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Train Speed E ~ CITY OF DUBUQUE, IOWA MEMORANDUM July 13, 2000 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Train Speed Ordinance The City of Dubuque has received a denial from the Iowa Department of Transportation to the request to restrict trains going through town to a 25 MPH speed limit. This request was made after the City learned that I & M Rail Link plans to increase their train speeds to 40 MPH. The City has until Friday, July 21 to appeal. Staff has not been able to determine any grounds for that appeal. Barring direction from the City Council to the contrary, no appeal will be filed. Michael C. Van Milligen MCVM/dd Attachment cc: Barry Lindahl, Corporation Counsel Tim Moerman, Assistant City Manager Mike Koch, Public Works Director ~ .....-.~ CITY OF DUBUQUE, IOWA MEMORANDUM July 10, 2000 TO: Michael C. Van Milligen, City Manager FROM: Michael A. Koch, Public Works Director J!I/~ SUBJECT: Train Speed Ordinance INTRODUCTION This is to advise you that on June 21, 2000, the City was notified that the Iowa Department of Transportation denied the City's request to lower the maximum allowable train speed through the City of Dubuque. DISCUSSION Recently, the City has been receiving complaints in regard to the higher train speeds of the I & M Rail Link running through the northerly residential neighborhood of the City. These complaints have related to the safety of the at-grade railroad crossing at Hawthorne Street, and the high number of pedestrians crossing at this location. On September 7, 1999, the City was informed by I & M Rail Link that they were going to be increasing their train speeds up to 40 miles per hour through the City of Dubuque. The old City ordinance regulating train speeds allowed a maximum of 30 miles per hour for passenger trains, and 25 miles per hour for freight trains. In subsequent discussions with the lOOT and the Railroad, the City learned that its ordinance was null and void unless it was approved by the Iowa Department of Transportation, pursuant to Section 27F.31 of the Code of Iowa. Therefore, on May 9, 2000, the City made a formal application to the Iowa Department of Transportation to approve the City's old ordinance, which was originally passed in 1976. A copy of the City's request is attached. The City, in its petition, cited concerns for safety of the several at-grade rail crossings through the City, and the potential for higher predicted accident rates. In addition, letters from property owners in the vicinity of the Hawthorne crossing were attached to the City's request. Upon receipt of the City's request, both the City and the railroad company were given thirty (30) days to submit position papers to the Department regarding their relative positions on the City's petition. Subsequently, the City was served by a "DECISION AND ORDER" dated June 21, 2000, which notified the City that the Department was denying the City's petition for lower train speeds. It was the Department's Finding that the City provided only general concerns for safety in its petition and cited a low accident rate at all of the crossings through the City. The railroad argued that, as a matter of law, their train speeds are regulated by the Federal Railroad Safety Act and that the Iowa Department of Transportation has no authority to approve the petition of the City. The City had until July 11, 2000, to contest the Department's Finding, which was requested by the City to be extended until July 21, 2000. IDOT has decided previous cases by determining whether a particular local safety hazard existed and whether the ordinance would eliminate or reduce the hazard. IDOT's Finding indicated that the City did not establish the existence of any local safety hazards and noted there have been no accidents at the Hawthorne Street crossing, which was the crossing of greatest concern of the City. ACTION TO BE TAKEN City staff is requesting direction from the City Council as to whether to make a formal appeal of the Department's Finding. Copies of the City's, railroad's, and the Department of Transportation's correspondence relating to the City's petition are enclosed for your review. If additional background information could be identified and submitted to the Department, it may be possible for the Department's Finding to be reversed. The City Council is requested to give direction to City staff on whether to appeal the Finding of the Iowa Department of Transportation. MAK/vjd ~"8~:f!~ R;f2J!.~~rt Of Transpor:t~~Rtl ~~ Fax: 515-239-1975 July 11,2000 Michael A. Koch Public Works Director City of Dubuque 50 West 13th Street Dubuque, Iowa 52001-4864 Dear Mr. Koch: RE: Docket No. RR-RO-OO-l, Request for Approval of Train Speed Ordinance, City of Dubuque, Iowa. On July 10,2000, the Department of Transportation received your request for an extension of the 20-day period for submitting a written statement contesting the department's order disapproving City Ordinance No. 39-1 relating to the regulation of train speeds in the city of Dubuque. Your request has been considered and is granted. The extended deadline for submitting written statements contesting the Department's decision and order is now July 21,2000. Sincerely, Thomas F. Jackson Iowa Department of Transportation Modal Division cc: Charles Webster Michael Thrall James Helenhouse CERTIFICA TE OF SERVICE The undersigned hereby certifies that on the } f , 2000, the attached document was served upon all parties of record to Docket No. RR-RO-OO-las listed below by depositing a copy thereof in the U.S. Mail, postage prepaid. COM~~j Charles Webster Canadian NationallIllinois Central 455 North Cityfront Plaza Drive Chicago, II 60611-5504 Michael Thrall Nyemaster, Goode, Voights, West Hansell & O'Brien 700 Walnut, Suite 1600 Des Moines, IA 50309-3899 Michael Koch Public Works Director City of Dubuque 50 West 13th Street Dubuque, IA 52001-4864 James Helenhouse Fletcher & Sippel LLC Two Prudential Plaza, Suite 3215 180 North Stetson Avenue Chicago, IL 60601-6721 Sent by: CITY OF DUBUQUE 319 589 4149; 07/10/00 3:22PM;JeNax #128;page 2/2 .-"--- --. F.n~il1eeriJ\l;; Divi~iol1 5{] West 13th Strt!l!C ))llbUtIU<1. low" 52001-4864 n 1 ':I) 5tl9.4270 (319) 589-4Wl FAX DUB~E ~</k.~ July 10, 2000 Mr. Thomas F. Jackson Iowa Department of Transportation Modal Division 800 Lincoln Way Ames, IA 50010 RE; Train Speed Ordinance. Docket No. RR-RO~00-1 Dear Mr. Jackson: The City acknowledges the receipt of the Iowa Department of Transportation's Decision and Order on the City of Dubuque's May 9, 2000 request to lower the maximum allowable train speeds through the City of Dubuque. The decision on the City's request to approve the City's 1976 ordinance limiting the speed of freight trains to 25 miles per hour was served upon the City on June 21, 2000. According to the Order, included Decision, the CitY is allowed twenty (20) days from the service date of the Order to file a written statement contesting the Department's Order. This Would allow the City to contest the finding until July 11, 2000. Since the initial request to lower the maximum allowable train speeds came from the City Council, I am requesting an extension of the appeal period to allow time for the City Council to consider whether to appeal the Decision. The City Council will meet next on July 17,2000; and therefore, I would request the deadline for filing an appeal be .extended until July 21, 2000. This would allow the City Council sufficient time to review the Decision and Order and to give direction to City staff on whether an appeal should be filed. If you should have any questions in regard to the City's request for this extension, please fee! free to contact me at the above telephone number or via facsimile (319-589-4149). Sincerely, J;;;4 KaL Michael A. Koch Public Works Director MAK/vjd Sent Via Facsimile cc: Michael C. Van Milligen, City Manager Service P<,"ple Integrity Rcspunsibilily hllk'v.1tkm T"ilmWOl'k - -- '-- - ... Engineering Division 50 West 13th Street Dubuque, Iowa 52001486-1 (319) 5894270 (319) 58941-t9 FAX DUB~E ~7~~ July 10, 2000 Mr. Thomas F. Jackson Iowa Department of Transportation Modal Division 800 Lincoln Way Ames, IA 50010 t~l?'1 RE: Train Speed Ordinance - Docket No. RR-RO-00-1 Dear Mr. Jackson: The City acknowledges the receipt of the Iowa Department of Transportation's Decision and Order on the City of Dubuque's May 9, 2000 request to lower the maximum allowable train speeds through the City of Dubuque. The decision on the City's request to approve the City's 1976 ordinance limiting the speed of freight trains to 25 miles per hour was served upon the City on June 21, 2000. According to the Order, included Decision, the City is allowed twenty (20) days from the service date of the Order to file a written statement contesting the Department's Order. This would allow the City to contest the finding until July 11, 2000. Since the initial request to lower the maximum allowable train speeds came from the City Council, I am requesting an extension of the appeal period to allow time for the City Council to consider whether to appeal the Decision. The City Council will meet next on July 17,2000; and therefore, I would request the deadline for filing an appeal be extended until July 21, 2000. This would allow the City Council sufficient time to review the Decision and Order and to give direction to City staff on whether an appeal should be filed. . . If you should have any questions in regard to the City's request for this extension, please feel free to contact me at the above telephone number or via facsimile (319-589-4149). Sincerely, t;;;4/(wL Michael A. Koch Public Works Director MAK/vjd Sent Via Facsimile cc: Michael C. Van Milligen, City Manager ~rvice People Integrity Responsibility Innovation Teamwork CITY OF DUBUQUE, IOWA MEMORANDUM tory July 9, 2000 TO: Michael C. Van Milligen, City Manager FROM: Michael A. Koch, Public Works Director (i\1 V ~ n "\ L>\~ Train Speed Ordinance SUBJECT: This is to advise you that on June 21, 2000, the City was notified that the Iowa Department of Transportation denied the City's request to lower the maximum speed allowance for freight trains through the City. It was lOOT's finding that the City did not provide any documentation for the lower speed other than "general concerns for safety". The considerations taken into account by lOOT include: a. Traffic density and speed. b. Accident frequency. c. Causes of accidents. d. Obstructions for visibility. e. Traffic controls at crossings. f. Population density. g. Resulting burden on the rail transportation system. h. Resulting benefit to residents of the political subdivision. lOOT has decided previous cases by determining whether a particular local safety hazard existed and whether the ordinance would eliminate or reduce the hazard. lOOT's ruling indicated that the City did not establish the existence of a local safety hazard and indeed there have been no accidents at the Hawthorne Street crossing, which was the area of greatest concern of the City for safety. " The City has until July 11 to contest lOOT's finding; however, without additional -- factual information to back up the City's request, I see no chance that lOOT would alter its ruling. Please let me know if you have any questions relating to this matter. cc: Barry Lindahl - \.1 '---:...~fL') -c...r<:f. l.iJ , 1\ 'i" (C,,_;J b \'LrLj.:) e.sJ.W.tr.v) STATE OF IOWA IOWA DEPARTMENT OF TRANSPORTATION MODAL DIVISION . .. 'f:. S::RVEO.6 -;;2( ~(J() ) IN THE MATTER OF: ) ORDINANCE REGULATING THE SPEED ) OF TRAINS WITH IN THE CITY OF ) DUBUQUE, IOWA ) ) CITY OF DUBUQUE, IOWA ) Petitioner ) ) v. ) ) I & M RAIL LINK, LLC et al ) Respondents ) ) DOCKET NO. RR-RO-OO-l DECISION AND ORDER STATEMENT OF THE CASE On September 13, 1999, the City of Dubuque (City) pursuant to Iowa Code Section 327F.31, filed with the Iowa Department of Transportation (Department), a request for the approval of Section 39-1 of the City's Code of Ordinance relating to the speed of trains. The ordinance was passed in 1976 and was submitted to the Department under the provision in 327F.31 requiring that: "Any speed ordinance or resolution adopted by a political subdivision of the state prior to July 1. 1988, which has not been approved by the department shall be referred to the department by the political subdivision and shall be in full force and effect upon approval of the ordinance or resolution by the department." The Department notified I & M Rail Link, LLC (I & M), Chicago, Central and Pacific Railroad Company (CCP), and Burlington Northern Santa Fe Railroad Company (BNSF), the affected railroads (Railroads), and the City that all parties would have 30 days in which to submit position papers to the Department before the Department issues an order approving or disapproving the ordinance. ISSUE The issue is whether the Department should approve the City's train speed ordinance. SUMMARY OF THE EVIDENCE The City seeks Department approval of Section 39-1 of the Code of Ordinance of the City of Dubuque, Iowa, relating to the speed of trains which reads as follows: "Sec. 39-1 Speed restrictions _p_ No passenger train shall be operated over and upon the grade crossings in the city at a speed of greater than thirty (30) miles per hour, nor any freight train at a speed greater than twenty-five (25) miles per hour." The City submitted a brief position paper stating general concerns about grade-crossing safety, noise, and the "greater potential of a derailment, possibly involving hazardous chemicals". The City's position paper did not include any evidence in support of its position or establishing a local safety problem that would be addressed by the train speed ordinance. The position papers submitted by the affected railroads are parallel in their arguments and \\'ill be considered together. Railroads present a range of arguments challenging the ordinance on the following grounds: 1. that the ordinance is without effect because the authority of the City and the Department are preempted by the federal authority to regulate the operations of trains; 2. that the ordinance violated the Commerce Clause of the United States Constitution; 3. that the ordinance and the local conditions which it addresses do not provide sufficient evidt:nce for the Department to approve the ordinance under state law and administrative rules. IMRL, in its position paper and in the accompanying Affidavit of Scott F. Woodard, Chief Engineer of IMRL, establishes that a portion of its trackage within the City of Dubuque is classified as Class III track by the Federal Railroad Administration (FRA) under Part 213 of Title 49 of the Code of Federal Regulations, that the FRA limits the speed on Class III track to 40 miles per hour, and that IMRL operates on a portion of the Class III track in Dubuque at speeds up to 40 miles per hour. FINDINGS OF FACT In consideration of the information submitted in this proceeding I hereby find that: 1. The City passed an ordinance in 1976 limiting the speed of freight trains within the City of Dubuque to 25 miles per hour. 2. The City has requested that the Department approve the ordinance under Iowa Code 327F.31. 