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

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24 TCRP LRD 57 / NCHRP LRD 84 similar conclusions and recommendations to improve safety had been in those reports. Delayed, and inadequate maintenance can lead to inci- dents, accidents, lawsuits, and new and restrictive legislation. The agency that does not conduct safety and process audits, or change its practices after deficiencies have been noted, docu- ment its reasons for budget expenditures, or comply with gener- ally accepted industry practices has difficulty defending tort and other claims against it. VI. CURRENT PRACTICES This section provides a summary of practices and methodol- ogies of state and local transportation agencies. These responses are highlighted as they give practical and current examples of the concepts that are discussed in this digest. A. Summary of Resources Data for this section was drawn from survey responses, inter views with state and local transportation agency officials, review of responses to FOIA requests, and internet research. The interview questions used by the panel during the research period can be found at Appendices A and B of this digest. 1. Litigation Issues examined included: Potential or actual litigation re- garding closure of facilities or limitations on service; potential or actual litigation relating to civil rights complaints; and re- sponses to civil rights complaints about the closure of a facility, or restriction of a route or fleet size. a. Civil Rights Complaints Several transit agencies acknowledged that they had received complaints relating to discrimination. One agency indicated that when its Equal Employment Opportunity department investigated the complaint, and the complaint was substan- tiated, the agency would address and mitigate the issues. The agency explained that its goal is always safety for customers, em ployees, and the community. Another agency explained that any discrimination complaints would be referred to a compli- ance and civil rights officer. Legal counsel would be consulted, if necessary. 2. Standards of Care Each of the responding agencies indicated that they were re- quired to comply with the standards of care that were identified in this digest. 3. Public Involvement and Outreach Efforts The following topics were examined: public involvement relating to temporary or permanent closure of facilities; public involvement during the closure of a facility or access decision- making process; and languages used in communications to en- sure inclusion of diverse cultures. Additionally, several Letters of Finding issued by FHWA in response to civil rights complaints were reviewed. After review of the Title VI complaints, FHWA 2. National Transportation Safety Board Investigation The NTSB determined that the probable cause of the acci- dent was the failure of the engineer to stop the train after enter- ing the terminal due to fatigue, which resulted from undiag- nosed sleep apnea. The report concluded that other causes were NJT’s failure to follow its sleep apnea screening guidance as well as the FRA’s failure to require railroads to screen employees in safety-sensitive positions for sleep disorders. The NTSB further found that a safety system, if in use, could have intervened to stop the train before the collision.170 3. Litigation Not only was NJT sued as a result of the 2016 incident, it has been sued for multiple other safety related incidents. Lawsuits have been filed against NJT by former and current employees who alleged that due to scheduling constraints, trains are not thoroughly inspected for brakes, lights, and other safety equip- ment deficiencies. One suit alleged that a mechanical inspec- tion that takes 40 minutes to conduct must occur before a train is taken out of the station, but train engineers’ schedules did not allow enough time between trains to conduct the required inspections.171 Another suit was based on a former employee’s allegations that he reported safety violations to federal authori- ties and was terminated for that reason. In the suit, plaintiff claimed that other employees would not report safety violations due to their fears of recourse from the agency.172 In June 2019, the New Jersey Transit Corporation Employee Protection Act173 was established. The law provides employees with the ability to obtain recourse against the agency for injuries suffered on the job, unemployment, whistleblowing, discrimi- nation, and prohibits NJT from raising a defense of sovereign immunity in those instances. Analysis. NJT had been investigated by FRA and NTSB prior to the 2016 accident. Testimony by NJT officials after the Hoboken incident and investigations of the agency led the leg- islature to conclude that financial limitations had caused the agency to focus on day-to-day operations rather than making safety improvements and obtaining compliance with safety reg- ulations and requirements. Earlier investigations had reached 170 NTSB, Railroad Accident Brief: New Jersey Train Strikes Wall, https://ntsb.gov/investigations/AccidentReports/Pages/RAB1801.aspx, (last visited March 18, 2021). 171 Colleen Wilson, Engineer says in lawsuit she was fired after raising N.J. Transit train safety concerns, NorthJersy.com (Aug. 14, 2019, updated 8:44 pm), https://www.northjersey.com/story/news/ transportation/2019/08/14/whistleblower-lawsuit-engineer-fired- raising-nj-transit-train-safety-concerns/2007437001. 172 Brenda Flanagan, Legal precedent shields N.J. Transit from federal safety lawsuits, NJ Spotlight News, (Feb. 14, 2019), https://www. njtvonline.org/news/video/legal-precedent-shields-nj-transit-from- federal-safety-lawsuits/. 173 New Jersey Transit Corporation Employee Protection Act, S3164, Pub. L. 2019, ch. 137, approved June 26, 2019 (prohibits NJT from asserting sovereign immunity in certain situations and subjects NJT to certain federal statutes and regulations).

