977]]

(CPUC), reviewed NWP's compliance with Federal safety statutes and 
regulations on the portion of the line south of Willits. The review 
revealed widespread noncompliance similar to noncompliance that FRA and 
the CPUC previously had discovered on this line in the past several 
years. In conducting numerous inspections of the NWP in the previous 
years, FRA and CPUC inspectors identified hundreds of defective track 
conditions, many of which became the basis for recommendations for 
civil penalty assessments against the railroad. The railroad frequently 
failed to make corrections even after defective conditions were 
identified by FRA or the CPUC.
    The review conducted by FRA and CPUC also revealed that the NWP was 
not performing required periodic tests of its locomotive air brake 
equipment, and that all of the railroad's locomotives exhibited 
defective conditions which posed a hazard to the personal safety of NWP 
personnel operating the equipment. FRA and the CPUC concluded that the 
NWP was in need of a system-wide program to train its employees to 
recognize safety violations and to perform necessary repairs promptly 
and correctly.
    On June 11, 1997, representatives of FRA and the CPUC met with 
NWP's executive director, Dan Hauser, and its general manager, Jack 
Tremain, as well as two members of the railroad's Board of Directors. 
The group agreed to and signed a Safety Compliance Agreement under 
which the NWP would perform specified repairs and employee training by 
determined deadlines. However, one year after the agreement was 
executed, the NWP had performed only three of the 11 action items 
identified by the Compliance Agreement. On June 28, 1998, the Federal 
Railroad Administrator issued a Compliance Order based mostly upon the 
terms of the prior Agreement. In summary, the Compliance Order, which 
remains in effect, directs the NWP to:
    1. Cease passenger operations between Willits and Schellville until 
the track is repaired to class 1 track standards;
    2. Limit hauling of hazardous materials between Willits and 
Schellville to two cars per train, and prohibit hauling of any 
hazardous materials over trackage that is within 100 feet of a bridge 
or public road and which does not meet class 1 track standards;
    3. Develop and furnish to FRA and the CPUC a track maintenance plan 
and program;
    4. Establish a program of employee training on the Federal Track 
Standards;
    5. Certify abilities of each individual conducting track 
inspections;
    6. Establish a program of employee training regarding inspections 
of locomotive power and equipment;
    7. Certify abilities of each individual conducting inspections of 
locomotive power and equipment;
    8. Certify inspection reports of locomotive power and equipment 
inspections;
    9. Certify that proper repairs have been made of all defects found 
as a result of locomotive power and equipment inspections;
    10. Perform testing on passenger and freight cars relative to 
single car tests and repair tests.
    FRA reviewed NWP's compliance with the Compliance Order in 
September and October, 1998, and found that the railroad is not 
following many of the Order's directives. Track inspections conducted 
by FRA and the CPUC discovered that the trackage within 100 feet of 
bridges and public road between Willits and mile post 63.4, over which 
hazardous material are hauled, does not meet class 1 track standards. 
The railroad has failed to develop a track maintenance program, and it 
dropped its training of track inspection personnel after only two 
classes of a 24-class training program. Furthermore, the NWP has an 
inadequate number of employees who are qualified to inspect track.

Recent Safety Surveys

    In light of the NWP's failure to comply with the Compliance Order 
after several months, FRA and the CPUC surveyed operations on the 
southern portion of the railroad in September and October, 1998, to 
assess its overall safety. In October and November, 1998, FRA 
inspectors accompanied inspectors from the FEMA on surveys of track 
damage caused by past flooding on the northern portion. In both 
portions, the inspectors found numerous defects that pose an immediate 
hazard of death or injury to persons.