3. Portions of the IMRL track in Dubuque is classified by the FRA as Class III track. Train speed on Class III track is limited by the FRA to 40 miles per hour. 4. The City has not established a local safety hazard that would be remedied in whole or in part by the establishment of a more restrictive speed limit. DISCUSSION The Department is charged under Iowa Code Section 327F.31 with the responsibility to review and approve or disapprove ordinances or resolutions of political subdivisions relating to train speed. The Department has adopted rules at Iowa Administrative Code 761-800.15 setting forth procedures for that review. The rules list factors that the Department may consider in making a decision. The list includes, but is not limited to: "a. Traffic density and speed. b. Accident frequency. c. Causes of accidents. d. Obstructions to visibility. e. Traffic controls at crossings. f. Population density. g. Resulting burden on the rail transportation system. h. Resulting benefit to residents of the political subdivision." The Department has decided previous cases in the context of this authority by determining whether a particular local safety hazard exists; whether the ordinance will eliminate or reduce the hazard; and whether the ordinance will create an undue burden on interstate commerce. The City, in its position paper does not establish the existence of a local safety hazard. They cite a range of accident rates at grade crossings and assert by implication that the present low rates would be "compromised by allowing faster trains." The City also cites concerns expressed by citizens that there would be a "greater potential of a derailment, possibly involving hazardous chemicals." None of these concerns were supported by direct evidence or argument. Railroads, in their position papers, argue that the Department does not have the authority to approve the ordinance because the federal authority over the operation of trains preempts the authority put forth by both the City and the Department. The Federal Railway Safety Act (FRSA), specifically at 49 U.S.C. g 20106, provides a savings clause providing that: "A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety when the law, regulation, or order-- (1) is necessary to eliminate or reduce an essentially local safety hazar~; (2) is not incompatible with a law, regulation, or order of the United States Government; and (3) does not unreasonably burden interstate commerce." The Department holds that its action in approving a train speed ordinance constitutes an "order related to railroad safety" and is permitted under the federal statute although it is subject to stringent conditions. The Department will hold the present ordinance to close scrutiny under these conditions. In any case, the Department is not competent to conclude that a state statute specifically directing its activities is preempted by federal law: Such a determination is more appropriate by the Iowa General Assembly or the courts. Railroads go on to argue that City's train speed ordinance violates the Commerce Clause of the United States Constitution and is, therefor, without effect. This argument is related to the third savings clause in FRSA allowing a state order that "does not unreasonably burden interstate commerce." It seems clear that restricting speed to limits lower than allowed under federal regulation would provide a burden to interstate commerce and that that burden would be unreasonable if the ordinance does not both address a local safety problem and provide sufficient relief to outweigh the burden. The City has neither identified a local safety problem nor shown what relief would be provided by the ordinance. The final area of argument by Railroads is that the City's train speed ordinance should not be approved by the Department because the City has not established a case under lAC 761-800.15. IMRL presented responses to all of the factors listed in the rule, arguing that no local safety hazard exists. CONCLUSIONS OF LAW Based on the foregoing Findings of Fact and Discussion, I conclude, as a matter of law that the ordinance is not "necessary to eliminate or reduce an essentially local safety hazard" (49 U.S.C. 920106 (1). The Department, therefor, has no basis for approving the ordinance under Iowa Code 327F.31 and lAC 761-800.15. ORDER 1. Section 39-1 of the City's Code of Ordinance relating to the speed of trains is disapproved. 2. This decision shall be final unless a written statement contesting the Departmant's Order is filed with the Department within twenty (20) days from the service date of this Order. Dated this 21st day of June, 2000. IOWA DEPARTMENT OF TRANSPORTATION MODAL DIVISION THOMAS F. JACKSON CERTIFICATE OF SERVICE The undersigned certifies that on the ~ daY~ !,JYU-- ,2000, the attached document was served upon all parties to RR-RO-OO- as listed below by depositing a copy thereof in the U.S. Mail, postage prepaid. G~MA'~~' d Michael Koch Public Works Director City of Dubuque 50 West 13th Street Dubuque,IA 52001-4864 Charles Webster Canadian NationallIllinois Central 455 North Cityfront Plaza Drive Chicago,IL 60611-5504 Michael Thrall Nyemaster, Goode, Voights, West, Hansell & O'Brien 700 Walnut, Suite 1600 Des Moines, IA 50309-3899 James Helenhouse Fletcher & Sippel LLC Two Prudential Plaza, Suite 3215 180 North Stetson Avenue Chicago,IL 60601-6721 ~ 810~~: ~~~~~~~t of TranS~~~~!~n ~ Fax: 515-239-1915 June 19,2000 City of Dubuque c/o Michael A. Koch Engineering Division 50 West 13th Street Dubuque, Iowa 52001-4864 I & M Rail Link, LLC c/o James D. Helenhouse Two Prudential Plaza, Suite 3125 180 North Stetson Avenue Chicago, Illinois 60601-6721 . Chicago, Central & Pacific Railroad c/o Charles W. Webster 455 North Cityfront Plaza Drive Chicago, Illinois, 60611-5504 Burlington Northern Santa Fe Railroad c/o Michael W. Thrall 700 Walnut Street, Suite 1600 Des Moines, Iowa 50309-3899 Gentlemen: RE: Docket No. RR-RO-OO-l, Request for Approval of Train Speed Ordinance, City of Dubuque, Iowa. Enclosed please find copies of all position papers that have been filed with the Iowa Department of Transportation in the above-referenced matter. The Department is currently reviewing the information and will issue an order upon completion of its review. All parties will receive notice of the Department's order by certified mail. Respectfully, 9-~ / .-<i~ James L. Gibson Rail Regulation and Operations Rail Transportation Office Attachments (:g'&.. Iowa Department of Transportation ~1800 Lincoln Way, Ames, Iowa 50010 515-239-1549 . "oi'~.'!f,. Fax: 515-239-1975 April13,2000 Corporation Service Company 729 Insurance Exchange Building Des Moines, Iowa 50309 Dear Corporation Service Company: RE: Docket No. RR-RO-OO-l, Request for Approval of Train Speed Ordinance, City of Dubuque, Iowa. As Registered Agent for the I & M Rail Link, LLC in Iowa, you are hereby notified that the City of Dubuque, Iowa, pursuant to Io",:"a Code Section 327F.31, has requested Iowa Department of Transportation approval of City Ordinance No. 39-1 which regulates the speed of trains passing through the city of Dubuque, Iowa. (copy attached) In the process of reaching a decision on this matter the Department is required to notify the affected railroad(s). In accordance with Iowa Administration Code 761-800.15(3) the I & M Rail Link, LLC and the City of Dubuque shall have thirty (30) days in which to submit position papers to the Department. Please be advised that position papers, if any, should be filed with the Rail Transportation Office, Iowa Department of Transportation, on or before thirty (30) days after your receipt of this letter. This letter will serve as official notice in this matter. PLEASE TAKE NOTICE TO THE ABOVE AND GOVERJ.~ YOURSELF ACCORDINGLY. Sincerely, i1__ ~ JJ. / ';f?'hvU--cV t/---. ~ ~~ {/ James 1. Gibson Rail Regulation and Operations Rail Transportation Office t;~ ~ Iowa Department of Transportation 800 Lincoln Way, Ames, Iowa 50010 515-239-1549 Fax: 515-239-1975 April 13, 2000 .tvllchael A. Koch Public Works Director City of Dubuque 50 West 13th Street Dubuque, Iowa 52001-4864 Ken Koff v.P. of Operations I & M Rail Link, LLC 1910 East Kimberly Road Davenport, Iowa 52807 Dear :Mr. Koch and :Mr. Koff: RE: Docket No. RR-RO-00-1, Request for Approval of Train Speed Ordinance, City of Dubuque, Iowa. On March 17,2000, the City of Dubuque, Iowa, pursuant to Iowa Code Section 327F.31 submitted a request for Iowa Department of Transportation approval of City Ordinance No. 39-1 (copy attached) regulating the speed of trains passing through the city of Dubuque, Iowa. In the process of reaching a decision on this matter the Department is required to notify the affected railroad( s). In accordance with Iowa Administrative Code 761-800.15(3) the City of Dubuque and the affected railroads shall have thirty (30) days in which to submit position papers to the Department. Please be advised that position papers, if any, should be filed with the Rail Transportation Office, Iowa Department of Transportation, on or before thirty (30) days after your receipt of this letter. This letter will serve as official notice in this matter. PLEASE TAKE NOTICE TO THE ABOVE AND GOVERN YOURSELF ACCORDINGL Y. Sincerely, O-~~.u d .Jj j~ II ; ames L. Gibson Rail Regulation and Operations Office of Rail Transportation cc: Michael C. Van Milligan, City .Manager Tom Jackson, Iowa Department of Transportation --, THE CITY OF: - '\ -~~- D, -l f n 1 :.c)! r r: . ..- ,,--' '..:.- '".._ 1-- Engineering Division 30 West 13th Street Dubuque, Io,,'a 52001-4864 (319) 589-4270 (319) 389-4H9 FAX ~<k~ May 9, 2000 'J,~ Mr. James L. Gibson Rail Regulation & Operations Office of Rail Transportation Iowa Department of Transportation 800 Lincoln Way Ames, IA 50010 RECEIVED MAY 11 2000 RAIL TRANSPORTATION RE: Docket No. RR-RO-00-1, Request for Approval & Train Speed Ordinances, City of Dubuque, Iowa - Dear Mr. Gibson: On September 13, 1998, the City of Dubuque requested that the Iowa Department of Transportation approve City Ordinance No. 39-1 regulating train speeds through the City, a copy of which is attached. This Ordinance was passed in 1976. The City's Ordinance limited freight trains to 25 miles per hour through the City. The City is concerned about the notification of increased train speeds issued by the I&M Rail Link on September 7, 1996. In its press release, I&M indicated that they intended to begin running trains at speeds up to 40 miles per hour through Dubuque, a possible increase in 15 miles per hour. The City is concerned with the safety of its at-grade crossings with this increase in speeds. According to the September 15, 1999, lOOT report of at-grade rail crossings in Dubuque, the Predicted Accident {PAl Rates for all the crossings through Dubuque range only from a high of 0.0484 to a low of 0.0002. The City of Dubuque does not want to see this safety level compromised by allowing faster trains. ~r...ice People Integrity Re~ponsibility lnnov<ltion Te<lmwork Mr. James L. Gibson Page 2 May 9, 2000 The City Council, City Manager, and City staff have reviewed several calls, particularly from residents along the northerly section of the I&M tracks who are concerned for their safety, given the close proximity of their homes to the tracks. They are also concerrl'ed about additional noise, and the greater potential of a derailment, possibly involving hazardous chemicals. Some of these letters are attached. #! The City of Dubuque feels very strongly that the freight trains should continue to be limited to 25 miles per hour, as has been the case since at least 1976, and that City Ordinance 39-1 be approved .by the Iowa Department of Transportation. Your assistance in keeping these at-grade rail crossings as safe as possible would be appreciated. Should you have any questions, you may reach me at 319-589-4270. Sincerely, . t1:P)~ Michael A. Koch Public Works Director MAK/vjd Via Facsimile Transmission cc: Michael C. Van Milligen, City Manager Barry Lindahl, Corporation Counsel Bill Schlickman, Engineering A ttachs. .. (c~fif \:"t-u..> :?.,i t. q ;r'l"" , ~ e u.J..'-J <' a=t.f1i I"I~ Tl-lE em OF ~ DUB tJ-E2UE Engineering Division 50 West 13th Street Dubuque. Iowa 52001-4S6-t (J19) 589-4270 (319) 589-4H9 FAX 5J.r..r7<k. 5f~ September 13, 1999 ];;>dI Mr. Richard E. Kautz, P.E. Development Engineer Iowa Department of Transportation East Central Iowa Transportation Center 430 Sixteenth A venue SW Po Box 3150 Cedar Rapids, IA 52406-3150 -:" RE: Train Speed Limits Dear Dick: It has come to the City of Dubuque'.s attention that Section 39-1 of the City of Dubuque Code of Ordinances limiting train speeds through the City may require Iowa Department of Transportation approval. The City Ordinance (Section 39-1) prohibits train speeds greater than 30 mph for passenger trains and 25 mph for freight trains. The City has recently been notified by I & M Rail Link, in a letter dated September 7, 1999, a copy of which is attached, may begin running trains through the City of Dubuque at 40 mph as early as September 10, 1999. Section 27F.31 of the Code of Iowa states that local ordinances regulating train speeds are subject to the approval of the Department of Transportation. As of this writing, the City can find no verification that the City's Ordinance was ever submitted or approved by the Department.. The City of Dubuque is hereby submitting a copy of Section 39-1 of the City's Code of Ordinance and requesting that the ordinance be approved under the provisions of the Code of Iowa, Section 27F.31. Please advise if you need further information regarding the City's request at this time. Sincerely, 'l;!dKd Michael A. Koch Public Works Director Attach. cc: Michael C. Van Milligen, City Manager ~rvice People Integrity Responsibility Innovation Teamh'ork r:--\ i : '. . Sec. 39-1. Speed restrictions. No passenger train shall be operated over and upon the grade crossings in the city at a speed of greater than thirty (30) miles per hour, nor any freight train at a speed greater than twenty-five (25) miles per hour. (Code 1976, 9 32-2) Sec. 39-2. Unlawful deposits. No debris or substances of any kind shall be deposited or permitted to be deposited upon any street where railroad tracks are located and where cars are placed to be loaded or unloaded either by abutting owners or occupants of property or other persons. (Code 1976, 9 32-3) "--"- ( '. Sec. 39-3. Maintenance of crossings, rights- of-way. (a) Notice to repair. Whenever the councilor manager shall consider repairs necessary Upon street, avenue or alley crossings or rights-of-way occupied by the railroad company operating within the city, the council or manager shall notify such company to make the required repairs, which no- tice may be served upon or mailed to any officer of the company and shall state the time and place when and where such repairs shall be made and prescribe the materials with which such repairs shall be constructed. (b) Performance of work by city Upon company's foilure to make repairs after notice. All repairs to railroad crossings or rights-of-way ordered made by the councilor manager shall be fully performed without delay at the expense of the company so notified. However, should repairs be ordered and not made by any company the councilor manager shall proceed to have such repairs made. (c) Collectian of costs of repairs made