Fix It, Sign It or Close It: State of Good Repair in an Era of Budget Constraints (2021)

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TCRP LRD 57 / NCHRP LRD 84 21 decision to reverse the agency decision. WisDOT had decided to remove several driveways, including the Slaters’ driveway, after consideration of an access management plan and a safety assessment of the area. The access management plan recom- mended eliminating numerous driveways because the presence of the driveways conflicted with established engineering guide- lines and created a risk of high crash rates. The appellate court reviewed the evidence and reversed the circuit court’s ruling, concluding that the decision to revoke the Slaters’ driveway per- mit was based upon documented safety concerns and evidence that the Slaters would have reasonable alternative access to the highway without their driveway. e. Temporary vs. Permanent Service Reductions According to FTA C. 4702.1B,152 transit operators that op- erate 50 or more fixed route vehicles in peak services and are located in an urbanized area with a population of 200,000 or more must perform a service equity analysis whenever they make a major service change. The analysis must evaluate the impacts of the proposed service changes on Title VI protected populations and low-income populations. Temporary service changes (those which do not exceed one year) do not rise to the level of a major service change.153 The emergency service cuts that occurred during the pandemic of 2020 fit into this category. Comments on the FTA website indicate that even though the service equity analysis is not required for temporary changes, FTA expects temporary services or fare changes to be imple- mented equitably.154 If temporary changes become permanent, the service equity analysis must be conducted. FTA recom- mended, even for temporary changes, that transit agencies doc- ument the rationale for specific reductions and the steps taken to ensure equitable reductions in service in case of a challenge to the process. V. ADMINISTRATIVE SAFETY ENFORCEMENT EFFORTS This section highlights safety investigations performed by FTA and the National Transportation Safety Board (NTSB). The goal of the agency oversight process is to make transportation safer through policy development, hazard investigation, data collection, risk analysis, oversight programs, and information sharing.155 FTA is authorized to temporarily and quickly as- sume the role of a State Safety Oversight Agency (SSOA) when 152 FTA C. 4702.1B, Title VI Requirements and Guidelines for Fed- eral Transit Administration Recipients, October 1, 2012. 153 Id. at Chap. IV-13. 154 See, FTA, Frequently Asked Questions from FTA Grantees Regard- ing Coronavirus Disease 2019 (COVID-19), https://www.transit.dot. gov/frequently-asked-questions-fta-grantees-regarding-coronavirus- disease-2019-covid-19 (last updated: Tuesday, March 23, 2021). 155 FTA, Transit Safety Oversight, https://www.transit.dot.gov/regu- lations-and-guidance/safety/transit-safety-oversight-tso, (last visited March 18, 2021). tion would fundamentally alter the provider’s services (such as a request for a fixed route bus to deviate from its normal route); 2) granting the request for a modification would create a direct threat to the health or safety of others (such as a request that would require a driver to park a vehicle in a no parking zone); or 3) the requested modification is not necessary to allow the passenger to use the entity’s services, programs, or activities for their intended purpose (for instance, the modification might make transportation more convenient for one passenger, but that passenger could nevertheless use the service successfully to get where he or she is going without the modification). An example of the application of these concepts can be found in Frogge v. Fox.148 Plaintiff alleged that the Mountain Line Transit Authority (MLTA) failed to provide her with a reasonable accommodation when she requested a new bus stop in her neighborhood. After evaluation and a site inspection, MLTA determined that the roads in the apartment complex were too small and did not have an acceptable place for a full- sized bus to turn around, and that the route required a full-sized bus due to the number of passengers who used it. MLTA also determined that the requested changes would have significantly impacted other passengers on the route, and for that reason denied the request. The court granted MLTA’s request for sum- mary judgment. d. Access Management Access management can be accomplished in many ways. Ac- cess management is “the coordinated planning, regulation, and