US government's requirement that US railroads install crash-avoidance technology on 23,000 locomotives, 60,000 miles of tracks likely to miss 2015 deadline because 22,000 antennae needed for system are subject to tribal review

Cindy Allen

October 21, 2013 (Bloomberg LP) – Two years probably wasn’t going to be enough time for railroads to install crash-avoidance technology on 23,000 locomotives and 60,000 miles of tracks, in the biggest rail-safety project in U.S. history.

Then they encountered the Choctaw Nation, Muscogee and Navajo.

In May, the railroads and their regulators learned 565 American Indian tribes had the right to review, one by one, whether 22,000 antennae required for the system to work might be built on sacred ground. That’s as many wireless tower applications as the U.S. Federal Communications Commission approves in two years.

“I’m just speechless,” said Grady Cothen, who retired in 2010 from the Federal Railroad Administration as the deputy associate administrator for safety standards. “I didn’t expect this issue to arise.”

The resulting backup may give railroads including Warren Buffett’s Burlington Northern Santa Fe another reason to miss the December 2015 deadline to finish a $13.2 billion project covering one-third of the U.S. rail network.

Railroads had asked Congress for a three-year extension to install the wireless system known as positive train control, citing the cost and time to develop, buy and manufacture software and hardware. Now they say they’ve fallen further behind, after spending $3 billion.

“Since May, when this issue brought all the antenna installations to a halt, there haven’t been any antennas installed in anyone’s network,” Steve Forsberg, a Burlington Northern spokesman, said in an interview. “That is jeopardizing the deadline for all the railroads, including ours.”

Railroads Stunned

Railroads started applying to the FCC this year for permits to build towers for wireless antennae. That’s when they learned each one has to be reviewed by tribes claiming oversight anywhere ancestors may have lived and died, even though 97 percent of the proposed towers are in railroad rights of ways.

“I was stunned because I knew that we had been doing construction projects, putting in new terminals, new communications equipment, new tracks, new yards for over 150 years,” said Ed Hamberger, chief executive officer of the industry’s Washington-based trade group, the Association of American Railroads.

To Alan Downer, historic preservation officer for the Navajo Nation, the tribes’ interests don’t include making sure the railroads meet their deadlines.

“The potential’s there for burials, for sites of cultural and religious significance, for possible historic sites,” he said.

‘Who Knows?’

For instance, Downer said, the old Atchison, Topeka and Santa Fe line was created in the 19th century.

“Who knows what’s out there, other than the rail line itself?” Downer said. “It may be a complete void. It would be nice to know before hand, before anything gets destroyed.”

Congress in 2008 required railroads to install positive train control after a collision between freight and commuter trains in Los Angeles left 25 dead and more than 100 injured.

Thirty-seven railroads must install the systems on routes that carry passengers and the most-hazardous materials, such as chlorine and anhydrous ammonia. Railroads could be fined tens of thousands of dollars for missing the deadline.

The technology communicates a train’s location, speed and information operators might need, such as speed restrictions and approaching signals, and can slow or automatically stop a train if its operators don’t.

Burlington Northern, owned by Buffett’s Berkshire Hathaway Inc., plans to spend $200 million this year on the technology and spent $300 million last year, Forsberg said.

Communications Breakdown

Until May, the FCC believed it was being asked to approve antenna installations, it said in a document released Sept. 27. That changed when it realized most of the wayside antennas required new poles, meaning they involved digging.

The towers are expected to be 25 feet to 65 feet (7.6 meters to 19.8 meters) tall, with foundations as much as 15 feet deep, the agency said in the document.

Senator John Thune, a South Dakota Republican, said at a hearing in September that the FCC “is reportedly so overwhelmed by the coming influx of PTC related applications that it’s advised railroads not to proceed with any applications” until a new process is devised.

“FCC staff have been hard at work streamlining the process in order to accommodate the very large number of towers railroads plan to build to implement positive train control,” Neil Grace, a spokesman, said in an e-mail.

Digging Factor

Ground disturbance can be important when considering whether a project risks altering sacred sites, former settlements or burial grounds, Ian Thompson, director of the Historic Preservation Department with the Choctaw Nation of Oklahoma, said in an interview.

“Most cultural deposits are in the top several feet of soil,” Thompson said. A project’s visual impact also plays a role, in the same may a cell tower might be considered inappropriate in front of a former U.S. president’s home, he said.

Cothen, now a rail policy consultant, helped write the positive train control rule. Even though the Senate Commerce Committee oversees both the FCC and FRA, this requirement never came up in meetings with lawmakers on the train safety rule, he said in an interview.

It shouldn’t have come as a surprise, said Bruce Milhans, spokesman for the Advisory Council on Historic Preservation, an independent federal agency that encourages historic preservation. Tribes’ rights, and the need for the FCC to consult with them, were established by the National Historic Preservation Act of 1966, he said.

Skeptical Tribes

“You need to find out what’s there before you go putting things into effect willy-nilly,” Milhans said in an interview. “Native cultural or sacred sites are in the same category as national or state parks” in terms of protection from development or destruction.

The FCC said in its Sept. 27 statement tribes and railroads may agree to consider poles in batches so one application would cover multiple sites. It said tribes may agree to exempt stretches of rail line from the review process.

Agency officials planned to meet with tribes in Tulsa, Oklahoma, this month before canceling because of the partial U.S. government shutdown that began Oct. 1.

It’s not just the railroads that are befuddled at how to fulfill the tribal consultation requirement. Officials at some of the largest tribes say they’re no more prepared for the deluge of reviews than the FCC was.

“This is all new to us -- to all the tribes in Oklahoma, in fact,” said Terry Cole, assistant manager for cultural preservation for the Muscogee (Creek) Nation, based in Okmulgee, Oklahoma.

The Choctaw, the third-largest U.S. tribe with 210,000 members, reviewed about 400 cell towers in 2012, said Thompson. Speeding the pace of approvals would burden the Choctaw’s nine- person historic review staff that includes people with skills in archeology, anthropology, ground-penetrating radar and advanced mapping, Thompson said.

Easing the way for train-control towers “will be met with skepticism,” Downer, of the Navajo, said. He paraphrased federal outreach this way: “Gee, golly, we have to do this and you guys have to figure a way to do this.”

--Editors: Bernard Kohn, Elizabeth Wasserman

To contact the reporters on this story: Angela Greiling Keane in Washington at agreilingkea@bloomberg.net; Todd Shields in Washington at tshields3@bloomberg.net

To contact the editor responsible for this story: Bernard Kohn at bkohn2@bloomberg.net

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