by city. The expense of repairs made by the city pursuant to paragraph (b) of this section shall be charged to the company and collected, if necessary, by suit of any court of com~tent jurisdiction. Cd) Manner of repairs; materials; superoisioTL The manner in which the repairs provided for in paragraph (a) of this section shall be made and n CITY Ci=DINFJ'.CE RAILROADS ~ 394 the materials to be used shall be designated by the manager and the work shall be performed under the supervision of the manager and the en- gineer. (e) Proration of expenses between railroads_ Whenever repairs are ordered to be made, pur- suant to this section, at an-y crossing which is used by more than one railroad, each railroad shall bear such proportion of the expense thereof as the amount of space occupied by such railroad bears to the whole amount of repairs ordered. The man- ager shall determine the amount of repairs which each road shall make and the manager's decision shall be final. (f) Effect of section as to previous grants. Wher- ever grants to railroad companies, made previous to August 2, 1920, prescribing the manner in which repairs at railroad crossings shall be made are in conflict with this section, the same ere hereby repealed and the provisions of this section are intended to supersede the same. (Code 1976, 9 32-4) Sec. 39-4. Use of certain track as team track restricted. Track No.3 located upon Jackson Street in the city and extending from Sixth Street to Eleventh Street and owned and constructed by the TIJinois Central Railroad Company shall not be used as a "team track" for the loading or unloading of rail- road cars thereon; provided, however, that should a request be made upon any railroad company by the owner or-occupant of abutting property to place a car to be loaded or unloaded on said track oppo- site or in front of such property, then and in that event cars may be loaded or unloaded upon such track, but the same shall be so loaded or unloaded only in front of or opposite the abutting property whose owner or occupant has made the request; provided, further, that, should any person other than abutting owner or occupant desire the priv- ilege of loading or unloading cars upon such track, such person shall first procure the consent of the owners or occupants of abutting property on both sides of the streets where it is desired to load or unload such car, and if such consent is obtained such car may be loaded or unloaded by such par- 2477 O?/07/99 ~~ 09:17 F.~ 1 ~19 J44 77J~ ,c.' -V"-."\:'.:1 ::L:.:i..:\.LlJ .".:.,:);:\.::1 I~ RAIL LI4'<X D;C. ~OOl ~, '-X" RflIL& UI\IK 5'9'7 Lfl '+9 September 7, 199.9 Telegraph Herald 801 Bluff Street Dubuque, lA 52001 ,... ua.....u. lQl0 EA~ CMdflll.Y f'OAO OAVI~. IOWA '~.20'3.J, 131'" ~70.oo 01g1 '"'-4-~'AX RE: Press release The I & M Rail Link is upgrading their track and signal equipment through Dubuque. I & M Rail Link Northem Division Superintendent, Steve Norton said that speeds could be Increased as soon as September 10th. Track speeds are governed by the condition of the track and equipment. The upgrades will enable the I & M to run trains at speeds up to 40 MPH through Dubuque. I & M Rail Link's maximum track speed is currently 20MPH through Dubuque. Todd Law who is both an Operation .Lifesaver presenter and J & M 's Chief of Police, warns the public to Look, Listen and L1ve! Several rail grade crossings in Dubuque will be affected to include the Lincoln Ave and Hawthorne crossings. Yours truly, --:/-L/~ Todd Law IMRL Chief of Police cc: Ken Koff Steve Norton (!CU) S'lL- UJ~ Kerth BeckIe Mark Milewsky ? L...~..d . . ~/ r[ ll-" C'" ,....,- cr-i'. ~ 1. ~ruh. A lfU......hingtOan Con1psny C/I -\\,~ ~ ,jU~~ '---, \ o~s~ Trninmnster I &M Rail Link Mnrquette, Iowa 52158 Monica Meissner 1902 Garfield A venue Dubuque, Iowa 5200 I Dear Sir or Madam: This letter is in reference to the 40-mph train speed within city limits, past a residential area and through crossings without signal lights or gates. This is not a very good idea; in fnct, this is very short sighted. Behind our house, at the bottom of a steep bank, with industrial buildings located on the side opposite the steep bank, lie the I&M Rail Link tracks. The tracks run through land that we Own with the railroad having a Right of Way agreement. As of yet, I have not r.esearched what liberties the Right of Way agreement gives the railroad. But I wonder does it give the railroad the freedom to travel as fast as they want without regard to safety? Does it give the railroad the right to travel through residential areas carrying hazardous substances that may endanger our lives in case of a leak or an accident? The faster the train, the greater the risk of an accident, and the greater the noise. For these reasons, safety and noise, I'm requesting no increase in the speed of trains through our town. ' You can reach me by mail at my home address above; or call me at (319) 582-230 I. I look forward to your swift artention CO this marter. Sincerely, ~r1~ ht~ Monica Meissner Cc: Mayor Terry Duggan City Manager Mike Van Milligan _ NoV. ~ ~ From the desk of... ~ JOH~ J Wl~NER .fJ~~ k: ~ ;?~?t;~ 0 . ~#~~~ ?i:i-~~o . ~ -r-~~~ _~J-d..~ ~ ~_<" 5l~~ l-f-& ~ ~ ~ ~ +-~? ~o ..~/l(J:rJ . o/J ~ cfk ~ /l'"7L~ ~ t.+v.... -t1 r..::tt; t~, ~- e--,~~ T ~ /1..!-- 0 - If .1 . / C/v/ / j} ~-~-.J~ / ;;:;0- . 0. J{. J~ ~ af .yo, oJ (X ~ ~;-"' -701--<'4, ~ ~ ~ tf?"-.L, ~ #<7 J r.J4, ~~' . " t{ ~~ '" 7L.. 11~ W" ~ //rr:tO c--<<:T ~1 f /. II ~CJ" 'iI~?,""" ~ ~.:. ;~~ . 0 2 1.~ ~ ~ From the desk of... a-.-9- r /'-:te -<UJI- ~ ..J.//U< /~-r! d~ ~~~ OO~@~OW~[Q) "'"'\J :'; ~ "j . 1 :") ~fl,,~.-" ...,. _ t:.. .'j;;::f ;;:. ~.,., I : '.... . , Lk:~i' d"Ju SEt\,VLCES FLETCHER & SIPPEL LLC Two Prudential Plaza. Suite 3125 180 North Stetson Avenue Chicago, Illinois 60601-6721 Phone: (12) 540-0500 Fax: (12) 540-9098 www.fletcher-sippel.com James D. Helenhouse (312) 540-9450 j helen house@fletcher.sippel.com May 18, 2000 RECEIVED MAY 2 2 200a RAIL TRANSPORTATION Modal Transportation Division Office of Rail Transportation Iowa Department of Transportation 800 Lincoln Volay Ames, IA 60010 Re: Iowa Department of Transportation Docket No. RR-RO-OO-l 1& M Rail Link, LLC's Position Paper In Opposition To Dubuque City Ordinance No. 39-1 Dear Sir or Madam: Enclosed please find the original Affidavit of Scott F. Woodard. A copy of the Affidavit was mailed to you on May 17, 2000, with I & M Rail Link, LLC's Position Paper in Opposition To Dubuque City Ordinance No. 39-1. If you have any questions, please call me at 312-540-9450. . Thank you in advance for your assistance in this matter. Sincerely, Ajr~ /James D. Helenhouse JDH:lmd Enclosure cc: James L. Gibson, Esq. (w/o enc.) Walter Orze, Esq. (w/o enc.) Mr. Scott F. Woodward (w/o enc.) V<.JI_I/UU "J.:..L.J Uo.,J.o,J.;) 4'.""L.}" J.. oJ.l..;J <.J~""t jjoJ';' '"'i'r-I a-cuuu. U4; Caplll r rom-fLETCH:.~ 4 SIPPEL LLC ~':':.l.L ",-;.~L. L.~,H~ L:..~""'. +31ZS40S0gg '4J 002 T-17S P.DDS/OOS F-40r . ....... .. .-. . .. . . . ...... .......... ..... ..O'.. , ... . IOWA DEPARTMENT OF TRANSPORTATION DOCKET NO. RR-Ro.OO-l AFFIDAVIT OF SCOTT F. WOODWARD ~ Scott F. Woodward being first duly !\1I'om, on oath deposes and says: 1. I am the ChicfEngineer for 1& M Rail Link, LtC ("IMRL"). I have full knowledge of the information contained in ~s affidavit and could testify to these matters if called to do so. 2. IMRL is an interstate rail carrier. It owns track in and operate trains through Minnesota, Iow~ Mi3scuri, Wisconsin W1d Illinois. 3. IMRL operates tmee nonh~ound (compass north) trains through Dubuque daily at apprcxi;natC!ly ~.2:P9. a"~'ll ,3.;qO..~Jll.,.and ~.:OO.p.m,. lMRL operates three southbound trains through Dubuque daily at approximately 9;00 a.m., 11 :00 a.m., and 3:00 p.m. Many of these trains and/or the cars on the train originate in another state and/or have destinations in another state. 4. In Dubuque, IMRL operates over track owned by IMRL and track owned by Chicago Central &. Pacific Railroad rCC&P)'J). w track map, attached hereto as Exhibit A These tracks run through an industri~ area along the Mississippi River on the east side of Dubuque. This area hcu a relatively low level of motor vehicle traffic. IMRL does not operate through any residenti:l or highly populated areas. 5. South of Dubuque, IMRL begins opera.ting on CC&P track at milepost 41.7 and continues on GC~ ~c:Jc in.I!IJbuque until milepost 43.6. This section oftraclc is highlighted pink on Exhibit A This section of CC&P track has two grade crossings, both of which are protected by signals and gates. While operating between milepost 41.7 to milepost 43.6, IMRL complies with Cc&p's timetable speed of25 m.p.h. 05/1i/00 \ffiD 08:39 F.~ 1 319 3~~ ii32 MaY-J=-'UU~ U4:c4pm frcm-FL:TCHER , SIPPEL L~C I&~ R~IL LI~~ ENG. +31Z540QOQa @003 T-17Q P.DD5/DOS F-4a7 6. From milepost 43.6 and continuing through Dubuque. IMRL operates over its own main line track. This section of track is highlighted blue on Exhibit A. On this section ofttack. IMRL operates pursuant to its timetable &peed of2S m.p.h. The grade crossings in this section of track and the protection at these cro5Sings is .set forth in the following table: Street ProteCtion .. Seventh Street" .. ...... .... . Gates and 'Flashers' Nmth Street Gates and Flashers Eeventh Street Gates and Flashers Twelfth Street Flashers Fourteenth Street Flashers FIfteenth Street FIa:lhers Sixteenth Street Flashers 7. From milepost 44.5 continuing through the rest of Dubuque; IMRL operates at a maximum speed of 40 m.p.h. on jts main line tri!.ck This section of track is highlighted yellow on Exhibit A In this final section of track there are only two grade crossings: Hawthorne Str~t ~d ~~C9.ln. A\!C1):u.e..... IJaWthome Street.is protected by flasher,> while LmCQIn Aveme is protected b)' crossbucks. 8. There a~ no unusual \'i&Dility problems at any of the crossings over which IMRL operates in Dubuque. The crossings in Dubuque are typical of grade crossings throughout the state, over many ofwhic:h IMRL Dperates. at higher speeds. To my knowledge - l:MRL has not had any grade crossing accidents at any of the crossings on its main line track: or on CC&;P)s main line track in Dubuque. On March 20. 2000. IMRL had a gnde crossing accident on an industrial lead track at Kerper Boulevard. The train was traveling 5 m.p.h. when a. motorist nying to beat the train to the crossing collided with the train. In my opinion. given the 2 05/17/00 WED 08;~0 F.li 1 319 3~~ 7732 ft41 I.-'~~V V~'~~~m rrom-r~=I~MCK' SIPPEL ~~C I&~ ~~IL LI~h ENG. +31ZS40Q09a l4J OO~ T-/79 P.004/aos F-407 train trsffic volumes at these crossings" the signal protection and the fact that lMRL bas not had any accidents at its mfUj;.lin~ t~Ck" g~~" Q-~Ssm~' i~ D~buque, a lower speed is not warranted. 9. As Chief Engineer for IMR.L, I am responsible for supervising the construction and maintenance of1MRL's track and road~. I am also responsible for ensuring that lMRL' s track complies with an applicable requirements, including those that arc imposed by the Federal Railroad Administration ("FRA"). ] O. The FRA has established 8. dasstfication system for classifying all railroad track in the United States. The sy5tem established six (6) classes of track, Class I through VI. These classifications arc set out in the FAA Track Safety Standard:i which are contained in Part 213 of Title 49 of the Code ofFederaI Regulations. 11. The classification of the track depends on the: roadbed, the track geometry, and the track stIuctUre-as 5~ forth by" tii~ ~~i; "in p~ "213. IMRL'!l track in the City of Dubuque is Class m. Pursuant to 49 C.F.ll. ~ 213.233, Class m track must be inspected two- times-a-week to assure compliance with the requirements Part 21:;. In addition to visual inspections performed twice a wee~ IMR.L inspects its track with a geometry car. which provides a computerized readout of the geometric conditions of the track, and a rail detector. which is an ultrasonic detector used to identify internal defects. OIl at least an annual b~. 12. In 49 C.F.R. ~ 213.9, the FRA has established a maximum allowable operating speed for freight trains and passenger trains for each of six classes of track. Thl! maximum allowable operating speed set by the FRA for freight train3 operating on Class m 4 track is 40 nJ.p.h. Although the FR.A speed regula.ticms allow IMRL to opo-ateat 40 m.p.h. over its track in DubUque) beCause ofthc'configur~tion' of the el~ctroPic circuitry and the presence of , cU1Ves~ IMRL has set a timetable speed of25 m.p.h. between mileposts 43.6 and 44.5. lMRL 3 05/1i/00 IffiD 08:40 FAX 1 J19 J44 iiJ2 --. ,- ~~~~ ~~.~~~ rrcm-r.~I~n~~ J ~lrr:L LLC I&~ ~~IL LINK ENG. +31Zo40g0gg T-179 P.003Io0B F-40T @005 operates at up to speeds of 40 m,p,h. on the remainder ofrts track in Dubuque. JMRL's tnnsportation officers use radar to check compliance with its timetable speed and thfS speed limits set forth in 49 C.F.R. ~ 213.9. 13. Ml.1niclpaI regulation of train speeds has a negative impact on safety. lfa m.in maintains a. steady ~ there is less of a chance of a derailment, i.e.. if a train must a10w down for a municipal speed restriction the chance of l! derailment increases. Additionally, ~ is a greater likelihood rJ! a ~~ ~s.s~g. ~~d~t. wh.~ rap.rcads are forced to comply with local speed ordinances. There are two main reasons for thi3. First, when a train operates at a slower speed, it occupies grade crossings for 11 longer period of time. Many grade crossing acci.denu involve situations where the car hits the train. If a train is occupying a crossing for a longer period of time, this increases the window ofexpo!ute in which a ear might hit a train. Sccon~ when a train travels at a slower speed, many motomts have a tendency to disregard the grade crossing warnings. k. they are mc~ likely to try to beat the train to the crossing. Again, this inaeases the risk of a grade: crossUlg accident. 14. Local train speed restrictions }lave several adverse effects on. railroad operations. Slowing the train for local restrictions causes additional wc~r and tear on the track and tail equipment. Th1s r~lt!l. in ~~g~c=.r .~aJ.nt~~C:l!l ~nd TCPair costs. Additionally. slowing the train before entering an area restricted by a speed ordinance and accelerating upon leaving the area resultS in higher:fuel costs. Local speed restrictions also c:ause longer travel times) which in turn increase labor costs. ~ puts at risk the ability to connect with other carriers and to . - serve customers. 15. IMRL has alligniflcant investment in upgrading its track to and maintaihing its track at higher cJassiDcations. For instance, IMRL has spent close to two 4 05/1i/00 WED OS:-!O F.li 1 J19 J-!-! iiJ2 M~Y-ID-'UU~ U4;Q4pm rrcm-FLETCHER' SIPPEL LLC I&M ~~IL LI~l( ENG. +312540909a [4] 006 T-179 P.DDZ/DDS F-4DT millions dollars upgrading its track in Dubuque from Class I to Class ill track. IfIMRL is forced to comply with local ordinances, such as City Ordina.nee 39-1, the return on these investments are lost. APFJANT FURTHER SA SUBSCRtBFD AND SWORN TO before me this I t::, day of May. 2000. () ;),~~ .ph. Notary Public My Cornrni!lSion expires: ~-2 7-0:2- -,- ..". .- I " _ .. - ",. :- ,.. ,... ,,- -- ~ ...-.. ,- J '"'J ......, " -'"~ '" .~:~:";;-;.::~_.<;~~~.. _.._......