design of access between roadways and land development … transportation professionals are tasked with optimizing facili- ties and the configuration of facilities in a way that will address the needs of the community without adversely compromising access to the system.”149 Commonly used methods are con- solidation or elimination of driveways, installation of median barriers, the prohibition of left turns and the inclusion of con- trolled access designations in roadway plans. Access manage- ment can also be accomplished with a plan which allows new access points only through a permitting process. These deci- sions are a source of administrative and judicial challenges since access management practices may be perceived as unequal or discriminatory. The cases summarized in this subsection illus- trate examples of litigation against public agencies when access to a roadway was restricted or permanently changed. In Slater v. State,150 suit was filed after the Wisconsin Depart- ment of Transportation (WisDOT) notified the Slaters that their driveway permit was being revoked and their driveway was going to be removed.151 WisDOT appealed the circuit court’s 148 No. 1:17cv155, 2019 U.S. Dist. LEXIS 96,606, (N. D.W. Va. June 10, 2019). 149 The Transportation Research Board, Access Manage- ment Manual, 2nd Edition, Transportation Research Board of the National Academies of Sciences, Engineering, and Medicine, Washington, D.C., (2015). 150 884 N.W.2d 535 (Wis. Ct. App. 2016). 151 Wis. Stat. § 86.073(1) (2021) allows a request for review of a denial of a driveway permit.

22 TCRP LRD 57 / NCHRP LRD 84 in response to an accident involving a short circuit on the rail system, which caused smoke to fill a stranded train, killing one passenger and injuring 91 people. 1. Factual Background On January 12, 2015, a train on the Metrorail system stopped after encountering heavy smoke in a tunnel between stations. The train filled with smoke and the conductor attempted to return to the station, but power to the train was lost before the return trip could be completed and the train was stranded. A following train was also affected by the heavy smoke. Passengers in both trains, as well as passengers on the station platforms, were exposed to heavy smoke. Some passengers evacuated the trains on their own, while others were assisted by first responders and firefighters. After the incident, FTA and NTSB evaluated WMATA’s operations and maintenance programs, safety management capabilities, and organizational structure. One of the key findings of the investigation was that the agency had “organizational deficiencies” and “operational methodolo- gies” that limited its ability to recognize and resolve safety is- sues.160 The probable cause of the incident was determined to be a prolonged short circuit in the wiring, which resulted from ineffective inspection and maintenance practices.161 2. National Transportation Safety Board Investigation The final report of the NTSB indicated that it had investi- gated 12 WMATA accidents previously and had issued 101 safety recommendations to WMATA since 1979. The NTSB outlined the following safety issues and conditions: •   Initial response to report of smoke. A smoke detector acti- vated but the activation was not displayed at the operations center due to a loose wire. Once the other detectors were activated, the standard operating procedure of stopping all trains did not occur. •   The tunnel where the fire occurred was not appropriately ventilated. Emergency smoke removal procedures had pre- viously been identified as a need for the agency. •   Train operators did not know how to shut down the railcar ventilation systems and smoke was pulled into the railcars through the fresh air ventilators. •   Emergency communications were not prompt and first responders were directed to the wrong tunnel. Passengers who evacuated the train had a difficult time traversing the safety walkway as lighting was dim and obstacles blocked the walkway. •   The Tri-State Oversight Committee, which was responsible for safety oversight, lacked sufficient resources, technical 160 FTA, SMS, Gap Analysis Report, Washington Metropolitan Area Transit Authority, June 17, 2015, https://www.transit.dot.gov/sites/fta. dot.gov/files/docs/WMATA_SMS_Gap_Analysis_Final_Report.pdf. 161 NTSB, Washington Metropolitan Area Transit Authority L’Enfant Plaza Station Electrical Arcing and Smoke Accident, Washington, D.C., January 12, 2015, https://www.ntsb.gov/investigations/ AccidentReports/ Reports/RAR1601.pdf. the state agency is not functioning properly.156 It can withhold financial assistance or direct the use of