|Federal Railroad Administration and BNSF
Conspire to Thwart Quiet Zones
May 21, 2006
In 1994, Congress passed legislation requiring regulations that permitted the establishment of Quiet Zones at railroad grade crossings. It took over 10 years for the regulations to finally go into effect, and Richmond acted quickly to establish Quiet Zones in areas where residents are subjected to seemingly incessant horn honking, particularly at night. The first Quiet Zone was established near Parchester Village earlier this year, and other Quiet Zones are in process in south Richmond near point Richmond and Marina Bay.
That’s the good news. The bad news is that Burlington Northern Santa Fe (BNSF) has simply refused to recognize the legally established Quiet Zone in north Richmond and is fighting tooth and nail the Quiet Zones in south Richmond. To add insult to injury, the Federal Railroad Administration (FRA), which is the only agency with enforcement power, appears to have abdicated its responsibility by refusing to move expeditiously to do its job of implementing and enforcing Quiet Zones.
After months of trying to work with the FRA and BNSF cooperatively, I have become to believe that this is simply not going to work, as the two entities appear to have collaborated to totally sabotage the intent of Congress.
I believe the only way to get any relief on this matter is to go back to Congress to request an investigation into the matter and to find a way to force the FRA to comply with its own regulations.
Attached to this email is a PDF copy my letter to Senators Boxer and Feinstein and Congressman Miller. There is also a copy on my letter as an MSWRD file, and I urge you to cut and paste it into your own letter to send to these three legislators.
Although not as effective as a letter, you can also press “reply to all” and send a copy of this email along with any of your own comments you wish to add to the offices of Senators Boxer and Feinstein and Congressman Miller.
The text of my letter is also copied below:
May 9, 2006
Senator Barbara Boxer
Senator Diane Feinstein
The Honorable George Miller
Re: Railroad Quiet Zones in Richmond, California
In light of discouraging encounters with the Federal Railroad Administration (FRA), and in light of the written intention of Burlington Northern & Santa Fe Railroad (BNSF) to ignore Federal law, we respectfully solicit your able assistance with the FRA in order to ensure that the quiet zone statutes, heretofore promulgated in 1994, are fully supported by the FRA, that they are consistently and promptly enforced, and that violations are promptly punished to the full extent allowed by law. We require your support on several issues that will be described in detail, below.
In the years leading up to 1972, the United States had become concerned with the widespread harm being generated in our ever increasingly industrialized and noisy society and accordingly, Congress enacted the Federal Noise Control Act. 42 USC §§4901 et. seq. Correspondingly, California declared noise to be a special nuisance and enacted The California Noise Control Act, Business & Professions Code §§46000 et. Seq.
Railroad train horns were considered a special problem and in November of 1994, Congress enacted Public Law 103-440 and it was codified as 49 USC §20153 et. seq., more commonly known as the Train Horn Rule. This statute directed the Secretary of Transportation and the FRA to issue regulations that would require the sounding of locomotive horns at all public highway-rail grade crossings and to provide exceptions under specific conditions and circumstances; this statute permitted the creation of so called quiet zones in which train horns would not be sounded except in case of emergency. These regulations were to be completed and issued within 48 months. However, it was not until December, 2003, that the Interim Final Rule was published, and after several more delays, in April, 2004, the Final Rule was published in the Federal Register as 49 CFR §§222 et seq. After the mandatory 365-day waiting period, the Final Rule went into effect in June 2005. (Train Horn History and Timeline, Appendix 1) (The “Train Horn” Rule Quick Facts, Appendix 2)
Beginning as early as 2001, several citizens in Richmond, California, began lobbying the City Council to do something about the noise of train horns which were present throughout the city and which were thought to be a significant public health hazard. The Department of Transportation (DOT) issued a document in 2002 that summarized the many adverse effects of transportation noise; thus validating many of our concerns and confirming that the adverse health effects of noise were known in the DOT. (General Health Effects of Transportation Noise, Appendix 3)
On April 13, 2004, the Richmond City Council passed a resolution, which, in part, directed the City Attorney to create a quiet zone in Richmond in the areas of Point Richmond, Atchison Village, Marina Bay, Santa Fe, the Iron Triangle, Parchester Village, Country Club Estates, Richmore Village, and other neighborhoods adversely affected by train horns, under the provisions of the new Final Train Horn Rule (49 CFR §§222 et seq.) (Resolution of the City Council 62-04, Appendix 4).
At around this time, a number of concerned citizens formed a private action group called Households Opposed To Railroad Noise (H.O.R.N.). Since then, a few members from H.O.R.N. have worked closely with Wayne Nishioka (Assistant City Attorney) and Rich Davidson (City Engineer) as a Committee to establish several quiet zones in three different parts of the city. For a number of reasons, the Committee decided to establish quiet zones in North Richmond first, and thereafter to establish additional quiet zones in the west and southern parts of the city.
