January 19, 2021
Jennie A. Granger, AICP, Deputy Secretary
Office of Multimodal Transportation
P.O Box 3643 | Harrisburg, PA 17105-3151
Dear Deputy Secretary Granger:
First, thank you for the courtesy of your January 12, 2021 response to RP3’s December 7, 2020 letter co-signed by 20 other Clean Air/Water Environmental Organizations.
Letter for Elected Officials to Sign Offering to Help Norfolk Southern Obtain Diesel Emissions Reduction Funding
We have no problem with trains generally. That is why we proposed a compromise solution seeking that our elected representatives offer to provide Norfolk Southern with geographically unrestricted state and federal diesel emissions reduction funding. This is a win/win since Pennsylvania gets more very high paying manufacturing jobs at Norfolk Southern’s Altoona Pennsylvania plant, and we all get cleaner air. It should also assist in obtaining a higher level of mitigation for the 27 communities, parks and residents most impacted by the PVCP.
Here is a sample letter for our elected representatives to sign to make an offer to help NS secure such funding.
Finding solutions to ensure that trains are cleaner and safer is especially important from a health perspective because 74% of the residents impacted by the PVCP live in Environmental Justice Areas. Recent studies confirm that the PM2.5 component of black carbon diesel locomotive pollution results in a more dire COVID outcome and also impairs brain development especially in children. See Harvard Study and Environment International Study. These two studies also help explain the greater impact of the virus on our black and brown populations— and contribute to an understanding of and a method to ameliorate structural racism. After review of applicable scientific literature related to locomotive pollution, 95 physicians and health care professionals have signed a Health Impact Assessment Request.
Letter for Elected Officials to Sign to Obtain Special Inspection Oversight
In our December 7, 2020 letter, we provided documentation and critical links supporting a request to the PUC and the FRA for special inspection oversight of Norfolk Southern’s rail bridges in Western Pennsylvania. Here is a letter making that request for our representatives to sign.
It is imperative to focus the FRA rail bridges in our area because that agency only has a budget to review and inspect 5% of the nation’s rail bridges. Without regard to whether a bridge passes a current inspection, our city, county, state and federal representatives need to take a longer-term view of the safety of rail crossings. The multitude of century-old rail bridges in Allegheny County will, in the near future, fall into the Merchant St. bridge category. This fate is ever more likely now given Norfolk Southern’s 2019 (one of its most profitable years) record reductions in force (as reported by the Washington Post), combined with the $13.7 Billion stock buyback (instead of using those funds for enhanced maintenance, new equipment and rails, and additional inspections). This makes having special inspection oversight all the more prudent and necessary.
PennDOT, the PUC and Norfolk Southern Exclude Community Voices
From a safety perspective, we completely agree with your statement that the PUC (and the Federal Rail Administration) has exclusive jurisdiction regarding rail/highway crossings and that its rulings bind Norfolk Southern, and all other levels of government. The problem here, however, is that our state agencies, our elected officials and the public are being misled, while community voices are being excluded by NS and the PUC from participating in the PUC safety proceedings and the process generally.
The comprehensive chronology outlined below illustrates that what has occurred is contrary to the spirit of “PennDOT Connects,” and with Pennsylvania’s Sunshine and Whistleblower laws. It is also intended to demonstrate how unnecessary, spiteful and wrong the treatment and process has been for community organizations.
Based on material outlined below, RP3 is asking that PennDOT intercede on the merits. In addition, it is requested that PennDOT also directly reimburse (or see that reimbursement occurs) all three community organizations for their time, costs and expenses in endeavoring to conduct interim public outreach, and to get our state regulatory and advisory agencies to do an even better job in their efforts to comply with the Environmental Rights Amendment of the Pennsylvania Constitution, and its concomitant statutory obligations and applicable regulations.
Norfolk Southern Misleads Elected Representatives and the General Public
First, Norfolk Southern sold the concept of the PVCP and the use of taxpayer monies to our representatives and the public as a temporary, intermittent alternate route through the city which would be used only in the event of a blockage of double-stack traffic on the Mon Line. NS Spokesperson David Pidgeon —quoted in this Post-Gazette article stated:
“What that landslide [ on the South Side] showed is [that] a choke point can be created when that is the only route through the city that can take double stack cars… Now we’re going to be able to create an alternate route for that flow of goods to continue when something like that happens. Having the ability to adjust and be nimble is needed by the railroad…”
We now know that because Norfolk Southern gains a 45 minute to 3-hour transit time savings/train, double-stack traffic will be continuous and rail volume will go from 20-30 trains/day to maximum track capacity of 70-80 trains/day. That will result in idling of lower priority trains. CMU analysts have determined that every hour of idling equals one pollution related death/year. (We have prior evidence of Norfolk Southern trains idling continuously for 4 days and nights on one of our four tracks in Allegheny Commons.) The Manchester community is especially impacted since their adjacent tracks spread in number from 4 to eleven.
In response to RP3’s WPXI interview, NS Spokesperson Jonathan Glass stated that, "Norfolk Southern is committed to an open and transparent process as we progress with the railroad's proposal to increase rail clearance heights...” The process has been quite the opposite of that promise.