federal funding for safety purposes.157 The NTSB has the authority to investigate all highway accidents and incidents, including incidents at railway grade crossings “in cooperation with a State.”158 A. WMATA Incident Review The following section provides a review of federal regulatory agency responses to an incident that occurred at the WMATA facilities in 2015. WMATA was created by an interstate compact in 1967 to plan, develop, build, finance, and operate a regional transportation system in the Washington D.C. metro area.159 The agency provides rail, bus, and paratransit services. In 2015, FTA conducted a safety management inspection of WMATA 156 MAP-21 enhanced FTA’s safety authority, including allowing it to assume SSO responsibilities in the absence of an effective SSOA. Pur- suant to 49 C.F.R. § 1.91(a), the Secretary of Transportation’s (the Secre- tary) authority to carry out 49 U.S.C. § 5329 is delegated to the Federal Transit Administrator. 157 According to the State Safety Oversight Program Certification Process, 49 U.S. Code § 5329(e)(7): (C). (Disapproval) If the Secretary determines that a State safety over- sight program does not meet the requirements of this subsection and denies certification, the Secretary shall transmit to the eligible State a written explanation and allow the eligible State to modify and resubmit the State safety oversight program for approval. (D). Failure to correct. —If the Secretary determines that a modification by an eligible State of the State safety oversight program is not sufficient to certify the pro- gram, the Secretary— (i)shall notify the Governor of the eligible State of such denial of certification and failure to adequately modify the program, and shall request that the Gov- ernor take all possible actions to correct deficiencies in the program to ensure the certification of the pro- gram; and (ii)may— (I)withhold funds available under paragraph (6) in an amount determined by the Secretary; (II)withhold not more than 5 percent of the amount required to be appropriated for use in a State or urbanized area in the State under section 5307 of this title, until the State safety oversight program has been certified; or (III)require fixed guideway public transporta- tion systems under such State safety oversight program to provide up to 100 percent of Federal assistance made available under this chapter only for safety-related improvements on such systems, until the State safety oversight program has been certified. 158 General Authority, 49 U.S.C. § 1131(a)(1)(B). Safety recommen- dations are issued by the NTSB following the investigation of transpor- tation accidents and the completion of safety studies. 159 Washington Metropolitan Area Transit Authority Compact of 1966 (Compact), Va. Code Ann. § 33.2-3100 (2020). The states of Maryland and Virginia, and the District of Columbia are part of the Compact.

TCRP LRD 57 / NCHRP LRD 84 23 Analysis. The Tri-State Oversight Committee was until re- cently responsible for managing the federally required oversight program for the system with the authority to conduct inspections, training, testing, and repair functions on the system. The new safe- ty oversight committee, Washington Metrorail Safety Commis- sion (WMSC) was established in 2017 and was certified to assume direct oversight responsibility for Metrorail in March 2019.167 WMSC has the ability to close facilities for repair and new construction, perform investigations, direct the safety activi- ties of the agency, and generally provide oversight and direc- tion to WMATA. Multiple investigations were launched after the leader ship change. Those investigations related to claims of a work environment allowed harassment of employees who reported safety issues, and lack of employee training on safety protocols. Other investigations included continued structural integrity and load assessment of bridges, track maintenance and training, and worker protection and training. Acceptance and implementation of investigation and audit results can prove to a judge or jury that the agency has a rea- soned plan to allocate its resources wisely and address impor- tant safety and budget problems. Lawsuits involving alleged dangerous conditions and harassment can be defended in the manner described in this digest, using data and documentation to support and explain the choices and actions of the agency. B. New Jersey Transit Hoboken Terminal Accident New Jersey Transit Corporation (NJT) is a state-owned public transportation system that serves New Jersey, portions of New York, and Pennsylvania. It operates bus, light rail, and commuter rail services. NJT is the