North Quiet Zone
Following some unavoidable delays, since everyone was unsure of the new procedures, a quiet zone, encompassing two grade crossings, was established in North Richmond according to the provisions of 49 CFR §§222 et seq. Thereafter, BNSF sent a letter to the FRA indicating it did not intend to abide by the quiet zone (BNSF Letter, Appendix 5). The FRA’s response indicated that compliance was not voluntary and that noncompliance could result in financial civil penalties. (FRA Letter, Appendix 6)
Before the quiet zone was implemented, several of the citizens who lived in the Northern area of Richmond began keeping detailed records of the dates, times, and the number of times the horns were sounded in the various locations that were to become part of the quiet zone. This established a baseline pattern of horn use. Since the quiet zone was lawfully established, more than two months ago, citizens have continued to keep detailed records that have been forwarded to the City Attorney’s Office. There is essentially no change in the pattern of horn blowing when one compares the records pre and post-establishment of quiet zone. This information has been sent to the FRA, which, thus far, has not taken any steps to enforce its own rules. (FRA Letter, Appendix 7)
Several conversations between members of the FRA and the Assistant City Attorney have suggested that a number of cumbersome, bureaucratic, and tortuous steps must be followed before the FRA would be willing to enforce its own rules. The FRA has accepted that citizens were monitoring the quiet zone for violations; however, in our view, monitoring should be the responsibility of the FRA. It is curious that, on the one hand the FRA has accepted the fact that citizens monitor the railroad for compliance, while on the other the FRA has now indicated that such monitoring would be insufficient proof of a violation. It seems that the FRA staff is either contradicting itself or is confused; whatever the case, the result is frustrating to citizens. Thus, the will of the people and the will of the Congress are again being held hostage by inactivity of a Federal agency. One must ask why, with all the documentation that has been presented, are the mandatory financial penalties not being assessed against BNSF? Why cannot the FRA send its own observers to the site? The FRA could confirm the validity of the reported violations within a few days.
We were subsequently further apprised that the FRA assembles all violations for the entire Western region and meets with the railroads about twice a year to negotiate various fines with the railroads. In the initial phases of enforcement of this new rule, such meetings do not seem to be the most meaningful or effective way to assess fines for quiet zone violations. At the very least, such informal summary disposition of complaints has sent an unmistakable message to the railroads that they can pretty much do as they please. Without the statutory penalties as prescribed by Congress, the railroads have little or no incentive to obey the law and observe the quiet zones.
Despite their importance in the history of our country, despite their wealth, despite their powerful lobbies, and despite their very deep pockets, the railroads are not above the law. The fact that they would go on record as having decided, arbitrarily, to ignore a clearly defined Federal law relating to quiet zones makes one wonder what other Federal laws might they have decided to disobey or ignore? It does not give us confidence in their honesty or credibility.
South Quiet Zones
Once the Train Horn Rule went into effect, we began the process of establishing quiet zones in other parts of Richmond. Part of the process involves the use of a so-called Quiet Zone Calculator that resides on the FRA web site. It calls for train counts, vehicle counts, and other numerical data that had to be collected from several sources. It also calls for the DOT Crossing Number, a unique identifier for each grade crossing in the United States. Some of these numbers either were not in the system or were incorrect. Without them, one cannot do the calculations required to determine whether or not the crossing can be qualified as a quiet zone. It is curious that the FRA has not updated the Crossing Numbers in the 12 years that it has worked on the Train Horn Rule. The FRA certainly knew these numbers would be required to create a quiet zone. We have been repeatedly assured that this information was being added to the system as quickly as possible, however, more than 5 months have passed and we are told that the update is still ostensibly being processed. In the meantime, the train horns continue to blow their peace-shattering horns, disrupting sleep, raising blood pressure, and producing all the other unwanted adverse effects on the health of Richmond’s Citizens that are expressly prohibited by both State and Federal statutes.
Therefore, H.O.R.N. and the citizens of Richmond, California, call upon the Senators, Representatives, and other administrators to investigate these irregularities, delays, bureaucratic obfuscations, and other dilatory tactics, and what appears to be willful disobedience of a Federal law, to encourage by all appropriate means an appropriate, expeditious, equitable, vigorous, and meaningful action from the FRA.
The citizens of Richmond, California, expect the FRA to exert its authority and expertise, together with the resolve of the Congress to ensure compliance with the Train Horn Rules. Obviously, there is a clear and well-documented pattern of violations by BNSF. As concerned, law abiding, and taxpaying Americans, we would like to see the railroads sanctioned, in accordance with the penalties outlined in the Final Rule. The citizens of Richmond have waited 12 years after the statute (49 USC §20153 et. Seq) was enacted--any further delay is both unconscionable and a mockery of American justice.