___ - _:: .....0 5 \ ..... ,,- ? ~ ~ ~ ~ ---- OJ4 oc._~ .;:; """":: 01" <.- "."}/1' N --- .... .. 'QrJ ~.!J_ O'~3.1~:J Q ~-- ~~ 0_,..... _€.I.!.. ~"'l~ ~ _Gl~ \0 - 0) g ...:::. 1-'::':-1 · J ' ._~,n. III _ .......CIot O.JS'<.:,~ "".. J -.:;",,, D .... 1,.1 "N' C.lA ""!. ..- . o.o~~"'::'1 ~.J:l 0"4.,1:-__ .. . -?~''''.s ----- ~,,"'- ~.... -....~. ..... U1 t · .. IrI [.;~ . , ~.~~ c:.~~:i.' ~ N'" ..,:,.'-._ .bi-; ~....,_.. ~w. D.? 1 ':.: ~.~''''';' ~a3.1_ ...,'" o ., O:;~ttJ-:. ~ ~ !.I~-......~ c: :~Z~,.., 12..~' ~=:_ ... O.~ r.r: -~ CJ..II J (JJ Cd Q.7 a,o -;:::"..:- c;,S __- ...\_. - & ~ -"1:... tl.- ,"5: _--"'.... r - >C:- - 30 N"6 .... o.-"L.;.........__ o' 3.~'~>__ 1-0' .~__ .... '.0/' --- "'. . .-~ +=' ..-:.N , ~ ~ ~J C; 2 (b , ' 't , " ~. . i : ~ " ::I ~ P 19 ~ A .J "0 --r- 01-10 ~"",y. )l.J...c". j 11;. 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J!""C;"::..;.r .J 'V ::: i . .I ~ J l ~I . . ~ 1 , ~ , . , I , II . i ~ C\ Xl I ~ : 'J I f- ~ ; \ ...... ~ "- If ~ ( rJ:(~ I' .... , ~ : I... .--- - -- "50 ~t' .~f . . "":: 'll) tJ . ~~ ..;} . ~o ' " '/I, (', ' ~ cc ?>-----E~~_- ~ 6/",,_ 10. I'tt, , . -~~ -~~ _~L c. A o ~ ~.lL .0 CI '*' ~ " J r~o' ::'_,_ . ~.or~- ~ 0.58 ..J~_ I~] ,.... ~a" :~I - ,'j -\fL ~ T"""..,..,.....,.......,.,..., "'It. CERTIFICA TE OF SERVICE The undersigned attorney states that he caused a copy of I & M Rail Link, LLC's Position Paper in Opposition To Dubuque City Ordinance No. 39-1 and Affidavit of Scott F. Woodard to be served upon: Modal Transportation Division Office of Rail Transportation Iowa Department of Transportation 800 Lincoln Way Ames, IA 60010 and James L. Gibson, Esq. Iowa Department of Transportation 800 Lincoln Way Ames, IA 60010 by depositing copies of the same in the United States First Class Mail, postage prepaid, located at 180 North Stetson Avenue, Chicago, IL 60601 before the hour of5:00 p.m., this 17th day of May, 2000. James D. Helenhouse FLETCHER & SIPPEL LLC Two Prudential Plaza, Suite 3125 180 North Stetson Avenue Chicago, Illinois 60601-6721 Phone: (312) 540-0500 Fax: (31 Z) 540-9098 www.fletcher-sippel.com James D. Helenhouse (12) 540-9450 j helenhouse@flerche[-sippel.com May 17, 2000 Modal Transportation Division Office of Rail Transportation Iowa Department of Transportation 800 Lincoln Way Ames, IA 60010 RECEIVED MAY 2 2 2000 RAIL TRANSPORTATION Re: Iowa Department of Transportation Docket No. RR-RO-OO-l I & M Rail Link, LLC's Position Paper In Opposition To Dubuque City Ordinance No. 39-1 Dear Sir or Madam: Enclosed please find the following documents for filing with the Iowa Department of Transportation in the above-referenced matter: I & M Rail Link, LLC's Position Paper in Opposition To Dubuque City Ordinance No. 39-1 and a copy of the Affidavit of Scott F. Woodard. I will send you the original Affidavit under separate cover within the next couple of days. I have also enclosed some of the principal authorities relied upon in I & M Rail Link LLC's Position Paper and a list of the authorities enclosed. If you have any questions, please call me at 312-540-9450. Thank you in advance for your assistance in this matter. Sincerely, JDH:lmd Enclosures cc: James L. Gibson, Esq. (Copies of Position Paper and Affidavit Only) Walter Orze, Esq. (w/enc.) Mr. Scott F. Woodward (Copies of Position Paper and Affidavit Only) J=es&~ IOWA DEPARTMENT OF TRANSPORTA nON DOCKET NO. RR-RO-OO-l I & i\'I RAIL LINK, LLC'S posmON PAPER IN oPPosmON TO DUBUQUE CITY ORDINANCE NO. 39-1 I. Introduction On April 17, 2000, I & M Rail Link, LLC ("IMRL") was served with a letter from the Iowa Department of Transportation (the "Department"), which indicated that the City of . Dubuque, Iowa, pursuant to Iowa Code 9 327F.31, has requested that the Department approve City Ordinance No. 39-1, which limits the speed of freight trains passing through the City of Dubuque to 25 m.p.h.. Pursuant to Iowa ~dministrative' Code 761-800.15(3), IMRL is submitting this position paper to the Department. In further support of its position, IMRL is also submitting the affidavit of Scott F. Woodward, IMRL's Chief Engineer. It is IMRL's position that the Department should not approve City Ordinance 39-1 because local and state regulation of train speed is preempted by federal law and violates the Commerce Clause of the United _ States Constitution. Additionally, the factors that the. Department is to consider pursuant to Iowa Administrative Code 761-800.15(4) in ruling on the city's request weigh heavily in favor of disapproving the ordinance. ll. General Facts IMRL is an interstate rail carrier. It owns track in and operate t~ains through Minnesota, Iowa, Missouri, Wisconsin and Illinois. Woodward Aff. at ~ 2. IMRL operates three northbound (compass north) trains through Dubuque daily at approximately 12:00 a.m., 3:00 a.m., and 3 :00 p.m. IMRL operates three southbound trains through Dubuque daily at approximately 9:00 a.m., 11 :00 a.m., and 3 :00 p.m. Many of these trains and/or the cars on the train originate in another state and/or have destinations in another state. Woodward Aff at ~ 3 In Dubuque, IMRL operates over track owned by IMRL and track owned by Chicago Central & Pacific Railroad ("CC&P"). Woodward Aff at ~ 4. These tracks run through an industrial area along the Mississippi River on the east side of Dubuque. This area has a relatively low level of motor vehicle traffic. IMRL does not operate through any residential or higWy populated areas. Woodward Aff at ~ 4 . South of Dubuque, IMRL begins operating on CC&P track at milepost 41.7 and continues on CC&P track in Dubuque until milepost 43.6. This section of CC&P track has two grade crossings, both of which are protected by signals and gates. While operating between milepost 41.7 and milepost 43.6, IMRL complies with CC&P's timetable speed of 25 m.p.h. Woodward Aff at ~ 5 From milepost 43.6 and continuing through Dubuque, IMRL operates over its own main line track. On this section of track, IMR.L operates pursuant to its timetable speed of 25 m.p.h. The grade crossings in this section of track and the protection at these crossings is set forth in the following table: Street Seventh Street Ninth Street Eleventh Street Twelfth Street Fourteenth Street Fifteenth Street Sixteenth Street Woodward Aff at ~ 6. Protection Gates and Flashers Gates and Flashers Gates and Flashers Flashers Flashers Flashers Flashers 2 From milepost 44.5 continuing through the rest of Dubuque, IMRL operates at a maximum speed of 40 m.p.h. on its main line track. In this final section of track there are only two grade crossings: Hawthorne Street and Lincoln Avenue. Hawthorne Street is protected by flashers, while Lincoln Avenue is protected by crossbucks. Woodward Aff at ~ 7. There is nothing unusual about any of the crossings over which IMRL operates in Dubuque, and Th1RL has had a history of relatively safe operations through Dubuque. ID. An?:ument The Department should not approve Dubuque City Ordinance 39-1 because: (A) the ordinance and the procedure for approval of the ordinance, including the procedures set forth in Iowa Code ~ 327F.31, are preempted by. federal law, (B) the attempted regulation of train speed places an undue burden on interstate commerce in violation of the Commerce Clause of the United States Constitution, and (C) the factors that the Department is to consider pursuant to Iowa Administrative Code 761-800.15(4) in making a decision of whether to approve a train speed ordinance weigh heavily in favor of disapproving City Ordinance 39-1. Each of these arguments is addressed in the following subsections. A. Federal Law Preempts City Ordinance 39-1 Federal preemption of state law is based upon the Supremacy Clause in Article VI, Clause 2 of the United States Constitution, which forbids the enforcement of any state law that conflicts with a valid federal statute. Fidelity Fed. Sav. & Loan Ass'n v. de la Cuest!!, 458 U.S. 141, 152-153 (1982). There are three types of preemption: (1) express preemption, where Congress defines explicitly the extent to which a federal statute preempts state law; (2) field preemption, where Congress' regulation of a field or the federal interest in a matter is so pervasive that an intent to occupy the entire field can be inferred; and (3) conflict preemption, where state law stands as an obstacle to the accomplishment of the purposes and objectives of a federal statute. English v. General Elec. Co., 496 U.S. 72, 79 (1990). The overriding principle 3 guiding any detennination of federal preemption is whether Congress intended to preempt state law. Id. City Ordinance No. 39-1 and the procedure for approval of the ordinance are preempted under each of the three types of preemption via the ICC Tennination Act of 1995 ("ICCT A"), Pub. L. 104-88, 109 Stat. 806 and the Federal Railway Safety Act ("FRS A"), 49 D.S.C. S 20101 et. seq. 1. The FRSA Preempts City Ordinance 39-1 City Ordinance No. 39-1 and the approval process relating to it, are expressly preempted by the Federal Railway Safety Act ("FRS A"), 49 D.S.C. S 20101, et. seq. The FRSA preemption clause provides: Laws, regulations, and orders. related to railroad safetyl shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order governing the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety when the law, regulation, or order - (1) is necessary to eliminate or reduce an essentially local safety hazard; (2) is not incompatible with a law, regulation or order of the United States Government; and (3) does not unreasonably burden interstate commerce. 49 D.S.C. 920106. Thus, Congress expressly intended that the FRSA preempt all state railroad safety regulation except for that which falls within one of the savings clauses. The first savings clause, Le., where the Secretary of Transportation has not regulated the area, does not apply to City Ordinance No. 39-1. The Secretary of Transportation has established a classification system for all railroad track in the United States and has enacted City Ordinance No. 39-1, a train speed ordinance, is "related to railroad safety." CSX Transp.. Inc. v. City of Plymouth, 86 F.3d 626, 629 (6th Cir 1996). 4 regulations specifically designating operating speeds for each class of track. 49 C.F.R. S 213.9; Woodward Mfat ~~ 10-12. IMRL's track in Dubuque is Class III. Woodward Aff at ~ 11. The Federal Railroad Administration has set a maximum operating speed of 40 m.p.h. for freight trains on Class ill track. Woodward Aff at ~ 12. Dubuque's more stringent ordinance, which sets a speed limit of 25 m.p.h. for freight trains, cannot co-exist with the federal regulations governing train speed. CSX Transp. Inc. v. Plymouth, _ F. Supp.2d _, 2000 WI.. 520672, * 11 (E.D. Mich. 2000) ("There can be little doubt that to the extent the state statute regulates speed, it is preempted by the FRSA, because the federal regulations cover the subject matter. "); Southern Pac. Transp. Co. v. Baldwin. 685 F. Supp. 601, 603 (W.D. La. 1987); Consolidated Rail Corp. v. Smith, 664 F. Supp. 1228, 123,6 (N.D. Ind. 1987). Under the second savings clause, once the Secretary of Transportation has prescribed a regulation governing the subject matter (in this case 49 C.F.R. 9213.9), the more stringent state law is preempted unless it is established that the state law is necessary to reduce a local safety hazard, is not incompatible with the federal law, and does not unreasonably burden interstate commerce. City Ordinance No. 39-1 does not fall within the second savings clause because it is not a state law, it is not necessary to eliminate a local safety hazard, it is incompatible with federal law and legislative intent, and imposes an unreasonable burden on interstate commerce. The FRSA allows only a state law to remain in effect once the Secretary of Transportation has prescribed a regulation relating to the same subject matter. Section 20106 gives no authorization for legislation or regulation to local governments. Moreover, each court that has addressed the issue of whether 9 20106 permits a municipality to regulate train speed has answered the question in the negative. See,~, Grand Trunk Western R.R. v. Merrillville, 738 F. Supp. 1205, 1207 (N.D. Ind. 1989); Covington v. Chesapeake & Ohio Ry., 708 F. Supp. 806, 5 808-09 (B.D. Ky. 1989); CSX Transp.. Inc. v. Tullahoma, 705 F. Supp. 385, 387-88 (B.D. Tenn. 1988); Chesapeake & Ohio Ry. v. Bridgman, 669 F. Supp. 823, 826 (W.D. Mich. 1987). The City may argue that because City Ordinance No. 39-1 is subject to approval by the Department, the ordinance is regulation by the state and not the municipality. However, the mere approval by the Department of the city's ordinance does not magically transform the municipal ordinance into a state law, regulation or order. Rather, state action for purposes of 9 20106 means active involvement by the state in the promulgation and enforcement of the state rule, law or regulation. As noted by the United States District Court for the Northern District of Indiana in Consolidated Rail Corp. v. Smith, "[s]ection 434 [the predecessor to 49 US.C. 920106] does not say a state may regulate by.ordinance. . .." 664 F. Supp. at 1237. Moreover, if a municipal ordinance can survive preemption merely because it is approved by a state agency, the Congressional purpose of making railroad regulation nationally uniform would be frustrated. For example, even if the Department is involved in the approval of a city ordinance, it would not be involved with the enforcement of the city ordinance. Thus, rather than being subject to just state and federal authority, which Section 20106 contemplates, Th1RL is potentially subject to separate regulation by every city, village, township, or other political subdivision along its track. The case law is clear that "[s]eparate municipal regulation of speed is . . . greatly at odds with the Congressional purpose ofunifonnity . . . ." Consolidated Rail Corp., 664 F. Supp. at 1238. Even if City Ordinance No. 39-1 could be considered a state rule, law or order, the ordinance is still preempted because it is not "necessary to eliminate or reduce an essentially local safety hazard." An essentially local safety hazard is a condition that is unique to the particular location and causes a unique concern relating to safety. The general physical conditions of a railroad crossing do not constitute an essentially local safety hazard because these 6 conditions can be present in grade crossings and track areas throughout the entire state. See O'Bannon v. Union Pacific R. Co., 960 F. Supp. 1411, 1421 (W.D. Mo. 1997) (alleged inadequate warning devices, a steep grade, the angle of the crossing and the proximity of the crossing to a nearby highway are not local safety hazards); Herriman v. Conrail. Inc., 883 F. Supp. 303, 307 (N.D. Ind. 1995) (lighting in the area ofa crossing is not a local safety hazard); Wright v. Illinois Central R. Co.. 868 F. Supp. 183, 187 (S.D. Miss. 1994) (vegetation, the grade, the angle of the crossing and alleged inadequate warning devices are not local safety hazards); Earwood v. Norfolk Southern Ry. Co., 845 F. Supp. 880, 888 (N.D. Ga. 1993) (multiple tracks and rail cars obstructing the view of a train crew are not local safety hazards); Armstrong v. Atchison Topeka & Santa Fe Ry. Co., 844' F. Supp. 1152, 1153 (W.D. Tex. 1994) (a high vehicular traffic count is not a local safety hazard); Estate of Martin v. Consolidated Rail Corp., 620 N.E.2d 720, 725 (Ind. App. 1993) (the physical conditions at a crossing are not local safety hazards); Paddock, 571 N.W.2d 564, 566 (Mich. App. 1997) (alleged dangerous conditions at a . crossing are not a local safety hazard); Emery v. Southern Ry. Co.. 866 S.W.2d 557, 559 (Tenn. App. 1993) (a 20 foot high embankment obstructing the train crew's view is not a local safety hazard); and Bakhuyzen v. National Railroad Passenger Corp., 1996 U.S. Dist. LEXIS 1884 at *9-10 (W.D. Mich. 1996) (an obstructed view and alleged inadequate warning devices are not local safety hazards). Rather, an essentially local safety hazard "must be a discreet and truly local hazard, such as a child standing on the tracks or a motorist stranded on the crossing." See, ~ O'Bannon, 960 F. Supp. at 1420; Herriman, 883 F. Supp. at 307. Indeed, the Department has held that obstructions to visibility, such as buildings, vegetation, and poor sight lines, and the proximity of tracks to public parks, schools and occupied buildings do not constitute local safety hazards. See,~, City of Guttenberg v. Soo Line Railroad Co., Docket RR-RO-93-1, Decision and Order, dated November 17, 1993. 