The major purpose of this research was to identify barriers to the agreement process and to propose remedies to effectively use strategies and institutional arrangements to facilitate beneficial relationships between railroads and public agencies.
Major concerns and points of contention revolve around indemnification in general, the assignment of environmental and other risks, and related financial payments.
The sovereign immunity issue is one of the major ones and of great concern to Amtrak. From Amtrak’s point of view, the process would be facilitated by every State having legislation enabling them to indemnify. The major concern here is related to environmental risk.
The cost and availability of protective liability insurance can be an issue, since the reimbursable insurance limits set forth in current Federal regulations may be insufficient.
The price of the easement/acquisition has not been a contentious issue. The major issue in ROW acquisition is not money/price but State rights vs. Amtrak’s “Federal” right in ROW acquisition. There seems to be uncertainty as to what rights Amtrak has under its Federal charter.
The last area identified as needing improvement revolves around the simple mechanics of the process. It may be stating the obvious, but coordination on projects is very important.
The details of the engineering/operating agreements are the major stumbling blocks and source of delay, not ROW issues. Separating the ROW agreement from the engineering agreement would simplify and speed up the ROW process but not necessarily the overall process.
An agreed-on series of coordination steps with agreed-on timelines theoretically is possible. It would appear possible for Amtrak to anticipate the needed review workload, if the SDOTs could provide Amtrak with a firm schedule of which projects will be referred to Amtrak over the course of the next year.
The next step in the process is to share the results of this research with the stakeholders within the NEC, both SDOT’s and Amtrak, in order to highlight the shared concerns and problems identified by the participants, and provide an additional forum for further comment.
Conduct stakeholder web conference - In order to meet this objective FHWA should organize and conduct a web conference (a "webinar") with representatives from SDOTs within the NEC, FHWA Division offices, Amtrak and FHWA Headquarters personnel that participated in the interviews or the webinar conducted as part of the research. Personnel from the effected agencies who have experience in the subject matter, but who could not participate in the original webinar or interviews would also be invited.
The issue of indemnification and sovereign immunity is too big of a problem for FHWA to handle on its own. Ultimate resolution would require the passage of special legislation in each of the States and perhaps even amending State constitutions. However, FHWA could pursue a couple of avenues to make the liability issue less of a problem in negotiations between Amtrak and the State DOT’s.
Review contractor liability limits in the CFR–Conduct a review of limits and requirements for liability insurance in 23 CFR 646 and update as required. It is generally agreed that the 1982 limits in 23 CFR 646 are low by current insurance standards. More realistic limits would eliminate the need for SDOTs to seek case-by-case Federal exemption to pay the higher limits, and remove a potential sticking point from their negotiations with Amtrak. The need to apply for case-by-case exemptions can add additional time to the project-development process and places an additional burden on all parties including FHWA.
It was learned that the FHWA Office of Program Administration had looked into this problem three years ago in response to complaints from the State of Alabama and the railroad industry. They had attempted to get data to support requests for higher limits, but were unsuccessful. They let the matter drop because they had no data to support a Regulatory Impact Analysis that would be required to support a proposed rulemaking.
Short of doing a Regulatory Impact Analysis and a formal rulemaking, FHWA could do an internal poll of the Division Offices as a first step in addressing this problem. The Division Administrators review the waiver requests, and grant or deny the requests. The results of this poll would allow one to determine how many waiver requests are received, how many are granted and denied, what are the dollar values of the individual requests, and what level of effort is involved in reviewing these requests. The results of this effort would determine whether or not the issue should be pursued further through a formal rule making by providing data on how many waiver requests the Division Offices actually process. It may also be an indirect way of getting at an appropriate level for increased limits given that the waiver requests should be a reflection of what the railroads feel is an appropriate level for liability coverage at current prices.
Explore the concept of the “environmental risk fee”–Look into the “environmental risk fee” proposed by Amtrak and used by PennDOT as a way of getting around the indemnification issue associated with responsibility for environmental cleanup costs. FHWA could meet with Amtrak to determine the details of their approach, and meet with PennDOT to get further details on their experience in negotiating the fee with Amtrak and their reasons for accepting the fee and paying for it without being reimbursed by FHWA. If it was found that the concept was worth pursuing, FHWA could then determine what would be required to revise current Federal regulations in order to make this a reimbursable project expense. The SDOTs did not appear to be opposed to an “environmental risk fee” but were more concerned about the details of how the fee was set and the fact that if they accepted Amtrak’s offer they could not be reimbursed for its cost under current Federal regulations. Solving this problem would eliminate the major point of contention between the SDOTs and Amtrak surfaced in this research and get this issue off the table once and for all.
Sponsor legal research on Amtrak/railroad status relative to the States’ eminent domain powers–Sponsor a modest effort of legal research on Amtrak’s Federal status relative to the States’ eminent domain powers and distribute the findings to SDOTs. This could serve to delineate those cases in which Amtrak enjoyed immunity because of its Federal status from those (if any) where it’s Federal status did not apply. This effort could and should be extended to railroads in general, in order to provide SDOTs with a clear understanding of those circumstances where STB approval is or is not required in the attempted taking of railroad property. This would serve to eliminate confusion and uncertainty among the SDOTs. While this effort surfaced some general conclusions on Amtrak’s status relative to a State’s eminent domain powers, developing the final word on this topic was beyond our scope.
Sponsor annual meetings between the SDOTs and Amtrak–Finally, in order to improve the mechanics of the process, it is suggested that FHWA facilitate and sponsor annual meetings between the SDOTs and Amtrak. While some States have initiated regular meetings with Amtrak, this does not seem to be a common practice.
The purpose of such meetings would be to discuss big-picture issues and to work toward establishing a common understanding of important areas, and then to agree on the mechanisms and processes to ensure successful execution of projects.
A high-level checklist of items to be considered at the meeting includes the following:
Share communication protocols and contact information of personnel from both sides.
The latter could be incorporated into a memorandum of understanding between each SDOT and Amtrak as to how they desire to conduct the review process.