largest statewide public tran- sit system and the third-largest provider of bus, rail, and light rail transit by ridership in the United States.168 1. Factual Background On September 29, 2016, a train that was approaching the Hoboken terminal failed to stop, overrode a bumping post at the end of the track, and struck a wall of the terminal. NTSB investi- gated the incident. According to the NTSB report, the train was traveling about 21 mph at the time of the accident and carry- ing approximately 250 passengers and three crewmembers. One person on the passenger platform was struck by falling debris and died, and 110 passengers and crewmembers were injured. The total cost of damage to the train, track, and facility was esti- mated to be $6 million. Of the multiple lawsuits filed as a result of the accident, one reported settlement was in the amount of $1.5 million.169 167 Washington Metrorail Safety Commission, Who We Are, www. wmsc.gov/about-us/who-we-are, (last visited March 18, 2021). 168 William C. Vantuono, Jersey Transit Strong, Railway Age, (Nov. 4, 2015), www.railwayage.com/passenger/commuterregional/jersey- transit-strong. 169 Associated Press, Woman injured in N. J. Transit Hoboken crash settles for $1.5 million, NorthJersey.com, (Nov. 13, 2019, 7:27 p.m. ET), https://www.northjersey.com/story/news/ transportation/2019/11/13/ woman-injured-nj-transit-hoboken-crash-settles-1-5- million/ 4186361002. capacity, and enforcement authority to ensure safety at the facility. •   NTSB was also critical of FTA’s lack of safety oversight and WMATA’s failure to comply with the rigorous MAP-21 safety assessment requirements.162 3. Litigation Lawsuits were filed by or on behalf of more than eighty peo- ple who were on the train. WMATA, in court filings, defended against the suit by asserting governmental and discretionary im- munity and claiming that the fire department, which responded to the incident, was responsible for the injuries rather than WMATA’s actions and inactions. The basis of their defense was the following language from the agency Compact: The Authority shall be liable for its contracts and for its torts and those of its Directors, officers, employees and agent committed in the conduct of any proprietary function, in accordance with the law of the applicable Signatory (including rules on conflict of laws) but shall not be liable for any torts occurring in the performance of a govern- mental function. The exclusive remedy for such breach of contracts and torts for which the Authority shall be liable, as herein provided, shall be by suit against the Authority. Nothing contained in this Title shall be construed as a waiver by the District of Columbia, Maryland, Virginia and the counties and cities within the Zone of any immunity from suit.163 Settlements of the claims were reached but details of the set- tlements were not made public.164 After the accident, WMATA was placed on a CAP and tem- porary and direct safety oversight of the Metrorail system was taken over by FTA. The FTA WMATA Safety Oversight Team’s role was to verify WMATA’s progress on implementing the CAP and other remedial actions, and to ensure that WMATA was ef- fectively carrying out its own critical maintenance, operations, and training programs.165 The CAP identified safety issues such as ineffective training, inadequate staffing and procedures, and system-wide maintenance issues. The WMATA website con- tains the following statement about the CAP: In collaboration with the Federal Transit Administration, Metro has developed an action plan to address the safety findings and recom- mendations issued by the FTA following its organization-wide Safety Management Inspection (SMI) of the WMATA rail and bus transit systems. Ninety-one different actions have been identified to address 44 safety findings in eight categories regarding WMATA’s Metrorail system and 10 safety findings in five categories regarding WMATA’s Metrobus system.166 162 Id. 163 Compact para. 80 (Liability for Contracts and Torts). 164 See e.g., Max Smith, Many L’Enfant smoke lawsuits dismissed; vic- tim’s family presses on, WTOP news, (Oct. 15, 2017), https://wtop.com/ tracking-metro-24-7/2017/10/many-lenfant-smoke-lawsuits-settled- family-woman-died-presses. 165 FTA, FTA Safety Oversight of the Washington Metropolitan Area Transit Authority (WMATA) Metrorail System, https://www.transit.dot. gov/regulations-and-guidance/safety/fta-safety-oversight-washington- metropolitan-area-transit-authority (last updated April 26, 2019). 166 WMATA, FTA Corrective Action Plan, www.wmata.com/rider- guide/safety/fta-cap.cfm#main-content, (last visited March 18, 2021).