Grade Crossing Signals

    FRA's regulations addressing grade crossing signal system safety, 
found at 49 CFR part 234, require railroads to repair, ``without undue 
delay,'' any essential component of a grade crossing signal that fails 
to perform its intended function, and until the repair is made, the 
railroad is to provide alternative measures of safeguarding the 
crossing. See 49 CFR 234.207. These temporary measures, delineated in 
49 CFR 234.105, provide for manual flagging by railroad personnel 
whenever a train must occupy a grade crossing where the signals are not 
properly functioning. Properly functioning grade crossing signals, and 
temporary flagging in the event of a signal failure, are absolutely 
essential to the safety of the grade crossing. Trains traveling through 
a grade crossing, even at very slow speeds, are not able to stop 
suddenly to avoid a car in the crossing. Therefore, motorists 
attempting to cross a grade crossing must be adequately warned about a 
train's approach so that a potentially deadly accident can be averted.
    In recent inspections of grade crossings on the NWP and from 
information provided by the railroad itself, FRA and CPUC inspectors 
found that 32 of the railroad's 127 grade crossing signals are not 
operational. While the railroad has instructed train crews to stop and 
flag each crossing where the signal is out of service, FRA and CPUC 
inspectors found one instance when a train crew did not perform this 
safety duty. Furthermore, many of the grade crossing signals have been 
out of service for several months, in violation of the Federal 
regulations' requirement to repair the signals ``without undue delay.''
    Many of the grade crossings where the signals are out of service 
are situated in towns along the NWP line. In Petaluma, one grade 
crossing serves 22,000 vehicles per day, while another serves 13,000 
every day. The NWP operates four to six train movements through these 
crossings each day, Monday through Friday. At other crossings where the 
grade crossing signals are out of service, the daily vehicle count 
ranges from 200 to 6,000. Vehicles in these counts include trucks 
carrying hazardous materials, including flammable substances.
    FRA and CPUC inspectors also found that NWP employees generally 
lack the supervision, knowledge, test equipment, and supplies necessary 
to adequately maintain the grade crossing signals. The railroad's two 
signal maintainers have no signal standards or instructions, nor are 
they knowledgeable about all necessary signal maintenance. They do not 
have proper test equipment, such as meters, meggers, relay testers, and 
shunts. Tests required by FRA's grade crossing safety regulations are 
past due at all 127 grade crossings, including relay, insulation 
resistance, and warning tests. In addition, the NWP lacks sufficient 
parts and materials to adequately maintain the warning system. Numerous 
NWP circuit plans are out-dated, illegible, or simply non-existent. 
They need to be corrected,

[[Page 67978]]

redrawn , and in some cases, redesigned, yet the railroad lacks 
procedures to correct or redraw circuit plans.