7 While Dubuque has not yet filed its position paper regarding City Ordinance 39-1, it is highly unlikely that Dubuque would be able to identify local safety hazards that would. justify a speed limit applicable throughout the entire city. In the event Dubuque does take the position that a local safety hazard(s) does justify a speed limit throughout the entire city, IMRL would certainly dispute whether the condition(s) do in fact constitute an essentially local safety hazard. The evidence shows that there is nothing unusual or particularly unsafe about the grade crossings over which IMRL operates in Dubuque. IMRL operates through an industrial area along the Mississippi River in Dubuque. Woodard Aff at ~ 4. IMRL does not operate through any residential or highly populated areas in Dubuque. Id. All but one of the grade crossings over L\1RL's main route in Dubuque are. protected by gates and/or flashers. Id. at ~~ 5-7. Moreover, IMRL has never had a grade crossing accident on its main line track in Dubuque.2 Id. Finally, as an operational concern, IMRL travels at a maximum speed of25 m.p.h. over all of the crossings, except for two, at which it operates at a maximum speed of 40 m.p.h. Woodward Aff - at ~~ 5-7. In light of the population density in the area, the signals at the crossings, the lack of grade crossing accidents, and IMRL's operating speeds, the City would be hard-pressed to identify a local safety hazard. In the absence of compelling evidence of a local safety hazard, City Ordinance 39-1 must fail. City Ordinance No. 39-1 i.s preempted for the additional reason that it is incompatible with the regulatory framework of 49 C.F.R. 9213. As the Supreme Court of Michigan explained, While it is possible for trains to obey both the federal and local limits, it is clear that enforcement of the much lower local limit would substantially interfere with the carefully wrought federal scheme. It is undisputed that trains take many miles and a 2 On March 20, 2000, IMRL had a grade crossing accident on an industrial lead track at Kerper Boulevard. The train was traveling 5 m.p.h. when a motorist trying to beat the train to the crossing collided with the train. WoodwardAff at ~ 8. 8 substantial amount of time to shift between substantially different speeds. Authorizing local speed limits . . . would raise the specter of a patch-work of conflicting local rules interfering with the uniformity and smooth operation of the federal regulatory framework. Grand Trunk Western R.R. v. Fenton, 482 N.W.2d 706, 708. In publishing its track safety standards, the Federal Railroad Administration ("FRAn) also explained that local train speed ordinances are incompatible with the federal regulatory framework: FRA's current regulations governing train speed do not afford any adjustment of train speeds in urban settings or at grade crossings. This omission is intentional. FRA believes that locally established speed limits may result in hundreds of individual speed restrictions along a train's route, increasing safety hazards and causing train delays. The safe train maintains a steady speed. Every time a train must slow down and then speed up, safety hazards, such as buff and draft forces, are introduced. These kind of forces can enhance the chance of derailment with its attendant risk of injury to employees, the traveling public, and surrounding communities. FRA always has contended that Federal regulations preempt any local speed restrictions on trains. 63 Fed. Reg. 33991, 33999 (June 22, 1998). Thus, in addition to being incompatible with the federal interest in uniformity, . local speed limits also conflict with federal interests in safety, and as such, are preempted. Local regulation of train speed is preempted for the additional reason that it places an undue burden on interstate commerce. While the City may argue that the effect .that City Ordinance 39-1 has on commerce is not substantial, this misses the point. Allowing Dubuque to regulate train speed would open the door for other municipalities to regulate train speed. The cumulative effect of such patchwork regulation would be devastating to interstate commerce. Local train speed limits interfere with interstate commerce because lower train speed increases the risks of derailments and grade crossing accidents. Local train speed limits increase the cost of interstate commerce in that compliance results in higher fuel, labor and maintenance costs, 9 and puts at risk a railroad's ability to serve its customers and to connect with other carriers. Southern Pac. Transp. Co. v. St. Charles Parish Police Jury. 569 F. Supp. 1174, 1177 (E.D. La. 1983) (explaining that local train speed restrictions increase the risk of derailments and grade crossing accidents and seriously impedes the efficient operation of railroads); see also Woodward Aff. at ~~ 13, 14. Courts recognizing the burdens and dangers of local speed regulation have concluded that local attempts to regulate train speed unduly interfere with interstate commerce. Southern Pac. Transp. v. St. Charles Parish Police Jury, 569 F. Supp. 1174 (B.D. La. 1983) (holding that a train speed ordinance unconstitutionally burdened interstate commerce); Ohio v. Schwart~ 435 N.E.2d 689 (Ct. App. Ohio 1980) (same). Because City Ordinance 39-1 places an undue burden on. interstate commerce and approving the ordinance would open the door for other municipalities to similarly place burdens on interstate commerce, the ordinance and the approval process are preempted. 2. The ICCTA Preemots City Ordinance No. 39-1 City Ordinance No. 39-1 and the approval process are preempted by the rCCTA Numerous courts have held that rCCT A preempts state law attempts to regulate rail transportation. See,~, CSX Transp. v. Plymouth,. F. Supp.2d, 2000 WL 520672 (B.D. Mich. 2000) (holding that ICCTApreempts state blocked crossing statute); Wisconsin Central Ltd. v. Marshfield, 99-C-0636-S, Memorandum and Order (E.D. Wis. February 10, 2000) (holding that ICCTA preempts City's efforts to condemn property used in rail transportation). As explained below, ICCT A similarly preempts Dubuque's attempts to regulate train speed. The rCCTA, which became law on January 1, 1996, abolished the Interstate Commerce Commission and replaced it with the Surface Transportation Board ("STB"). The ICCT A also amended and recodified the Interstate Commerce Act ("ICA"), 49 u. S. C. S 10101 et ~., the federal statute pursuant to which railroads have been and continue to be regulated. 10 Even before the ICCT A was enacted, it had long been recognized that regulation of railroad operations and facilities was properly the function of the federal government and not the states. As the Ninth Circuit stated in City of Auburn v. United States, 154 F.3d 1025, 1029 (9th Cir. 1998), cert. denied. 119 S. Ct. 2367 (1999): Congress and the courts long have recognized a need to regulate railroad operations at the federal level. Congress' authority under the Commerce Clause to regulate railroads is well-established, [citations omitted], and the Supreme Court repeatedly has recognized the preclusive effect of federal legislation in this area. One of the principal purposes of Congress in enacting the ICCT A was generally to reduce the regulation of railroads and specifically to eliminate the few areas where states had regulatory authority over railroad operations.' See CSX Transp.. Inc. v. Georgia Public Service Comm.. 944 F. Supp. 1573, 1583 (N.D. Ga. 1996); .H.R. No, 104-311, 104th Congress, 1st Sess. 82-83 (1995), reprinted in 1995 u.S.C.C.AN. 793, 807-808. To achieve that purpose, Congress granted to the STB exclusive jurisdiction over rail transportation and, as part of that grant, - enacted a broad preemption provision. Thus, as amended by the ICCTA, 49 U.S.C. 9 10501(b) provides: The jurisdiction of the Board over - (1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and (2) the construction, acqulSltlon, operation, abandonment, or discontinuance of spur, industrial, team, s\vitching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State, .- is exclusive. Except as othef\vise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law. 11 As will be shown below, Section 10501(b) expressly preempts the City's authority to regulate train speed. In addition, because the federal government occupies the field with respect to transportation by rail carriers, the ICCT A also preempts state and/or municipal attempts to regulate train speed pursuant to the doctrine of field preemption. Finally, because Congress' intent in enacting ICCT A was to free railroads from state regulation, attempts by a state and/or municipality to regulate train speed are in conflict with Congressional intent, and are thus preempted pursuant to the doctrine of conflict preemption. 49 D.S.C. 9 10501(b) expressly preempts state and municipal attempts to regulate train speed. Where, as here, Congress has enacted an express preemption provision, the scope of matters intended to be preempted by that -provision is determined by looking primarily at the language of the preemption provision and the statutory framework surrounding it. Medtronic. Inc. v. Lohr, 518 U.S. 470, 116 S. Ct. 2240, 2250-51 (1996). When these factors are examined with respect to the ICCT A, it is clear that Section 1050 1 (b) preempts state and local attempts to regulate train speed. Turning first to the language of Section 10501(b), Congress clearly stated that it intended to preempt state "regulation of rail transportation." This language is extremely broad. Indeed, as one court has stated, "It is difficult to imagine a broader statement of Congress' intent to preempt state regulatory authority over railroad operations." CSX Transp.. Inc., 944 F. Supp. at 1581. See also Burlington Northern Santa Fe Corp. v. Anderson, 959 F. Supp. 1288, 1295 (D. Mont. 1997) (The language of "[t]he Act reserves no area of regulation for the individual states"); Georgia Public Servo Comm. v. CSX Transp.. Inc., 484 S.E.2d 799, 801 (Ga. App. 1997) ("This express delineation of the breadth of the law's preemptive reach is 'clear and manifest. '''). 12 The promulgation and approval of a train speed ordinance is "regulation of rail transportation" and is thus expressly preempted. While the ICCT A does not define "regulation," it is certainly a commonly used term. To "regulate" means "to fix, establish or control" or "to direct by rule or restriction. ,,3 Establishing a speed limit is regulation. This conclusion is buttressed by looking at the statutory framework of the ICCT A. In enacting the ICCT A with its broad preemption provision, Congress granted to the STB exclusive jurisdiction over "transportation by rail carriers." 49 V.S.C. 9 10501(b)(1). Congress broadly defined "transportation" to include a "locomotive, car, vehicle. . . or equipment of arty kind related to the movement of passengers or property, or both, by rail. . . and services related to that movement." 49 U.S.C. 9 10102(9). As a consequence, the -STB has exclusive jurisdiction over the movement by rail of locomotives, cars, vehicles or equipment. That exclusive jurisdiction precludes a state agency or a local government from attempting to assert jurisdiction over such movements. Also, in the ICCTA Congress provided that the remedies available under the ICCTA with respect to, inter alia, the "transportation by rail carriers" were to be exclusive. 49 U.S.C. 9 10501(b). In other words, the only remedies available with respect to rail transportation, including train speed, are those available under the ICCT A. The STB' s jurisdiction over transportation by rail carriers is exclusive. Congress has expressed its intent that all regulation of rail carriers should be done by the federal agency uniquely qualified to address these matters, the STB, not individual states or municipalities. In addition to expressly preempting state and local attempts to regulate train speed, ICCT A also preempts such attempts via the doctrine of field preemption. Field preemption occurs where Congress' regulation of a field is so pervasive that an intent to occupy 34 Black's Law Dictionary (5th Ed.) 13 Marshfield at 12. If states and municipalities have the ability to regulate the speed of trains, then railroads are potentially subject to regulation by all municipalities in which their tracks or property are located, thereby frustrating Congress' purpose to deregulate the railroad industry. Thus, local attempts to regulate train speed are preempted by ICCT A pursuant to the doctrine of conflict preemption. While IMRL is unaware of any court which has directly addressed the issue of whether ICCT A preempts state and municipal attempts to regulate railroad speed via a speed ordinance, the court's reasoning in CSX Transp'. Inc. v. Plymouth, _ F. Supp.2d _, 2000 WL 520672 (E.D. Mich. 2000), which held that a state statute limiting the amount of time a train can block a crossing was preempted by ICCT A,. is also applicable to state and municipal attempts to regulate train speed via a: speed ordinance. In holding that ICCT A preempts the state statute, the court in Plymouth reasoned that the state statute results in economic regulation of the railroad because compliance with the statute would cause the railroad to incur significant expenses. Id. at * 15-17. The Court concluded that state economic regulation was preempted. Id. Similarly, llvfRL would incur significant expenses if it had to comply with local ordinances such as City Ordinance 39-1, and thus, speed ordinances are preempted. Slower trains result in longer travel times; which in turn results in higher labor costs. Additionally, reducing speed causes additional wear and tear on the track and equipment and results in higher fuel consumption, which creates serious economic issues in these times of ever-increasing fuel prices. Woodward Aff at ~ 14. Compliance with local ordinances also puts at risk ThfRL's ability to furnish rail services to customers in a timely manner as well as threatens its obligations to connect with other carriers. Id.. In addition, IMRL has incurred substantial expenses in upgrading and maintaining its track so that it can operate at higher speeds. For example, ThfRL has spent almost two million dollars just in Dubuque upgrading its track from Class I to Class III. If local regulation of train speed is allowed, these capital improvements would have been wasted. Woodward Aff at ~ 15. As 15 eXplained in Plymouth, requiring a railroad to undergo substantial expenditures or depriving a railroad of the benefit of its capital improvements is the sort of economic regulation that ICCT A has preempted. Id. at * 16-17. Accordingly, the Department should not approve City Ordinance No. 39-1. B. City Ordinance 39-1 Violates the Commerce Clause of the United States Constitution City Ordinance 39-1 should not be approved because it violates the Commerce Clause of the United States Constitution. Section 8) Article 1 of the United States Constitution provides) in pertinent part) that Congress shall have the power "[t]o regulate commerce with foreign Nations) and among the several States) and with the Indian tribes.