HBDs a Burning Topic for Commuter Rail (Updated May 10)

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The largely politically motivated and, in my opinion, unnecessary Railway Safety Act legislation introduced by Ohio’s two U.S. Senators, Republican J.D. Vance and Democrat Sherrod Brown of the Commerce, Science and Transportation Committee, now moving to the Senate floor, contains an onerous HBD (hot bearing detector) provision that, if implemented (provided the legislation is signed into law after a complex Capitol Hill process), will burn commuter railroads with an—here’s a new acronym—EUUM (expensive unnecessary unfunded mandate).

The definition of “main line” in the bill includes “intercity rail passenger transportation or commuter rail passenger transportation routes or segments over which high-hazard trains operate.” The bill provides the authority for the U.S. DOT to apply requirements beyond what the statute requires: “Other Railroad Carriers. Nothing … may be construed to restrict the discretion of the Secretary to require railroad carriers other than those specified … to implement a network pursuant to this section.” Even though the bill would direct the Federal Railroad Administration to develop final regulations implementing the requirements, without clear intent, it’s possible that the final regulations would likely pull in commuter agencies, at least in flow-down.

The Railway Safety Act requires trains carrying hazardous materials to be scanned by HBDs at a minimum of every 10 miles to prevent wheel bearing failures and possible derailments. This is disingenuous. A better approach would involve ramping up current freight railroad efforts to have HBD data, including temperature trending, relayed in real time to dispatchers, trouble desks and train crews. This is well under way. HBDs are not regulated; their use is voluntary, and their spacing is determined by many operating-territory-specific factors. There is clearly direction for DOT to develop “cost effective” requirements even with the statutory mandate, but it’s unclear if this would apply to the explicit requirements for detector spacing. But don’t expect anyone on Capitol Hill to understand railroad technology and operations. That’s a big ask, and I’m not holding my breath.

Commuter railroads, ably represented on Capitol Hill by the Commuter Rail Coalition, believe the final legislation should “state clearly that the cost of installation and ongoing maintenance for any wayside monitoring devices, such as hotbox detectors, be borne by freight carriers, including for such devices required to be installed on property owned by commuter rail agencies.”

“Currently, most commuter rail agencies have freight operating over large segments of public agency-owned trackage, including trains carrying hazardous materials,” CRC co-founder John Cline tells me. “Commuter rail agencies do not currently envision utilizing such detection devices, as they rarely experience wheel bearing failures in service due to the more rigorous inspection standards required for all passenger railroads. However, if commuter rail agencies wish to access such devices installed by freight carriers, freight carriers should be required to provide such access, so long as commuter rail agencies pay the potential additional costs of equipping their own trains for communications. There might not need to be on-board communications if data is relayed to dispatchers, who in turn notify train crews.“

CRC has a good point. Compared to a freight railroad, with railcars operating over hundreds or thousands of miles in interchange service, and individual cars rarely, if ever, inspected by the same person twice, commuter rail equipment is captive, inspected every day (per CFR 49 Part 238 requirements) by the same people, who are very familiar with it and monitor changes in condition. Requiring commuter railroads to install and maintain for the benefit of freight railroads, at considerable cost, HBDs on track they own or maintain doesn’t make a whole lot of sense.

Some on Capitol Hill may see forcing commuter railroads to pay for HBD installation and maintenance as a “belts and suspenders” approach for passenger safety. But with more rigorous daily inspection protocols, bearing failures are not a top-five safety hazard for commuter railroads, and dictating such installation delays railroads’ implementation of higher priority—and impactful—safety-related measures. The potentially bigger threat to commuter rail operations and the communities they serve is freight rail transport of hazardous materials. But, given the safety record—99.9% of hazmat shipments occur without incident, according to the AAR—how big a threat can it be?