Track Safety

    FRA's track safety regulations, found at 49 CFR part 213, prescribe 
minimum safety requirements for railroad track. There are six classes 
of track defining maximum speed and minimum maintenance requirements. 
By designating track as a certain class, a railroad commits to 
maintaining that track to the standards established by the track safety 
regulations for that class. Much of the NWP's trackage from Willits to 
Schellville is designated as class 2 track. However, the numerous track 
defects found by FRA and the CPUC, as well as the NWP's apparent lack 
of commitment to properly repair the track, indicate that much of the 
track does not meet even the standards for class 1, the lowest class of 
track.
    FRA and the CPUC conducted track inspections on the southern 
portion of the NWP between September 28 and October 15, 1998. A total 
of six inspections covered the line from mile post 63.4 between 
Schellville and Napa Junction to Willits at mile post 139.5. Inspectors 
identified 298 defective conditions in 148 miles of track. The majority 
of the defects (254) were defective crosstie conditions, including 
defective joint ties and ties not effectively distributed to support 39 
feet of track. In many places, the ties were broken, split, or impaired 
to the extent that they allowed the ballast to work through. They could 
not hold spikes and they were allowing the tie plates or the base of 
the rail to move laterally more than a half inch.
    These defects pose particularly serious threats to safety. 
Effective ballast and crossties provide the lateral and vertical 
support of the rail to prevent trains from derailing. Without this 
support, the track gage, the distance between the inside faces of the 
rail heads, may become too wide or too tight. Gage that is either wider 
or narrower than allowed by FRA regulation greatly increases the 
possibility of derailment due to car or locomotive wheels dropping off 
the rails.
    The FRA and CPUC track inspectors also found 12 areas where water 
carrying facilities associated with the track were inadequate to 
perform proper drainage. Two of these drainage facilities are 
associated with railroad bridges. At one location, a wooden box culvert 
has collapsed. Under the regulations (49 CFR Sec. 213.33) each drainage 
facility associated with a track structure must be kept free of 
obstruction to accommodate expected water flow for the area it serves. 
If drainage surrounding the track is not adequate, the condition can 
lead to wash-outs which will disturb the lateral and vertical support 
of the rail causing wide or tight gage and possible derailments. 
Adequate drainage is especially important for the NWP during the winter 
months when rainfall typically is greater.
    Finally, the track safety regulations require that vegetation 
immediately adjacent to the track bed must be controlled so that it 
does not pose a fire hazard, obstruct visibility of signs and signals, 
interfere with railroad employees' trackside duties, prevent proper 
functioning of signals, or prevent employees from inspecting moving 
equipment. See 49 CFR 213.37. FRA and CPUC inspectors report that in 
many areas along the NWP trackage they inspected, the vegetation 
obstructs any view of the track structure. Some vegetation creates a 
fire hazard to timber bridges, trestles, and wooden box culverts. Other 
vegetation obstructs the visibility of signs and signals along the 
right-of-way and at grade crossings. While vegetation naturally occurs 
and re-occurs along any railroad track, it cannot be allowed to 
flourish to the extent that it inhibits the safe operation of the 
railroad. Vegetation that has been allowed to grow to the point where 
signals cannot operate properly or cannot be seen, or where it prevents 
railroad personnel from inspecting the track, or where it becomes 
conducive to setting fire to bridges and other wooden track structures, 
poses an imminent threat to the safety to railroad employees and to the 
traveling public.
    Between November 4 and November 13, 1998, FRA and FEMA inspectors 
surveyed 262 separate locations on the northern portion of the railroad 
that the NWP identified as storm damaged. The inspectors found numerous 
locations where proper drainage is not possible because the drainage 
facilities are plugged or in disrepair or because ditches are plugged, 
overgrown or inadequate. The area between Willits and Arcata is noted 
for its constant earth movement, mud flows, sinks and heaves. Most of 
the repairs that have been made by the NWP to alleviate the flooding 
problems have been temporary in nature. At some locations, the railroad 
inserted new culverts to drain water from ponded areas but failed to 
install the culverts at the correct depth or angle. In numerous 
locations, the NWP has used plastic and rubber pipe, rather than metal 
pipe, which is quickly crushed by the weight of work trains. It is not 
likely that the drainage facilities in place will be adequate to 
withstand the next rainy season this winter.
    Because of inadequate drainage and poor subgrade, the railroad has 
difficulty maintaining proper surface and alignment of track. The FRA 
and FEMA inspectors found numerous locations where the track surface, 
alignment, and crossties were unacceptable for class 1 track standards. 
In addition, overgrown vegetation at many locations brushes rolling 
stock and prevents railroad personnel from inspecting the track. In 
some locations, the vegetation poses a fire hazard to track carrying 
structures.

Finding and Order

    The results of the surveys by FRA, CPUC, and FEMA inspectors of 
tracks and signals along the NWP line have led FRA to conclude that 
continued use of this rail line poses an imminent and unacceptable 
threat to public safety. Furthermore, a past pattern of failure by the 
NWP to comply with Federal railroad safety laws and regulations 
persuades FRA that reliance upon the cooperation of the NWP to make the 
necessary repairs to the track and to the signals on any part of its 
rail line 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 
Northwestern Pacific Railroad shall discontinue, and shall not permit, 
the operation of trains over its trackage between mile post 295.5 near 
Arcata and mile post 63.4 between Schellville and Napa Junction while 
this Emergency Order remains in effect. This Emergency Order is not 
meant to prohibit the operation of work trains operated for the 
specific and sole purpose of effecting repairs on the railroad. Maximum 
speed of such train movements shall be 10 m.p.h.

Relief

    The NWP may obtain full relief from this Emergency Order by 
performing the following requirements:
    (1) Properly repair and inspect all grade crossing signals and 
certify to the Federal Railroad Administrator that all necessary 
repairs and inspections have been performed and that all required tests 
are up-to-date.
    (2) Adopt a set of grade crossing signal standards and instructions 
acceptable by FRA. The standards and instructions should be submitted 
in writing to the Regional Administrator