>> While state and local governments may regulate matters of local' concern that incidentally affect interstate commerce without running afoul of the commerce clause) state and local governments are prohibited from passing laws which substantially affect the free flow of interstate commerce. Southern Pac. Transp. v. St. Charles Parrish Police Jury) 569 F. Supp. 1174) 1l79,(E.D. La. 1983). In Pike v. Bruce Church. Inc.) 397 U.S. 137 (1970)) the Supreme Court set forth the test to determine the validity of a state regulation affecting interstate commerce: Where the statute regulates even-handedly to effectuate a legitimate local public interest) and its affects on interstate commerce are only incidental) it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. . . If a legitimate purpose is found) then the question becomes one of degree and the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and whether it could be promoted as well with lesser impact on interstate commerce. Id. at 142. As previously explained) local regulation of train speed places a burden on interstate commerce in that it increases the cost of interstate commerce) it interferes with the carriers' obligation to furnish rail services to customers, it puts at risk schedules and obligations 16 to connect with other carriers, and it causes higher fuel, labor, and maintenance costs. Southern Pac. Transp. Co. v. S1. Charles Parish Policy Jury, 569 F. Supp. 1174, 1177 (E.D. La. 1984); Woodward Aff. at ~ 14. In contrast, in most cases, and here, there is little, if any, local interest that is promoted by municipal regulation of train speed. As previously explained, and as other cases make clear, local regulation of train speed increases the risks of derailments and grade crossings accidents, thereby actually increasing the risks to the public. Because local regulation of train speed substantially interferes with interstate commerce, and provides little if any local benefit, the burden local speed ordinances place on interstate commerce is unconstitutional. See. Southern Pac. Transp. v. St. Charles Parish Police Jury. 569 F. Supp. 1174 (E.D. La. 1983); Ohio v. Schwartz, 435 N.E.2d 689 (Ohio Ct. App.. 1980). C. The factors Set forth in Iowa Administrative Code 761-800.15(4) Favor Disapproval of City Ordinance 39-1. 1. Traffic density and speed Given the traffic density and speed in the area in which IMRL operates in- Dubuque, City Ordinance 39-1 is not justified. IMRL operates six trains daily through Dubuque. Woodward Aff. at ~ 3. IMRL operates through an industrial area along the Mississippi River with a relatively low level of motor vehicle traffic in the area. W~odward Aff. at ~ 4. Throughout most of Dubuque, IMRL already operates at a maximum speed of25 m.p.h. Id. at , ~~ 5-7. There are only two crossings in Dubuque at which IMRL operates up to a maximum speed of 40 m.p.h. Id. at ~ 7. IMRL's transportation officers use radar to check compliance with its timetable speed and the speed limits set forth in the federal regulations. Id. at ~ 12. Given that INIRL is already operating at 25 m.p.h. through most of Dubuque and that there is minimal traffic density throughout the area in which IMRL operates in excess of 25 m.p.h., City Ordinance 39-1 is unnecessary regulation. 17 2. Accident Frequency IMRL has had no grade crossing accidents along its main line route in Dubuque, and thus the accident history along IMRL's route does not support approval of City Ordinance 39-1. Woodward Aff at ~ 8. 3. Causes of Accidents The only crossing accident that Th1RL has had in Dubuque involved a train traveling a mere 5 m.p.h. on an industrial lead track. Woodward Aff at ~ 8. A municipal speed limit of25 m.p.h. would not liave prevented that accident. 4. Obstructions to Visibility There are no unusual visibility probl.ems at any of the crossings over which IMRL operates in Dubuque. Woodward A.ff at ~ 8. Rather, the crossings in Dubuque, are typical of grade crossings throughout the state, over many of which IMRL operates at higher speeds. Id.. Thus, there is nothing unique about the crossings in Dubuque which would warrant a local speed restriction. 5. Traffic Controls at Crossin~s The traffic controls at the crossings in Dubuque are adequate warning devices. The warning devices at the crossings on Th1RL's main line are set forth in the following chart: Street Protection Seventh Street Gates and Flashers Ninth Street Gates and Flashers Eleventh Street Gates and Flashers Twelfth Street Flashers Fourteenth Street Flashers Fifteenth Street Flashers Sixteenth Street Flashers 18 Hawthorne Street Lincoln Avenue Flashers Crossbucks Woodward AfI at ~~ 6-7. The warning devices at the crossing on CC&P's track on which IMRL operates are flashers and gates. Id. at ~ 5. The adequacy of these warning devices is further supported by the fact that IMRL has had no grade crossing accidents on its main route in Dubuque. 6. Population Density The population density in the area over which IMRL operates does not support a local speed ordinance. As previously explained, IMRL operates through an industrial area along the Mississippi River on the west side of Dubuque. Woodward Aff. at ~ 4. IMRL does not operate through any residential or highly populated areas. Id. Thus, the population density does not support Dubuque's attempted regulation ofIMRL's train speed. 7. Resultin~ Burden on the Rail Transportation System As previously explained in this position paper, local train ordinances have several adverse effects on railroad operations. For instance, slowing a train for local restrictions causes additional wear and tear on the track and rail equipment. This results in higher maintenance and repair costs. Additionally, slowing the train before entering an area restricted by a speed ordinance and accelerating upon leaving the area results in higher fuel costs. Local speed restrictions also cause longer travel times, which in turn increase labor costs, and put at risk the ability to connect with other carriers and to serve customers. Finally, local speed restrictions deprive a railroad from the benefit of its capital improvements. Woodward Aff. at ~~ 13-15. While the City may argue that the effect of its ordinance on IMRL is minimal, particularly in the light of the fact that IMRL already operates at 25 m.p.h. through most of Dubuque, this misses the point. Allowing Dubuque to regulate train speed in an area with no 19 main line grade crossing accident history, no unusual obstructions to visibility, low population density, low traffic levels, and adequate warning devices not only opens the door for other municipalities to attempt to regulate train speed, but almost encourages them to do so. Such patchwork regulation would have a devastating effect on Th1RL's operation and interstate commerce. 8. Resultin2: Benefit to Residents of the Political Subdivision Because Th1RL already operates at a maximum speed of 25 m.p.h. through most of Dubuque, there is little, if any, benefit to approving City Ordinance 39-1. With respect to the two crossings over which Th1RL operates at a maximum speed of 40 m.p.h., approving the Ordinance would actually harm the commu.nity in that it would result in crossings being blocked for longer periods oftime with no corresponding increase in safety. IV. Conclusion Dubuque City Ordinance 39-1 and the statutory approval process are preempted by the Federal Railway Safety Act and the Interstate Commerce Commission Termination Act. Moreover, the ordinance, if approved would place an excessive burden on interstate conunerce in violation of the Commerce Clause of the United States Constitution. Because of these conflicts with federal law, the Department of Transportation should not approve City Ordinance 39-1. Even if the Department decides this matter on the merits, the factors set forth in Iowa Administrative Code 761-806.15(4) clearly favor disapproval of the ordinance. Accordingly, the Department of Transportation should not approve Dubuque City Ordinance 39-1. Dated: May 17, 2000. James D. Helenhouse Fletcher & Sippel LLC Two Prudential Plaza, Suite 3125 180 N~ Stetson Avenue Chicago, II... 60601-6721 Telephone: 312-540-9450 Walter Orze, Esq. I & M Rail Link, LLC P.O. Box 8182 Missoula, MT 59807 . Telephone: 406-523-13 56 20 CERTIFICA TE OF SERVICE The undersigned attorney states that he caused a copy of I & 1\t1 Rail Link, LLC's Position Paper in Opposition To Dubuque City Ordinance No. 39-1 and Affidavit of Scott F. Woodard to be served upon: Modal Transportation Division Office of Rail Transportation Iowa Department of Transportation 800 Lincoln Way Ames, IA 60010 and James L. Gibson, Esq. Iowa Department of Transportation 800 Lincoln Way Ames, IA 60010 by depositing copies of the same in the United States First Class Mail, postage prepaid, located at 180 North Stetson Avenue, Chicago, IL 60601 before the hour of5:00 p.m., this 17th day of May, 2000. James D. Helenhouse ~.. 8t?rYYc~n R~E,~:r!E1]o~!;lt of Transpo'hf2!I9sQ ",*"'J Fax: 515-239-1975 May 12, 2000 Chicago., Central and Pacific Railread Cempany c/o. C T Cerporatien System 2222 Grand Avenue Des Meines, Iewa 50312 Burlingten Nerthern Santa Fe Railread Cempany c/o. C T Cerperatien System 2222 Grand Avenue Des Meines, Iewa 50312 Dear C T Cerporatien: RE: Decket No.. RR-RO-00-1, Request fer Appreval ef Train Speed Ordinance, City ef Dubuque, Iewa. On March 17,2000, the City efDubuque, Iewa, pursuant to. Iowa Code Section 327F.31 submitted a request fer Iowa Department efTransportation approval ef City Ordinance No. 39-1 (cepy attached) regulating the speed of trains passing through the city of Dubuque, Iowa. In the precess ef reaching a decision on this matter the Department is required to. notify the affected railroad(s). In accerdance with Iowa Administrative Code 761-800.15(3) the City of Dubuque and the affected railreads shall have thirty (30) days in which to. submit position papers to the Department. Please be advised that pesition papers, if any, sheuld be filed with the Rail Transpertation Office, Iewa Department ofTranspertation, on or before thirty (30) days after your receipt of this letter. This letter will serve as official notice in this matter. PLEASE TAKE NOTICE TO THE ABOVE AND GOVER.J.'l YOURSELF ACCORDINGL Y. ", Sincerely, iA".uU ! Ji~ James L. Gibson Rail Regulation and Operations Office of Rail Transportation cc: Michael C. Van Milligan, City Manager Tom Jackson, Iowa Department of Transportation Charles W. Webster General Counsel . US 'CJ\J Canadian National/Illinois Central 455 North Cityfront Plaza Drive Chicago. Illinois 60611.5504 Telephone: (312) 755-7663 Fax: (312) 755-7669 Internet: charles.webster@cn.ca VIA FAX AND FIRST CLASS MAIL June 9, 2000 RECEIVED JUN 1 5 2000 RAIL TRANSPORTATION Mr. James 1. Gibson Rail Regulation & Operations Office of Rail Transportation Iowa Department of Transportation 800 Lincoln Way . Ames, Iowa 50010. Re: Docket No. RR-RO-OO-l,City of Dubuque's Request for Approval of its Train Speed Ordinance Dear Mr. Gibson: Enclosed please find the position paper of the Chicago, Central & Pacific Railroad d/b/a Canadian NationallIllinois Central Railroad. If you have any questions or remarks, please give me a call. Very truly yours, ~J!v tdJ~. CharlesW. Webster IJ IN THE MATTER OF REQUEST FOR AFPROV AL OF TRAIN SPEED ORDINAL"\J"CE, CITY OF DUBUQUE, IOWA RE: DOCKET NO. RR-RO-OO-l POSITION PAPER OF CHICAGO. CENTRAL & PACIFIC RAILROAD In this proceeding the City of Dubuque, Iowa has requested that the Iowa Department of Transportation (IDOT) grant carte blanche "approval" of a 1976 city train speed ordinance which purports to limit train speed for passenger trains and freight trains to 30 mph and 25 mph over e\'ery railroad grade crossing throughout the city. The request should be denied. FACTUAL BACKGROUND Within the city limits of Dubuque, the Chicago, Central & Pacific Railroad (CCP) has 8 miles of track with 22 public and 1 private crossing. Of the public crossings, 7 have active warning devices and 15 have crossbucks. No two crossings are identical but each crossing has essentially the same characteristics as crossings in urban areas throughout the state. Pursuant to Federal Railroad Administration (FRA) regulations, 49 C.F.R. 9213.9, CCP trackage throughout the City of Dubuque is now designated as Class 2 trackage although it may be upgraded. CCP currently operates throughout the City of Dubuque at no greater than 25 mph pursuant to the FRA regulations and CCP's timetable. . THE FEDERAL RAILROAD SAFETY ACT OF 1970 First enacted in 1970, the Federal Railroad Safety Act of 1970 (FRS A) was designed "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents," 49 U.S.C. 9 20101. In order to ensure nationally uniform rail safety laws, FRSA contains an express provision preempting state laws once the Secretary of Transportation, through the FRA, has issued a regulation "covering the subject matter ofthe state regulation." 