TCRP LRD 57 / NCHRP LRD 84 25 4. Limitations on Access The following issues were examined: Whether the agency closed a road or limited access to it for safety reasons perma- nently or temporarily; and a description of the decision-making process for that restriction. One midwestern agency described a situation where a city that the agency partnered with decided to eliminate routes near the town square, causing a complaint to be filed with the federal regulatory agency. The dispute was resolved after the city made the decision to allow the resumption of the routes that had been eliminated, and consultation with FTA, which confirmed that the agency would have to return funds that had already been expended. 5. Prioritization of Repairs The processes that are described in this section are typical of the practices of a transit agency. Processes such as these are required under the federal regulations. The following topics were examined: the criteria used to prioritize the repairs or re- placement of infrastructure or assets; and a description of the decision-making process. One transit agency stated that its Asset Management Team analyzes classes of the agency’s assets to determine specific as- sets in need of repair or replacement based on the age of the asset and its estimated useful life, and/or a condition assessment of the asset. The team provides the analysis to its capital program managers and the budget and analysis teams. These groups de- velop a five-year capital improvement program by allocating available funding against its state of good repair needs and ex- pansion. The budget goes through a public review process, and public outreach events are held in the community to reach a great number of diverse communities. The community activi- ties are held before the budget is presented to the agency’s board of directors. The agency stated that Title VI and environmental justice matters are always considered during this process. Another agency indicated that one of its state of good re- pair priorities was to update its facilities to meet ADA require- ments, and that it performed quarterly and annual inspections with its safety committees in order to meet its safety program recommendations. The following charts and explanations are typical of agency analysis in prioritizing repairs. The Regional Transit Authority of Northeastern Illinois (RTA) adopted a five-level condition rating based on FTA’s con- dition assessment philosophy174. 174 See RTA/FTA Transit Asset Management (TAM) Pilot Program, Vol. 1 – Asset Inventory and Condition Assessment Guide, Ch. 4, “How to Guide to” Conduct a Condition Assessment (2013), https://www.tran- sit.dot.gov/sites/fta.dot.gov/files/docs/RTA_Final_Rpt._COMBINED_ TAM_Pilot_Grant_v1.pdf. found that the public outreach efforts in the following examples were adequate and not discriminatory. a. Santa Clara Valley CA Valley Transportation Authority Notice to the public on their web page is provided in Amharic, Arabic, Croatian, English, Farsi, French, German, Gujarati, Hindi, Cambodian, Japanese, Korean, Portuguese, Punjabi, Serbian, Spanish, Russian, Chinese (simplified and tradi tional) Vietnamese, and Somali. b. TxDOT project TxDOT prepared a plan to replace a bridge on U.S. 181 near Corpus Christi after it identified critical structural and design deficiencies in the bridge. According to the design documents, replacement of the bridge was the only way to continue to safely use U.S. 181. Bridge inspections had revealed broken rivets and bolts, corrosion, sagging bracing, and rusting. In its report, TxDOT stated that the bridge did not meet current bridge or roadway standards and that it posed a safety risk to the traveling public. A complaint was made by minority groups that public participation procedures were not followed during the envi- ronmental impact analysis of the project. FHWA determined that public outreach efforts had not been discriminatory and identified the following actions that had been taken by TxDOT: workshops (called livability summits) that provided opportuni- ties for residents to apply for three different types of sustainabil- ity grants; community meetings, which involved a 29-member panel of community members; dozens of public involvement meetings, which included open houses, formal public meet- ings and hearings, and stakeholders’ meetings. Meetings had originally been planned to be held on Wednesdays, but when TxDOT was informed that many residents attended church on Wednesday they changed the day of the week to accommodate more public participation. Meetings were advertised in English and Spanish, and interpreters were available at those meetings. c. North Carolina Department of Transportation (NCDOT) project NCDOT proposed a project to alleviate congestion and im- prove capacity on NC 147 and US 70. The department’s acci- dent analysis determined that the local roadways had extremely high crash rates and that the probability of more frequent crashes would continue to increase due to an increase in traffic. NCDOT examined multiple alternative routes in its environ- mental assessment. Public outreach attempts included distribut- ing information through workshops, newsletters, neighborhood meetings, a toll-free phone number, e-mail, a telephone hotline, and a project website. The agency also created a mailing list of 5000 recipients that included state, local, federal, and private en- tities. FHWA determined that there was insufficient evidence to determine that NCDOT’s public involvement activities resulted in adverse or disparate impacts to the neighborhood.

