[1] The “environmental risk fee” was developed by Amtrak. Its purpose is to protect Amtrak from environmental liabilities discovered when other entities have projects on Amtrak properties. The risk fee is paid by an entity to Amtrak to cover potential environmental liability that may be uncovered by the project. This is a risk fee/risk cap that establishes an upfront cost in which the State will take the first $X in risk. Amtrak will take on all liability above dollar amount for a one-time fee. Amtrak collects the fee and keeps it in reserve for any project that encounters contamination requiring remediation. Amtrak tries to set risk fees and caps based on prior experience with this type of risk.
[2] The NEC passes through the District of Columbia and the States of Maryland, Delaware, Pennsylvania, New Jersey, New York, Connecticut, Rhode Island, and Massachusetts.
[3] Strategies for Improving the Project Agreement Process Between Highway Agencies and Railroads, Report S2-R16-RR1, Transportation Research Board, Washington, D.C., 2010. http://www.trb.org/Publications/Blurbs/164283.aspx
[4] This is not typical of most States. See AASHTO 2006 Clearinghouse Report, Publication No. FHWA-HEP-06-025, May 15, 2006. EMINENT DOMAIN - 2006 CLEARINGHOUSE REPORT–Realty–FHWA
“Appropriation” is only used by State agencies in New York. Local governments use condemnation which involves going through a court process if no agreement is reached.
[5] Air rights.
[6] Federal regulations require an appraisal as part of the normal ROW acquisition process (49 CFR Part 24 §24.102 (C) (1)) with exceptions to this requirement noted in §24.201(c) (2).
The requirements for real property acquisition appraisal for Federal and federally-assisted programs are set forth in §24.103. Appraisals are to be prepared according to these requirements, which are consistent with the Uniform Standards of Professional Appraisal Practice.
Qualifications of appraisers and review appraisers are specified in §24.103 (d)
All appraisal/appraisal review cost are an eligible expense for federal-aid funding as part of the acquisition cost.
[7] Railroads typically require both General Business Liability Insurance and Railroad Protective Liability Insurance, in amounts from $2 million to $10 million. The need for indemnification is absolute, although the insurance amounts required varies by railroad and occasionally by project type and duration. Contractor indemnification should be considered as a given. In cases where governments have statutory provisions preventing them from indemnifying third parties, the contractors generally are required to accept the indemnification.
Railroads have increased their insurance requirements above the federal minimum levels. The current federal levels include $2 million for general liability and $6 million for Railroad Protective Liability Insurance. Higher limits can be allowed under federal rules with justification.
Strategies for Improving the Project Agreement Process Between Highway Agencies and Railroads, Report S2-R16-RR1, Transportation Research Board, Washington, D.C., 2010. http://www.trb.org/Publications/Blurbs/164283.aspx
[8] Indemnification is the part of an agreement that provides for one party to bear the monetary costs, either directly or by reimbursement, for losses incurred by a second party. To indemnify another party is to compensate that party for loss or damage that has already occurred, or to guarantee through a contractual agreement to repay another party for loss or damage that occurs in the future.
[9] Sovereign immunity is a judicial doctrine that prevents the government or its political subdivisions, departments, and agencies from being sued without its consent. The doctrine stems from the ancient English principle that the monarch can do no wrong.
[10] PRP–Potentially Responsible Party terminology is from CERCLA (Superfund Act).
[11] In 2006, Amtrak developed an Environmental Liability Policy to protect Amtrak from environmental liabilities discovered when other entities have projects on Amtrak properties. Options for an entity seeking access are:
Sources: Amtrak 2006 Annual Environmental Report
Amtrak 2007 Annual Environmental Report
2008 Railroad Environmental Conference November 4-5, 2008, Spoken Presentation Summaries, Illinois Railroad Engineering Program. http://ict.illinois.edu/railroad/RREC/pdf/2008%20RREC/2008%20presentation%20booklet.pdf (p. 19)
[12] Selected Studies in Transportation Law, Volume 3, 2010 Supplement, ENVIRONMENTAL LAW and TRANSPORTATION, National Cooperative Highway Research Program, Transportation Research Board, The National Academies, Washington, DC, 2010, p.5-4.
[13] Commuter Rail: Information and Guidance Could Help Facilitate Commuter and Freight Rail Access Negotiations, GAO report number GAO-04-240, January 30, 2004.
[14] The Surface Transportation Board (STB) was created in the ICC Termination Act of 1995 and is the successor agency to the Interstate Commerce Commission. The STB is an economic regulatory agency that Congress charged with resolving railroad rate and service disputes and reviewing proposed railroad mergers. The STB is decisionally independent, although it is administratively affiliated with the Department of Transportation.
The STB serves as both an adjudicatory and a regulatory body. The agency has jurisdiction over railroad rate and service issues and rail restructuring transactions (mergers, line sales, line construction, and line abandonments); certain trucking company, moving van, and non-contiguous ocean shipping company rate matters; certain intercity passenger bus company structure, financial, and operational matters; and rates and services of certain pipelines not regulated by the Federal Energy Regulatory Commission.
[15] AASHTO 2006 Clearinghouse Report, Publication No. FHWA-HEP-06-025 May 15, 2006. CONDEMNATION OF RAILROAD PROPERTY–2006 CLEARINGHOUSE REPORT–Realty–FHWA
[16] A Summary of Current Legislative Provisions Prescribing the Legal and Regulatory Framework
Governing The National Railroad Passenger Corporation (Amtrak), A Council Policy Paper
Amtrak Reform Council, December 4, 2000, p.7. http://govinfo.library.unt.edu/arc/materials/legsum.pdf
[17] Congressional ResearchService Memorandum
To: House Committee on Transportation and Infrastructure
From: Robert Meltz, Legislative Attorney
Subject: Takings issues raised by discussion draft of Amtrak bill
July 12, 2011
