Operational Issues for Rail Projects

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					Operational Issues for Rail Projects

APTA Legal Affairs Seminar 2008




Janie Sheng
K&L Gates LLP
janie.sheng@klgates.com
(202) 778-9855
Shared Use
 What type of share?

   Shared Corridor

   Shared Track




                        2
(cont’d)
 Shared Corridor:

   no major freight vs. passenger capacity issues

   lower insurance cost

   don’t have to use FRA-compliant equipment




                                                     3
(cont’d)
 Shared Track

   Must use FRA-compliant equipment
      i.e. vehicles that meet FRA safety and crashworthiness
       requirements for use on the general railroad system. See 49
       CFR 238.


   Otherwise, secure a waiver from FRA requirements
    for use of non-compliant vehicles.



                                                                     4
(cont’d)


   FRA essentially requires temporal separation as part
    of the operation plan in Shared Track situations.




                                                           5
Rail Line Capacity


 Besides price, the most important issue for freight
  railroads is capacity on the line.

 Capacity constraints are worse in dense urban
  freight corridors.




                                                        6
(cont’d)
 Tension between how many passenger trains public
  agency wants to run vs. how many trains freight
  railroads need to run.

 Commission a capacity analysis.

 Freight railroads will want to preserve the right to
  run additional freight.


                                                         7
(cont’d)
 Public agencies need to make sure freight railroads
  don’t have the right for future expansion and use up
  passenger rail capacity.




                                                         8
Operations and Maintenance
 Will you be purchasing the railroad right-of-way?

    If NOT, then

         Freight railroads may want to drive your passenger trains.
         On-time performance issues.
         Freight railroads may want to perform maintenance of way.
         Public agency can still perform maintenance on passenger
          equipment.



                                                                       9
(cont’d)
 If purchasing railroad right-of-way and track

    More likely that public agency will be able to drive
     own trains and maintain own property.




                                                            10
Liability and Insurance
 “But for” liability protection.
    Freight railroads want public agencies to indemnify
     them against any and all claims
    Arising from grant of access, or
    Provision of passenger rail service
    Regardless of negligence
    That would not have arisen but for the existence of
     the passenger rail service.



                                                           11
(cont’d)


 Public agencies should expect “but for” liability even
  if purchasing right-of-way.




                                                           12
(cont’d)
 How do public agencies manage the risk?

   Insurance

   Usually self-insurance + policies

   Huge cost item for public agencies




                                            13
(cont’d)
 Amtrak Reform and Accountability Act

    Federal statute limits rail passenger liability to $200 million per
     occurrence.

    Clearly applies to Amtrak

    Appears to apply to commuter rail

    Unclear whether it applies to third party claims



                                                                           14
(cont’d)
 The industry has talked about establishing a
  Captive Insurance Pool with other passenger rail
  providers for lower premiums.




                                                     15
The End.




           16

				
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