“The freight railroads must bear the cost of keeping communities safe as their cost of doing business,” Cline points out. “While some have mentioned that the costs to host commuter railroads of installing new required technology could be offset by a new federal funding program, we take issue on three points. First, taxpayers should not shoulder the cost of ensuring that freight operations are safe. Freight railroads can easily pass the cost of doing business onto their customers. Second, commuter railroads already have a long list of projects—safety, capital and operational—that they have prioritized to benefit their passengers. Spending new federal dollars on a private sector fix is anathema to serving the public good. Third, federal funding, if provided, often covers the initial capital cost, but not ongoing operating costs. Commuter railroads are in no position to add another operating cost burden at a time when many in the industry face looming fiscal cliffs.”

While HBD requirements are the commuter railroads’ biggest concern, there are other problems that need fixing in the Railway Safety Act. It’s not guaranteed that this legislation will be passed by full Senate, reconciled with a similar House bill, and be sent to the Oval Office for “Amtrak Joe’s” signature. Those are a lot of steps, and anything can happen. But regardless of the outcome, there’s far too much risk that it’s going to create an untenable financial burden for agencies facing a looming fiscal crisis when COVID relief funding runs out. Scarce resources will become scarcer.

The Senate Railway Safety Act creates new safety requirements and procedures for all trains carrying hazardous materials. The bill requires rail carriers provide advance notification and information to each State emergency response commission. CRC wants to add commuter rail agencies to the list of entities receiving advance notification. Currently, commuter rail agencies receive no notification of hazardous materials being transported on their property or their service territory. Having advance notification, CRC believes, would allow commuter rail agencies to be able to make appropriate responses to any occurrence on their property, or property over which they operate owned by freight railroads, that may impact passengers or employees.

The legislation places a two-person-crew mandate only on Class I’s, though that could change before it reaches the Senate floor for a vote requiring 60 votes to pass. Commuter rail agencies operate with two or more crew members per train, due to the great difference in operations. “We need the final language on this requirement to be absolutely clear that it applies only to Class I’s,” Cline stresses. “The CRC believes specific language is necessary to avoid any confusion or misinterpretation of the mandate.”

Commuter rail agencies insure their operations and activities under their own liability insurance policies. “We believe it should be made clear in this legislation that freight railroads carry the full weight of liability for all injuries and damages to property that occur from their operations on commuter rail-owned property,” Cline says. “Commuter rail agencies assume similar liability while operating over freight rail-owned property. However, such assumption of liability is less clear for freight rail accidents and derailments involving hazardous materials, and it should be specifically addressed in this legislation.”

CRC gets into much more detail on HDBs. The problem is far more complicated than it appears, and it’s not just about funding. Here’s what CRC has to say:

“Mandating HBDs for all territory where freights operate will place a significant financial burden on commuter rail agencies, with little or no recognizable safety benefit. For Class I, II and III carriers that operate over territory owned and controlled by commuter rail agencies, access to these lines is governed by trackage use agreements that in most cases place the burden of maintaining the railroad to FRA standards on the host railroad—in this case the commuter agencies. Most if not all agreements do not have provisions that allow for cost allocation to one or another party if in the event requirements are modified. Thus, shifting the burden of the cost for installation and ongoing maintenance of these devices will require these agreements be renegotiated, which is at best cumbersome if not impossible when you add up all the existing agreements.

“Constant HBD communications are already an in-cab distraction to existing commuter rail operations where freight is traveling over local track. And when you calculate the amount of traffic on certain lines where not only commuter trains operate but also many freight trains and Amtrak, the near-constant din of radio communications in some circumstances will interfere with other necessary communications under normal operating conditions, let alone where there may be problems such as mechanical failures or operational delays. Technology may be available that would allow the updates to display through onboard PTC systems, which would eliminate the radio traffic, but again there is a likely significant cost associated with that modification.

“This may also require that a ‘vital’ communications capability be established between wayside equipment and on-board systems. This could require modifications to railroad PTC Development Plans and Safety Plans and could vary depending on the number of suppliers and technology solutions. This process alone could take significant effort and time.