[[Page 67979]]

for Region 7 who will notify the NWP within 14 days of the submission 
whether or not the standards and instructions are approved. If they are 
not approved, the Regional Administrator will describe what additional 
measures must be taken to secure approval.
    (3) Update, correct and/or redraw circuit plans for each grade 
crossing signal system to meet compliance with 49 CFR Secs. 234.201 and 
234.203. A list of locations of the updated, corrected or redrawn 
circuit plans should be submitted to the Regional Administrator for 
Region 7.
    (4) Provide proper and adequate test equipment for signal 
maintainers.
    (5) Repair all track not subject to Emergency Order No. 14 to class 
1 track standards as detailed in 49 CFR Part 213. [Note: Emergency 
Order No. 14 already requires the Northwestern Pacific Railroad to 
repair all track subject to that order to class 1 track standards or 
designate the track as excepted track in accordance with 49 CFR 213.4. 
By separate notice, Emergency Order No. 14 is being amended to require 
repair to class 1 track standards for the hauling of passengers and all 
hazardous materials. Otherwise, the railroad may designate the track 
still subject to that order as excepted.]
    (6) Clear all vegetation from drainage facilities and away from 
signs and signals and track bed so that the track meets the 
requirements of 49 CFR 213.37;
    (7) Furnish FRA with a 12-month track maintenance plan that 
includes, at a minimum the number and location (mile by mile) of 
crossties to be installed, location and extent of rail surfacing, 
location and nature of drainage facility maintenance, location and 
nature of vegetation control, extent of rail replacement, schedule for 
accomplishing programs, and criteria used to determine the location and 
extent of tie renewal and replacement (e.g., traffic density, track 
inspection data, and accident history).
    (8) Establish a program of employee training on the Federal Track 
Standards to ensure that employees performing inspection, maintenance, 
and restoration work are qualified in accordance with 49 CFR 213.7. The 
training program shall ensure that track inspectors, track foremen, and 
first level track supervisors can assure compliance with the 
requirements of 49 CFR part 213. FRA is to be furnished a copy of the 
training program.
    (9) Certify in writing that each individual conducting track 
inspections has sufficient knowledge, skills, and ability to 
successfully conduct the types of inspections which will be performed 
by that individual. Records of that certification are to be maintained 
by the railroad.
    (10) Obtain approval from the Federal Railroad Administrator that 
all of the requirements of this Emergency Order have been met and 
properly performed. To obtain relief, NWP should inform in writing the 
Federal Railroad Administrator, with a copy to the Regional 
Administrator of FRA's Region 7, that it believes all of the 
requirements of this Emergency Order have been met. Within 30 days of 
the notification, FRA will conduct inspections of the line, and within 
seven days of the inspections, will inform the railroad in writing 
whether this Emergency Order is lifted. If FRA does not lift the order, 
the written response will specifically describe what additional 
measures need to be taken to meet all of the requirements of this 
Emergency Order.

Partial Relief

    In order for FRA to consider granting partial relief from this 
Emergency Order, the NWP must first meet all of the system-wide 
requirements, i.e., requirements 2, 4, 7, 8, and 9. The NWP may then 
obtain partial relief for any portion of the line for which all of the 
requirements of this Emergency Order are met. NWP should inform in 
writing the Federal Railroad Administrator, with a copy to the Regional 
Administrator of FRA's Region 7, that it believes all of the 
requirements of this Emergency Order have been met for a specified 
section of the railroad's line. Within 30 days of the notification, FRA 
will conduct inspections of that specified portion of the line, and 
within seven days of the inspections, will inform the railroad in 
writing whether this Emergency Order is lifted for that specified 
portion. If FRA does not lift the order for the specified portion, the 
written response will specifically describe what additional measures 
need to be taken to meet all of the requirements of this Emergency 
Order.

Penalties

    Any violation of this order shall subject the person committing the 
violation to a civil penalty of up to $22,000. 49 U.S.C. 21301. FRA 
may, through the Attorney General, also seek injunctive relief to 
enforce this order. 49 U.S.C. 20112.

Effective Date and Notice to Affected Persons

    This Emergency Order shall take effect at 6:01 p.m. (PST) on 
November 27, 1998, and apply to all operations of trains 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: Northwestern 
Pacific Railroad Authority through the North Coast Railroad Authority 
Board of Directors, the Golden Gate Bridge, Highway and Transportation 
District, and Marin County. A copy will also be sent to Rail-Ways, Inc.

Review

    Opportunity for formal review of this Emergency Order will be 
provided in accordance with 49 U.S.C. 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 211.47, 211.71, 211.73, 
211.75, and 211.77.

    Issued in Washington, D.C. on November 25, 1998.
Jolene M. Molitoris,
Administrator.
[FR Doc. 98-32649 Filed 12-8-98; 8:45 am]
BILLING CODE 4910-06-P