49 U.S.c. 9 20106. (Exhibit A.) This preemption provision has repeatedly been held to preempt local train speed ordinances such as the 1976 Dubuque ordinance. Chesaoeake & Ohio Rv. Co. v. Citv of Bridgman, 669 F.Supp. 823 (W.D. Mich. 1987); CSX Transp. Inc. v. City ofTullahoma. Tenn., 705 F.Supp. 385 (E.D. Tenn 1988); City of Covington. KY v. Chesaoeake & Ohio Ry., 708 F.Supp. 806 (E.D. KY 1989); and Wright bv and through Wright v. Illinois Central R. Co., 868 F.Supp. 183 (S.D. Miss. 1994). As noted in Consolidated Rail Corp. v. Smith, 664 F.Supp. 1228, 1238 (N.D. Ind. 1987), municipal regulation of speed is so greatly at odds with the congressional purpose of uniformity as to need no further argument. As a result of FRS A, Dubuque's ordinance has been invalid since it was enacted and the city's request that IDOT now "approve" the ordinance will not resurrect the ordinance from the grave nor does IDOT have any authority to breathe life into the invalid ordinance. FRSA COVERS THE SUBJECT MATTER OF TRAIN SPEED OVER GR<\DE CROSSINGS IN DUBUOUE. IO\V A There is no doubt that 49 C.F.R. S 213.9 (Exhibit B) covers the subject matter of train speed throughout the state ofIowa, including the City of Dubuque, and Dubuque's ordinance is therefore preempted unless the narrow exception set forth in 49 C.F.R. S 20106 is met. That exception permits a state to adopt a more stringent law or regulation only upon a showing that each of the following requirements are met: 1. The law or regulation is necessary to eliminate an essentially local safety hazard; 2. The law or regulation is not incompatible with a law, regulation, or order of the United States Government; and 3. The law or regulation does not unreasonably burden interstate commerce. However, as a threshold matter, Dubuque's city ordinance fails to even qualify for consideration under the exception set forth above as it is not a proposed state law or regulation, but instead is merely a city ordinance which IDOT is without authority to approve under FRSA. Donelon v. New Orleans Terminal Com?anv, 474F.2d 1108 (5th Cir. 1973) cert denied 414 U.S. 855 (1973); CSX Transp., Inc. v. City ofPlvrnouth, Michigan, 86 F.3d 626 6th Cir. 1996). Additionally, Dubuque has not even set forth a prima facie case to bring itself within FRSA's narrow exception, and cannot do so, mandating that its request be denied, DUBUOUE CANNOT MEET FRSA'S NARROW EXCEPTION TO FEDERAL PREEMPTION The first of the three prongs of FRSA's narrow exception which must be overcome (assuming that the Dubuque ordinance is not barred on.its face because it is not a state law) is the requirement that the city demonstrate that the state law is necessary to eliminate or reduce an essentially local safety hazard. Neither Dubuque's ordinance, nor its request, indicates the 1976 ordinance is necessary to eliminate or reduce an essentially local safety hazard. In fact, the ordinance addresses all grade crossings en masse without distinguishing between crossings, nor identifying any peculiar hazards at each crossing that are not normally encountered at urban crossings throughout the state. (The ordinance also does not distinguish between public and private crossings over which neither the dty nor the state has no power to regulate train speed.) Case law interpreting the first prong of 49 U.S. C. S 20 I 06 has made clear that general safety concerns such as apparently contemplated by Dubuque's citywide ordinance are not sufficient to meet this requirement. In rejecting Plaintiffs local hazard exception argument in CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993), the U.S. Supreme Court made clear that 2 general state law requirements such as the duty not to operate a train at excessive speeds does not fall within the "local safety hazard" prong of 49 U.S.c. S 20106. Specifically, the Court noted that the federal speed requirements "should be understood as covering the subject matter of train speed with respect to conditions, including the conditions posed by grade crossings." rd. at 675. Following Easterwood, numerous courts have likewise concluded that state law claims which attempt to impose additional regulations on train speed (i.e., that the train should have operated at a slower speed given the conditions at a grade crossing) are preempted. As noted in a recent Iowa case, Steva v. Soo Line Railroad Co., 117 F.3d 1423 (8th Cir. 1997) (unpublished - Exhibit C), conditions such as traffic volume, the lack of an active warning device, the grade and angle of the crossing and surrounding vegetation do not constitute local safety hazards as: These conditions can commonly be found at other crossings, however, and can adequately be addressed within uniform, national standards. See also, Armstrongv. Atchison, Topeka & SantaFeRy. Co., 844F.Supp. 1152 (W.D. Tex. 1994). Additionally, buildings and factories near the crossing do not constitute a local safety hazard, Bowman v. Norfolk & Southern Rv. Co., 832 F.Supp. 1014 D.S.C. 1993) affd 66 F.3d 315 (4th Cir. 1995). In fact, a local safety hazard must be a specific aberrational factor that is not continually present and is not capable of being addressed by uniform standards. O'Bannon v. Union Pacific R.R. Co., 960 F.Supp. 1411 (W.D. Mo. 1997) affd 169 F.3d 1088 (8th Cir. 1999); Herriman \'. ConraiL.lnc., 883 F.Supp. 303 (N.D. Ind. 1995). Dubuque's request for en masse approval of its citywide ordinance does not and cannot meet the requirements of the local safety hazard prong of 49 U.S.c. S 20106. DUBUQUE'S CITY QRDINA1~CE IS INCOMPATIBLE \VITH 49 C.F.R. ~ 213.9 The second prong of the three part test for permitting state regulation of train speed is that the state law requirement not be incompatible with federal.law. Ho\vever, 23 C.F.R. S 213.9 regulates train speed throughout the state of Iowa, including towns and municipalities and Dubuque's city ordinance is incompatible and in conflict with federal law and cannot stand. Citv of Covington, KY v. Chesapeake & Ohio Ry., 708 F.Supp. 806 (E.D. KY 1989). DUBUQUE'S CITY ORDINANCE WOULD UNDULY BURDEN INTERSTATE COMMERCE Dubuque's citywide ordinance would unduly burden interstate commerce. A permanent en masse speed restriction throughout the City of Dubuque unduly restricts the movement ofCCP's interstate train movements not only in Dubuque but throughout the entire CCP system as CCP's train 3 movements are time sensitive depending on prompt connections at interchange and connection points throughout its system. If the City of Dubuque can resurrect invalid train speed ordinances merely by seeking en masse approval of old city ordinances, every town or municipality throughout the United States could similarly impose such speed restrictions thereby completely negating the "national uniformity required by FRSA." As noted in Herriman v. Conrail. Inc., 883 F.Supp. 303 (N.D. Ind. 1995), such requirements constitute a "hodgepodge of safety regulations" that Congress sought to avoid when it enacted FRSA which would create an "undue burden on interstate commerce. " IDOT IS \VITHOUT AUTHORITY TO APPROVE THE CITY'S REOUEST Section 761-800.15 of the Iowa Administrative Code has been redered invalid by virtue of the enactment of FRSA. Under FRS A, laws regulating railroad train speed shall be "nationally uniform." Section 761 - 800.15 of the Iowa Administrative Code was obviously promulgated without consideration of the requirements of FRS A. Following the enactment of FRS A, only states, not political subdivisions, can regulate train speed through FRSA's narrow three prong exception. Donolon, Id. Additionally, in determining whether a local safety hazard exists, the only relevant considerations are aberrational factors that ar:e-not continually present at the crossing which are not capable of being addressed by nationally uniform standards. Steva, Id.; O'Bannon, Id. However, the decisional factors set forth in Section 800.15 set forth considerations which are clearly not factors which are unique to Dubuque or which are not present at urban areas throughout the country. Armstrong, Id. Thus, Section 761 - 800.15 of the Iowa Administrative Code is invalid and IDOT is without authority to "approve" Dubuque's train speed ordinance. 4 CONCLUSION The City of Dubuque's request for mOT "approval" of its 1976 train speed ordinance must be denied and mOT is without authority under FRSA to approve the city's request. 5 EXHIBIT A 49 U.S.c. & 20106 - National Uniformity of Regulation Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety when the law, regulation, or order 1. is necessary to eliminate or reduce an essentially. local safety hazard; 2. is not compatible with a law, regulation, or order of the United States Government; and 3. does not unreasonably burden interstate commerce. 6 EXHIBIT B 49 F.R.A. 9 213.9 - Classes of track: operating speed limits. (a) Except as provided in paragraphs (b) and (c) of this section and SS 213.57(b),213.59(a), 213.11(1), and 213. 137(b) and (c), the following maximum allowable operating speeds apply: Over track that meets all of the requirements prescribed in this part for --- Class 1 track ..................................... Class 2 track ..................................... Class 3 ,track ..................................... Class 4 track ..................................... Class 5 track ..................................... Class 6 track ..................................... [in miles per hour] The maximum allowable operating speed for freight trains IS --- 10 25 40 60 80 110 15 .30 60 80 90 110 7 The maximum allowable operating speed for passenger trains is --- L.R. VOIGTS JAMES B. WEST EDGAR F. HANSELL W. DON BRIlTIN, JR. R. CRAlG SHIVES DON MUYSKENS ROGER L. FERRIS LA IVRENCE E. MYERS KEmi E. LUOfTEL GERALDJ.NEWBROUGH ROBERT A. VANORSDEL RICHARD J. SAPP G.R. NEUMANN RUSSELL E. SOiRAGE CARLTON T. KING GREGORY P. PAGE RANDALLG.HO~NN JAY EATON BUR..\;S MOSSMAN June 14,2000 NYEMASTER, GOODE, VOIGTS, WEST, HANSELL & O'BRIEN A PROFESSIONAL CORPORATION ATIORNEYS AND COUNSELORS AT LAW PHYLLIS E. PEARSON BRADFORD L AUSTIN SARA J. SERSlAND HAYWARD L. DRAPER JAMES E. GRITZNER MICHAEL W. TIiRALL MARK C. DICKINSON GREGORY B. WILCOX JOHN F. LORENTZEN ROD KUBAT STEVENJ.ROY FRANK B. MARlY JAMES C. WINE BRUCE W. BAKER THOMAS W. FOLEY STEVEN H. LYTLE TERRY C. HANCOCK ANTIiONY A. LONGNECKER JOSEPH A. QUINN WADE H. SCHUT MARK D. AL)ETS G. THOMAS SULUV AN lOAN FLETCHER THOMAS H. WALTON WILLARD L BOYD m JEFFREY W. COURTER HALUE E. 5TILL-<:ARIS DAVID W. BENSON BRIAN J. HUMKE DEBORAH S. KRAUTH PAULAS.D~D COREEN K. BEZDICEK JOHN B. 11JFFNELL )ILL M. STEVENSON ANGEL A. WEST KATHRYN A. OVERBERG ANGELA L. WATSON IENNIFER L. VERGIUI Via Facsimile and U.S. Mail Mr. James L. Gibson Rail Regulation and Operations Office of Rail Transportation Iowa pepartment of Transportation 800 Lincoln Way Ames, IA 50010 KERI K. FARRELL-KOLB DEBRA L. DALTON JOHN T. a.E1'<'OENIN A."IY L. VANDUYN NEAL K. WESTIN STEPHA.'IIE L. MARETT 700 WAlNUT, SuTTE 1600 DES MOINES, low A 50309-3899 (515) 283-3100 1416 BUCKEYE A VENUE, SUITE 200 AMES, IOWA 50010-8070 (515) 233-3000 FACSIMILE (515) 283-8045 OF COUNSEL SAMUEL G. o'BRIEN JOHN J. MCLAUGHLIN DREW R. mLOTSON FRANK B. COMFORT LUTHER L. HILL, JR. BARRY J. NADLER L.W. "BILL" ROSEBRDOK WRITER'S DIRECT DIAL NUMBER (515)283-3189 MWT@NYEMASTER.COM RAY NYEMASTER (1914-1995) REPL y To: DES MOINES Re: Docket No. RR-RO-OO-l, Request for Approval of Train Speed Ordinance, City of Dubuque, Iowa Dear Mr. Gibson: I have enclosed the Position Paper of the Burlington Northern and Santa Fe Railway COP.1pany with regard to the above referenced matter. Please do not hesitate to. contact me if you have any questions. MWT /jn Ene. Very truly YOl}{s, /) .') fN;;&~ / MichaeJ'W Th:a;,' / . IOWADEPART.MENT OF TRANSPORTATION In the Matter of Request for Approval of Train Speed Ordinance, City of Dubuque, Iowa ) Docket No. RR-RO-OO-l ) ) POSITION PAPER OF THE ) BURLINGTON NORTHERN AND ) SANTA FE RAILWAY COMPANY The Burlington Northern and Santa Fe Railway Company ("BNSF") submits the following position paper on the request of the City of Dubuque for approval of Dubuque City Ordinance No. 39-1 pursuant to Iowa Administrative Code 761-800.15(3) . INTRODUCTION The Federal Railway Safety Act, 49 ~.S.c. S 20101, et seq. ("FRSA"), was enacted by Congress in 1970 lito promote safety in every area of railway operations and reduce railroad- related accidents and incidents. II 49 U. S. C. S 20101. Congress intended "laws, regulations, and orders related to railroad safety. . . be nationally uniform to the extent practicable, II 49 U.S. C. S 20106. Pursuant to this authority, the Federal Railroad Administration ("FRA") has adopted regulations governing the speed of trains. 49 C.F.R. S 21'3.9. The federal speed limits apply to and govern the speed of trains within the Dubuque city limits. In 1976, the City of Dubuque adopted its own ordinance purporting t.o restrict the speed of passenger and freight trains within the city limits. City Ordinance 39-1 provides: No passenger train shall be operated over and upon the grade crossings in the city at a speed of greater than thirty (30) miles per hour, nor any freight train at a speed greater than twenty-five (25) miles per hour. Twenty-four years after it was enacted, the City seeks approval of this 1976 city ordinance. The Iowa Department of Transportation ("IDOT") is without authority to approve the City's request. The Dubuque city ordinance, as well as the procedures for approval of the ordinance of Iowa Code S 327Fo31 (1999), are preempted by federal law. The City has failed to establish that it faIls within the narrow exception to preemption set forth in the FRSA. The City's ordinance places an undue burden on interstate commerce in violation of the Commerce Clause of the United States Constitution. Even were the procedures and ordinance not preempted by federal law, the C;ity has failed to establish that the factors set forth in Iowa Code 761-800015(4) necessitate approval of the ordinance. FACTS BNSF is an interstate rail carrier. BNSF does not own any track within the city limits of Dubuque. BNSF may from time to time op'erate trains on track of other railroads within the city limits of Dubuque. ARGUMENT BNSF adopts the arguments of I&M Rail Link, LLC and the Chicago, Central & Pacific Railroad in the position papers those railroads have submitted in this matter. CONCLUSION The Burlington Northern and Santa Fe Railway Company respectfully requests that the City of Dubuque's request for approval of City Ordinance 39-1 be denied. Dated: ...}U.Nf.. tl{ ],000 . Michael W. rail NYEMASTER, GOODE, VO TS, WEST, HANSELL & O'BRIEN, PoCo 700 Walnut Street, Suite 1600 Des Moines, IA 50309-3899 Telephone: (515) 283-3189 Fax: (515) 283-8045 A TTORNEYS FOR THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMP ANY 2 t:rrtt. 81~~~n ~e~~w'no~pt of Transpo'hf2t!9sQ ~~ Fax: 515-239-1975 May 12, 2000 Chicago, Central and Pacific Railroad Company c/o C T Corporation System 2222 Grand Avenue Des Moines, Iowa 50312 Burlington Northern Santa Fe Railroad Company c/o C T Corporation System 2222 Grand Avenue Des Moines, Iowa 50312 Dear C T Corporation: RE: Docket No. RR-RO-00-1, Request for Approval of Train Speed Ordinance, City of Dubuque, Iowa. On March 17,2000, the City of Dubuque, Iowa, pursuant to Iowa Code Section 327F.31 submitted a request for Iowa Department of Transportation approval of City Ordinance No. 39-1 (copy attached) regulating the speed of trains passing through the city of Dubuque, Iowa. In the process of reaching a decision on this matter the Department is required to notify the affected railroad(s). In accordance with Iowa Administrative Code 761-800.15(3) the City of Dubuque and the affected railroads shall have thirty (30) days in which to submit position papers to the Department. Please be advised that position papers, if any, should be filed with the Rail Transportation Office, Iowa Department of Transportation, on or before thirty (30) days after your receipt of this letter. This letter will serve as official notice in this matter. PLEASE TAKE NOTICE TO THE ABOVE AND GOVER1~ YOURSELF ACCORDINGLY. Sincerely, t::b~~~ Rail Regulation and Operations Office of Rail Transportation cc: Michael C. Van Milligan, City Manager Tom Jackson, Iowa Department of Transportation r> f'J .r.