26 TCRP LRD 57 / NCHRP LRD 84 5 State of Good Repair An asset is in the state of good repair when the physical condition of that asset is at or above a condition rating of 5. The level of investment required to attain and maintain a state of good repair is therefore that amount required to rehabilitate and replace all assets with an estimated condition of 5 or less. Asset performs its assigned function without any limitations. Asset has past repair maintenance history and may have current repair items noted that do not limit the asset function. Asset has completed approximately 75%-90% of its minimum useful life. 4 Marginal Asset reaching or just past the end of its useful life; increasing number of defective or deteriorated components and increasing maintenance needs. Maintenance and reliability costs begin to become more expensive. Continued maintenance program required to bring up to the level of state of good repair. Asset has completed approximately 90%-105% of its minimum useful life. 3 Concern Asset performs its assigned function with limitations. Asset cannot function without limitations unless maintenance is performed. 2 Poor Asset is past its useful life and is need of immediate repair or replacement; May have critically damaged components. 1 Critical Imminent failure or safety risk. Asset out of service. 6. Funding Concerns The following issues were examined: in the event that a facility is planned to be closed, and federal funding was ex- pended for it, whether the federal funding agency is involved in the decision-making process; and whether the agency returned funds to its funding agency. Survey responses indicated that when agencies were con- cerned that they might have to return money to a funding agency, the funding agencies were consulted and involved in the decision-making process. Frequently, consultation confirmed that funds would have to be returned if the projects were not completed or were changed substantially. One agency noted that that the agency risked return of funds for violation of grant agreements or for early retirement of equipment, but that it had obtained authorization to allow an amount owed to FTA to be debited from future grants. Condition RTA Definition Excellent 4.8 to 5.0 New asset No visible defects Good 4.0 to 4.7 Asset showing minimal signs of wear Some (slightly) defective or deteriorated components Adequate 3.0 to 3.9 Asset has reached its mid-life condition (3.5) Some moderately defective or deteriorated components Marginal 2.0 to 2.9 Asset reaching or just past the end of its useful life (typically between condition 2.75 and 2.5) Increasing number of defective or deteriorated components and increasing maintenance needs Worn 1.0 to 1.9 Asset is past its useful life and should be prioritized for repair or replacement. The Utah Transit Authority (UTA) uses a condition rating breakdown that rates equipment and vehicles on a scale of one to ten.175 10 Excellent New asset, no visible defects. Only preventative maintenance has been performed. Asset has completed less than approximately 15% of its useful life. 9 Very Good Only minor adjustment repair work completed. Asset as completed approximately 15%-30% of its minimum useful life. 8 Good Asset showing minimal signs of wear; some (slightly) defective or deteriorated components(s). Asset has completed approximately 30-45% of its minimum useful life. 7 Satisfactory Asset has past repair maintenance history, but no current noted items. Asset has completed approximately 45% - 60 % of its original useful life. 6 Adequate Asset has some moderately defective or deteriorated components. Asset has completed approximately 60% - 75% of its minimum useful life. 175 See e.g. UTA/Bentley Final Report, Transit Asset Management, (April 2012), p.12 (Condition Rating Module), https://www.transit. dot.gov/sites/fta.dot.gov/files/docs/UTA_TAM_Final_Report_ April_2013_%282%29.pdf.