Power to the Permit! (or Closely Hold This!)

Note: This series of articles explores what power citizens hold over corporate activity in their backyard, beginning slowly with an analysis of Bellingham’s desire to have a Quiet Zone.

Part I.

Under a new federal rule in effect since 2010, train horns must be calibrated to produce "a minimum sound level of 96 dB(A) and a maximum sound level of 110 dB(A) at 100 feet forward of the locomotive in its direction of travel." (Emphasis added.)

49 CFR sec. 229.129 is known as the Train Horn Rule, and it seems fairly certain that the trains routinely waking up Bellingham between 4 and 5 a.m. have not been recalibrated to do anything other than drive us out of our minds.

If it is true that BNSF is exceeding maximum decibel levels set by the federal government, one reason might be to make us believe we have no control over what they do. The notion that we’re helpless and hopeless in the face of the Fossil Fuel Tsunami bearing down on us, including the area crude-by-rail proposals, keeps us from focusing on that over which we do have control: conditions on the permits without which these proposals can’t be built in the first place.

In the context of train horns, there are no permits directly involved. In fact, the main purpose of the Train Horn Rule was to allow communities to work with railroads to institute Quiet Zones or, in railroad parlance, QZs. This typically requires upgrades at crossings to a safety level high enough to make sounding the horn unnecessary. The railroads – which face potential liability for accidents and injuries at crossings, particularly if they have not sounded their horn – do not love this and understandably have a lot to say about what an adequate level of safety is.

Congress and the U.S. Department of Transportation agreed with the railroads that QZ’s “are … of no ascertainable net benefit to the railroads and there shall be no required railroad share of the costs.” 23 U.S.C. 130(b), and 23 CFR 646.210(b)(1). That was good for the railroads, because barriers, flashing lights, etc., aren’t cheap. According to Union Pacific Railroad, costs range as follows:

• Four-Quadrant Gate Systems - $300,000 to $500,000
• Basic Active Warning System* - $185,000 to $400,000 (*Includes Flashing Lights and Gates, Constant Warning Time, Power Out Indicator and Cabin.)
• Basic Inter-Connect - $5,000 to $15,000
• Annual Maintenance - $4,000 to $10,000

Bellingham commissioned a report in 2007 which concluded that the total cost to upgrade all Bellingham crossings to qualify the city as a QZ at that time could exceed $5.5 million. The city, in its Train Horn FAQs states the city will seek grants to offset the cost, but according to the Association of Washington Cities, the state and federal governments are disinclined to assist communities which require grade changes such as overpasses. In the competition for scarce dollars, it is not difficult to imagine Seattle winning $5+ million for an overpass to eliminate impacts on their tourism economy over Bellingham’s bid for quiet.

There is a good reason for Bellingham not to embark on instituting a QZ at this time. Federal law may limit the railroads’ contribution to mitigate the costs of their impact, but that is not the same as assigning responsibility as a condition of a permit for, oh, say, a major shipping proposal that would add 18 trains a day to local tracks.

Once we’ve committed to a QZ, ostensibly because existing rail traffic is bad enough, we weaken any argument we have that the GPT EIS (Gateway Pacific Terminal Environmental Impact Statement) should assign some share of the cost, proportional to their relative contribution to rail traffic, as a mitigation. That opens a Pandora’s box, to be sure, because the rail impacts are shared by communities all the way back to the Powder River Basin, and up the line by Ferndale and Custer. Oh well.

Bellingham has already approved funding, on September 16, 2013, of $377,000 for the first QZ-level safety upgrade, at Boulevard Park. They could probably have spent less and improved safety, but they went for the whole enchilada or first rate safety BNSF required to forego the laying on of the horn (unless, in the conductor's discretion, he feels the need).

John Stark reported the day after the council vote approving the appropriation that “[Public Works Director Ted] Carlson told the council that the installation of the signal at the trail crossing is one small step toward eventual creation of a railroad quiet zone through the city that would make all rail crossings safe enough to allow locomotive operators to rely less on the loud horns that disrupt sleep for many city residents.”

The biggest issue in 2013 with choosing Boulevard Park to embark on a Bellingham-wide QZ was that as rail lines reach capacity, which is occurring rapidly as crude-by-rail proposals come on line, sidings must be built to relieve congestion if Amtrak is to have a chance of getting from Portland to Vancouver, B.C. in a single day. One of the top priority sidings, according to Communitywise Bellingham, would start north of Bellingham and extend south through Boulevard Park. That is, at some point our QZ upgrades will be ripped out for construction of a siding (along with the Park’s parking lot). To date, the city has not publicly acknowledged whether BNSF would re-install a QZ-level safety system after construction of a siding at their own expense.

To be sure, having a better guarded crossing at Boulevard Park is a priority. Maia Haykin’s death on May 20, 2008, while bicycling on the South Bay Trail resonated for councilmembers who argued forcefully in September 2013 for safety upgrades.  That was, however, not the point. The point was that enhanced safety could have been achieved at other levels less than that required for a Quiet Zone, and the council had not received information about the array of alternatives and associated costs. Carlson told me he was directed to only seek designs from BNSF for a QZ-level upgrade. The council had choices of designs, but all the designs came with the equivalent price tag.

This is a nuanced distinction – some safety versus QZ-level safety – but one which relates to a far more grave issue, which is failure of planners to think outside the box and assign responsibility for a fair share of the costs associated with corporations’ impacts. While local officials often have no regulatory authority to control corporate activity, at the point at which permits are being considered, they hold a lot of power. The city has no permit power over corporate activity related to the trains disturbing the city’s sleep and safety, but it can and should be commenting to the county when it could even theoretically consider a mitigation as a condition over a permit it has the power to grant or deny.

Assigning a share of the cost of a Quiet Zone to GPT’s proponents may seem relatively trivial, but there are other contexts – such as the shipment of crude by rail (CBR) through our communities – which are not, and there are significant mitigations that could and should be assigned to those who would reap the profits but externalize their costs as long as we allow them to get away with it. It is time for a paradigm shift, and the next article in this series will explore some of the ways the paradigm must shift in the context of regional refinery CBR proposals.