“If Congress elects to mandate HBDs or any other track infrastructure improvements, a direct funding program for commuter rail agencies will be necessary. While we do not cherish the thought of arguing for the creation of a new federal funding program covering capital and operating costs for this purpose, it is the only solution we see to protect commuter rail agencies from the financial impact of new mandates. Again, we would much rather argue for a new commuter rail-focused federal program to help make needed infrastructure and rolling stock improvements, but we don’t see a viable path to force modifications to existing agreements with freight carriers.

“Modifications to current operating practices on commuter rail territory would be disruptive. Any changes to the operating practices of freight carriers moving hazardous materials on commuter rail territory (i.e., slower speeds, time of day restrictions, consist limitations) would likely wreak havoc across the commuter rail system. There are currently numerous lines in places like New York, New Jersey, Chicago and Los Angeles where hazardous materials are transported under current operating restrictions, and any changes that would further reduce speeds or require more trains to carry smaller loads would cause congestion problems on these lines where traffic is already high.”

To me, these are strong arguments that justify putting the Rail Safety Act and any other pending similar legislation (like the nonsensically named House “Reducing Accidents in Locomotives” Act) where it belongs: in a rusty old filing cabinet deep within Capitol Hill’s twisted bowels, where the sun doesn’t shine and bad ideas go to die. If that’s not possible, the least this industry can do is band together to try to make the onerous parts easier to swallow for everyone, passenger and freight.

APTA Weighs In

The American Public Transportation Association (APTA) on May 10 told Railway Age it “does not believe that commuter rail agencies should bear the cost of acquiring, installing and maintaining hot box detector devices.”

On March 28-29, the association conducted a Flash Survey of 30 commuter rail agencies to better understand the impacts of and gauge their opinions on the proposed requirement to install hot box detectors as part of the Railway Safety Act (S. 576; download survey below).

Of the 23 commuter rail agencies that responded (see chart below), 61% stated that Class I railroads are hosted on their rights-of-way (approximately 3,000-4,000 track-miles), including 90% of the 10 largest commuter rail agencies. For purposes of this survey, APTA said the largest commuter rail agencies are those with the greatest track mileage weighted by percentage of capital responsibility (based on data from the Federal Transit Administration’s 2021 National Transit Database).

According to the Flash Survey report, respondents said they are “concerned about the cost to acquire, install and maintain hot box detector technology,“ and “about possible operational impacts on their systems.“

Of the respondents, 65% (including 80% of the 10 largest commuter rail agencies) “expressed concern about a requirement to install hot box detector technology on every 10-mile segment of track over which trains carry hazardous materials.“ Respondents’ cost estimates for installation varied. Some commuter rail agencies estimated the cost to acquire and install hot box technology to be less than $500,000 per device, while others estimated the installation cost to be greater than $1.5 million per device, according to the survey report. The agencies also noted that other factors could increase the cost of device installation. “For example, a statutory requirement would presumably increase demand for the devices and therefore drive up costs,“ APTA wrote in the report. “In addition, section 5(c) of the bill requires wayside defect detectors to address specific parts (e.g., axles, wheel bearings, brakes, signals). If the Federal Railroad Administration (FRA) final regulation requires that hot box detectors integrate and automatically activate with other systems such as positive train control systems or signaling systems, the cost of the equipment and installation would increase.“

Agencies estimated annual maintenance costs of 5%-10% of installation costs, according to the survey report. Some agencies also pointed out that the hot box detector requirement could have other unforeseen costs related to commuter rail operations. “For example, if a functioning hot box detector device is required for system operation and it fails, it could immediately impact commuter rail operations while awaiting repair,“ APTA wrote in the report.

Additionally, 39% of the respondents (including 60% of the 10 largest commuter rail agencies) have agreements with freight railroads that provide terms for which party is responsible for freight-only improvement costs. “For instance, under an existing agreement, a commuter rail host agency may be responsible for all safety improvements on its track even for a tenant railroad’s freight-only improvement,“ APTA wrote in the report.