--\ I . I '. Sec. 39-1. Speed restrictions. No passenger train shall be operated over and Upon the grade crossings in the city at a speed of greater than thirty (30) miles per hour, nor any freight train at a speed greater than twenty-five (25) miles per hour. (Code 1976, ~ 32-2) Sec. 39-2. Unlawful deposits. No debris or substances of any kind shall be deposited or permitted to be deposited Upon any street where railroad tracks are located and where cars are placed Ul be loaded or unloaded either by abutting owners or occupants of property or other persons. (Code 1976, ~ 32-3) Sec. 39-3. Maintenance of crossings, rights- Of-way. (a) Notice to repair. Whenever the council or manager shall consider repairs necessary Upon street, avenue or alley crossings or rights-of-way occupied by the railroad company operating within the city, the council or manager shall notify such company to make the required repairs, which no- tice may be served upon or mailed to any officer of the company and shall state the time and place when and where such repairs shall be made and prescribe the materials with which such repairs shall be constructed. (b) Performance of work by city upon company's failure to make repairs after notice. All repairs to railroad crossings or rights-of-way ordered made by the council or manager shall be fully performed without delay at the expense of the company so notified. However, should repairs be ordered and not made by any company the councilor manager shall proceed to have such repairs made. (c) Collection of costs of repairs made by city. The expense of repairs made by the city pursuant to paragraph (b) of this section shall be charged to the company and collected, if necessary, by suit of any court of competent jurisdiction. (d) lrf anner of repairs; materials; supervision. The manner in which the repairs provided for in paragraph (a) of this section shall be made and 2477 C [1'( CFD fN.:.lACE RA1I.ROADS t 39-1 the materials to be used shall be designated by the manager and the work shall be performed under the supervision of the manager and the en- gJ.neer. (e) Proration of expenses between railroads. Whenever repairs are ordered Ul be made, pur- suant to this section, at any crossing which is USed by more than one railroad, each railroad sha1l bear such proportion of the expense thereof as the amount of space occupied by such railroad bears to the whole amount of repairs ordered. The man- ager shall determine the amount of repairs which each road shall make and the manager's decision shall be fInal. (f) Effect of section as to previous grants. Wher- ever grants to railroad companies, made previous to August 2, 1920, prescribing the manner in which repairs at railroad crossings shall be made are in conflict with this section, the same are hereby repealed and the provisions of this section are intended to SUpersede the same. (Code 1976, ~ 324) Sec. 39-4. Use of certain track as team track restricted. 'hack No.3 located upon Jackson Street in the city a.."1d extending from Sixth Street to Eleventh Street and owned and constrUcted by the TIlinois Central Railroad Company shall not be wed as a "team track" for the loading or unloading of rail- road cars thereon; provided, however, that should a request be made Upon any railroad company by the owner or oo:upant of abutting property to place a car to be loaded or unloaded on said track oppo- site or in front of such property, then and in that event cars may be loaded or unloaded Upon such track, but the same shall be so loaded or unloaded only in front of or opposite the abutting property whose owner or OCcupant has made the request; provided, further, that, should any person other than abutting owner or OCcupant desire the priv- ilege of loading or unloading cars upon such track, such person shall first procure the consent of the owners or occupants of abutting property on both sides of the streets where it is desired to load or unload such car, and if such consent is obtained such car may be loaded or unloaded by such par- Engineering Division 50 West 13th Street Dubuque, Iowa 52001-486-1 (319) 589-4270 (319) 589-4149 FAX THEC~ DUBaetuE 5t-'f~~ CC~[P1f May 9, 2000 Mr. James L. Gibson Rail Regulation & Operations Office of Rail Transportation Iowa Department of Transportation 800 Lincoln Way Ames, IA 50010 RE: Docket No. RR-RO-00-1, Request for Approval & Train Speed Ordinances, City of Dubuque, Iowa Dear Mr. Gibson: On September 13, 1999, the City of Dubuque requested that the Iowa Department of Transportation approve City Ordinance No. 39-1 regulating train speeds through the City, a copy of which is attached. This Ordinance was passed in 1976. The City's Ordinance limited freight trains to 25 miles per hour through the City, The City is concerned about the notification of increased train speeds issued by the I&M Rail Link on September 7, 1996. In its press release, I&M indicated that they intended to begin running trains at speeds up to 40 miles per hour through Dubuque, a possible increase in 1 5 miles per hour. The City is concerned with the safety of its at-grade crossings with this increase in speeds, According to the September 15, 1999, lOOT report of at-grade rail crossings in Dubuque, the Predicted Accident (PA) Rates for all the crossings through Dubuque range only from a high of 0.0484 to a low of 0.0002. The City of Dubuque does not want to see this safety level compromised by allowing faster trains. Service People Integrity Responsibility Innovation Teamwork Mr. James L. Gibson Page 2 May 9, 2000 The City Council, City Manager, and City staff have reviewed several calls, particularly from residents along the northerly section of the I&M tracks who are concerned for their safety, given the close proximity of their homes to the tracks. They are also concerned about additional noise, and the greater potential of a derailment, possibly involving hazardous chemicals. Some of these letters are attached. The City of Dubuque feels very strongly that the freight trains should continue to be limited to 25 miles per hour, as has been the case since at least 1976, and that City Ordinance 39-1 be approved by the Iowa Department of Transportation. Your assistance in keeping these at-grade rail crossings as safe as possible would be appreciated. Should you have any questions, you may reach me at 319-589-4270. Sincerely, J1~J!~ Michael A. Koch Public Works Director MAK/vjd Via Facsimile Transmission cc: Michael C. Van Milligen, City Manager Barry Lindahl, Corporation Counsel Bill Schlickman, Engineering A ttachs. -., -........- I 1- (c~f>lf - <:f!/ld1~ THECmOF C~ DUB~E Engineering Division 50 West 13th Street Dubuque, Iowa 52001486-1 (319) 5894270 (319) 58941-19 FAX 5J.r-7~~;'4.: September 13, 1999 :r:~dI Mr. Richard E. Kautz, P.E. Development Engineer Iowa Department of Transportation East Central Iowa Transportation Center 430 Sixteenth Avenue SW Po Box 3150 Cedar Rapids, IA 52406-3150 :" RE: Train Speed Limits Dear Dick: It has come to the City of Dubuque's attention that Section 39-1 of the City of Dubuque Code of Ordinances limiting train speeds through the City may require Iowa Department of Transportation appro'val. The City Ordinance {Section 39-1} prohibits train speeds greater than 30 mph for passenger trains and 25 mph for freight trains. The City has recently been notified by I & M Rail Link, in a letter dated September 7, 1999, a copy of which is attached, may begin running trains through the City of Dubuque at 40 mph as early as September 10, 1999. Section 27F.31 of the Code of Iowa states that local ordinances regulating train speeds are subject to the approval of the Department of Transportation. As of this writing, the City can find no verification that the City's Ordinance was ever submitted or approved by the Department. The City of Dubuque is hereby submitting a copy of Section 39-1 of the City's Code of Ordinance and requesting that the ordinance be approved under the provisions of the Code of Iowa, Section 27F.31. Please advise if you need further information regarding the City's request at this time. Sincerely, 'l;!dKd Michael A. Koch Public Works Director Attach. cc: Michael C. Van Milligen, City Manager ~rvice People Integrity Responsibility Innovation Teamwork r\~ .n r---\ I . '. . Sec. 39-1. Speed restrictions. No passenger train shall be operated over and upon the grade crossings in the city at a speed of greater than thirty (30) miles per hour, nor any freight train at a speed greater than twenty.five (25) miles per hour. (Code 1976, ~ 32.2) Sec. 39-2. Unlawful deposits. No debris or substances of any kind shall be deposited or permitted to be deposited Upon any street where railroad tracks are located and where cars are placed to be loaded or unloaded either by abutting owners or occupants of property or other persons. (Code 1976, ~ 32-3) Sec. 39-3. Maintenance of crossings, ri~hts- Of-way. (a) Notice to repair. Whenever the councilor manager shall consider repairs necessary Upon street, avenue or alley crossings or rights.of-way occupied by the railroad company operating within the city, the councilor manager shall notify such company to make the required repairs, which no- tice may be served Upon or mailed to any officer of the company and shall state the time and place when and where such repairs shall be made and prescribe the materials with :which such repairs shall be constructed. (b) Per(ormance o( work by city Upon company's (ailure to make repairs after notice. All repairs to railroad crossings or rights-of-way ordered made by the councilor manager shall be fully performed without delay at the expense of the company so notified. However, should repairs be ordered and not made by any company the councilor manager shall proceed to have such repairs made. (c) Collection o( cost3 o( repairs made by city. The expense of repairs made by the city pursuant to paragraph (b) of this section shall be charged to the company and collected, if necessary, by suit of any court of competent jurisdiction. Cd) Manner o( repairs; materials; superuision. The manner in which the repairs provided for in paragraph (a) of this section shall be made and 2477 ......, ......1-......1..' ",-. .\.,.: RAILROADS f 39-4 the materials to be used shall be designated by the manager and the work shall be performed under the supervision of the manager and the en- gineer. (e) Proration of expenses between railroa.ds. Whenever repairs are ordered to be made, pur. suant to this section, at any crossing which is used by more than one railroad, each railroad shall bear such proportion of the expense thereof as the amount of space occupied by such railroad bears to the whole amount of repairs ordered. The man- ager shall determine the amount of repairs which each road shall make and the manager's decision shall be final. CD Effect o( section as to preuious grants. Wher. ever grants to railroad companies, made previous to August 2, 1920, prescribing the manner in which repairs at railroad crossings shall be made are in conflict with this section, the same are hereby repealed and the provisions of this section are intended to supersede the same. (Code 1976, ~ 32-4) Sec. 39-4. Use of certain track as team track restricted. Track No.3 located Upon Jackson Street in the city and extending from Sixth Street to Eleventh Street and owned and constructed by the TIlinois Central Railroad Company shall not be used as a "team track" for the loading or unloading of rail- road cars tbereon; provided, however, that should a request be made upon any railroad company by the owner or occupant of abutting property to place a car to be loaded or unloaded on said track oppo- site or in front of such property, then and in that event cars may be loaded or unloaded Upon such track, but the same shall be SO loaded or unloaded only in front of or opposite the abutting property whose owner or occupant has made the request; provided, further, that, should any person other than abutting owner or occupant desire the priv- ilege of loading or unloading cars Upon such track, such person shall first procure the consent of the owners or occupants of abutting property on both sides of the streets where it is desired to load or unload such car, and if such consent is obtained such car may be loaded or unloaded by such par. -~ \(\\, e , u L../ \~ - j ~ \....- \ O\sr-\ Trainmast~r I &M Rail Link i\larquetu, Iowa 52153 i\lonica Meissner 1902 Garfield A venue Dubuque, Iowa 5200 I Dear Sir or Madam: This letter is in reference to the 40-mph train speed within city limits, past a r~sidencial ar~a and through crossings without signal lights or gates. This is not a very good id~a; in fact, this is very short sighted. Behind our house, at the bottom of a steep bank, with industrial buildings locat~d on th~ side opposite the steep bank, lie the I&M Rail Link tracks. The. tracks run through land that we Own with the railroad having a Right of Way agreement. As of yet, I have not researched what liberties the Right of Way agr~~menc gives the railroad. But I wonder does it give the railroad the freedom to travel as fast as they want without regard to safety? Does it give the railroad th~ right to travel through residential areas carrying hazardous substances that may endanger our lives in case of a leak or an accident? The faster the crain, the greater [he risk of an accident, and the greater the noise. For these reasons, safety and noise, I'm r~qu~sting no increase in the speed of trains through our town. ' You can reach me by mail at my home address above; or call me at (319) 532-230 I. I look forward to your swift attention to this matter. Sincerely, "--1h~ ~~ Monica Meissner Cc: Mayor Terry Duggan City Manager Mike Van Milligan -~._, r.~ ~ ~~~ ~4~ flJ~ r~ R.-\.IL LniX D-G. ,~ ~/1&UItLK September 7, 1999 Telegraph Herald 801 Bluff Street Dubuque, lA 52001 RE: Press release 5'B'7 lfl..,.'1 '4. LAI~ .....uc lQl0 EA~ 1OM~~~y f'O.>.O 0AV1~. ,owA '~7.~:l 131" :J,.o.L7600 131 QI '4.4-~ rAX The I & M Rail Link is upgrading their track and Signal equipment through Dubuque. I & M Rail Link Northern Division Superintendent, Steve Norton said that speeds could be Increased as soon as September 10th. Track speeds are governed by the condition of the track and equipment. The upgrades will enable the I & M to run trains at speeds up to 40 MPH through Dubuque. I & M Rail Link's maximum track speed is currently 20MPH through Dubuque. Todd Law who is both an Operation 'Lifesaver presenter and I & M 's Chief of Police. warns the public to Look, Listen and Uve! Several rail grade crossings in Dubuque will be affected to include the Lincoln Ave and Hawthorne crossings. Yours truly, r-:f-L/~ Todd Law IMRL ChIef of Police cc: Ken Koff Steve Norton (tcu)SlL- ON Kerth BeckIe Mark Milewsky ? L....~~ . . ~;: " I lJ-' cP ,.,.,.. ~---V' ? c..-c> .. , '.....--'- . ~~ A \A.I~...h;"gC>On Co.-npsny NoV. ?f ~ /J~~ k: J- ;t.JU~ 7l;: ~ ~ . cr ~I - / . 1+-fL:;I~ ~-:tJ+~ff"1- ~~~. _ ~T-~~~ _~~ J- d. ~I ~ ~_-r 5l~~ 1~ fi"- "- ~ ~ +-~J ~.~~~~ "11 rctt; t"---.n., -'--'- e--.~Q. -r ry tV;- /tJ~-Wvt.-J~/;;70-. 0. J{. ..i-J" ~ ~ .y CJ ~ .j CUh ~~J-d~a4 ~ I~V~ r---d-~ #<> J ~ h, :'~' . " il ~~-:r r<- 1L- l1~~~fk1 ~+ ~-<T~~4J.. ~~ '@. ~ l~.~ .~......~ .. l ....:t.--- 2 1>~h From the desk of... JOH~ J \\1N~ER From the desk of... /~ J"" c::::p t1 ~7~ OO~@~~W~ffi1 ,."'\} .i~.' 1 :') ~f'.,,-'."*\ .,~. _ '- .'J.::::j fi..ANi'I1NG SU?\LI.CE'S