PennDOT Plays a Part in Excluding Community Voices
PennDOT shares some blame given your agency’s own avowed commitment to transparency and community engagement as part of “PennDOT Connects”. In the last 2 1/2 years (through the entire PVCP Grant period) there has been only one public [“placard”] meeting on June 26, 2018. That same evening, Mayoral Chief of Staff Dan Gilman emailed that:
“Norfolk Southern employees were not properly identified, that residents left feeling more confused and more disenfranchised… and that Norfolk Southern needed to go back and meet with all of the impacted communities in a more intimate setting to dig into details and to work through a community-based plan. This will take numerous meetings, completing a proper SWOT analysis, and working to address the critical concerns of the community.”
By letter dated August 16, 2018 Senator Fontana told PennDOT Secretary Leslie Richards that the placard meeting
“reeked of the railroad simply checking off a to-do list item...[and] Based on ...the railroads lack of transparency to this point, I am requesting the railroads initial application for funding be reevaluated and that no state funds are provided for this project until the true community process takes place.”
By letter dated September 6, 2018 you responded on behalf of Secretary Richards stating that your Multimodal Transportation Department
“would be providing oversight on the environmental process and public involvement/outreach activities.… We will be working with Norfolk Southern to develop a robust public involvement plan to ensure that all stakeholders have an opportunity to be heard, be informed, and provide input into the process.”
During the late fall of 2019, after pressure by our elected representatives, PennDOT finally hired Justice and Sustainability Assoc. to conduct public outreach meetings in all 27 impacted communities. JSA’s Director included RP3 as a member of its Steering Committee because RP3 had already conducted 27 of its own community outreach meetings. In late December 2019, JSA conducted its first public outreach presentation on the PVCP at a municipal meeting of East End Mayors, Council representatives and first responders. Although a NS representative was present, he indicated he preferred not to answer any questions from the audience. As a result, RP3 responded to their queries. Norfolk Southern openly expressed disapproval. JSA was terminated within the next week by PennDOT based in part on NS’s objections.
RP3 submits that one “placard” meeting and a “NS website [allegedly] devoted to public outreach” simply does not constitute the type of “robust Public Involvement Plan” that you promised. The NS website has been a feature since June, 2018 -and it has been manipulated.
It is true that NS did post one public outreach video concerning the need to entirely replace—at taxpayer expense, its Merchant St. rail bridge. In that video, they said the following:
“After a routine inspection in 2018, the Merchant Street Bridge was determined to exhibit extensive steel corrosion within the cross girders and columns comprising the intermediate pier as well as throughout the riveted trough system...and potentially could cause injuries or property damage.... These conditions are considered safety concerns and may pose a safety hazard to the railroad and the traveling public...and a potential liability to other transportation entities (e.g., City of Pittsburgh, Allegheny County) if not addressed.”
Shortly thereafter on November 9, 2020, WPXI aired an extra-long news special during which Investigative Reporter Rick Earle reviewed the following:
- multiple National Safety Transportation Board Norfolk Southern Derailment Reports finding that Norfolk Southern used old worn rails and wheels, and either was not inspecting properly, or was disregarding the results of those inspections; and
- volumes of images supplied by RP3 of Norfolk Southern rail bridges that were so severely corroded that they were missing bolts and had totally unconnected cross ties.
The news report includes interviews with Rail Pollution Protection Pittsburgh, and follow up interviews with the author of the 2015 Report that names the Ft. Wayne Bridge as a “Deadly Crossing” because of severe corrosion, and then Norfolk Southern’s Manager of Media Relations. Norfolk Southern’s Media spokesperson says all of its bridges are safe and all of the corrosion is “cosmetic.” Immediately thereafter NS pulled its Merchant St video claiming similar metal corrosion resulted in extreme public safety hazards ostensibly because it contradicted the Corporate PR “cosmetic” storyline.
WPXI also published the response of Association of American Railroads — which was that there is no cause for concern because inspections are submitted to the Federal Rail Administration. However, the NSTB accident report of the 2006 Beaver River Bridge 83-car NS derailment at New Brighton caused damages of $5.8 million. The National Transportation Safety Board determined that the probable cause of the derailment was Norfolk Southern‘s “inadequate rail inspection and maintenance program that resulted in a rail fracture from an undetected internal defect. Contributing to the accident were the Federal Railroad Administration’s inadequate oversight of the internal rail inspection process and its insufficient requirements for internal rail inspection.” Notwithstanding the National Transportation Safety Board’s recommendations, nothing appears to have changed in this regard. Read the accident report here.
Norfolk Southern Excludes Community Voices
In the fall of 2018 and early 2019, NS twice promised RP3-by phone and in person, that NS would hold three town hall format meetings across the city in early spring - no later than May of 2019. Thereafter:
- RP3 publicly reported the discovery of the Merchant Street Bridge sinkhole. RP3 maintained that NS was either not conducting inspections properly, or was disregarding the results of their inspections. (This turned out to be the basis for the FRA’s actual finding of “serious operations oversights” in connection with the 2018 derailment on the South Side.
- RP3 Notified the head of the Public Utility Commission and Governor Wolf that Norfolk Southern admitted discovering that it had installed 5 million defective [and difficult to trace] rail ties into its system;
- By letter dated 2/11/19 Senator Fontana asked the PUC to investigate the sinkhole and Norfolk Southern’s safety inspection practices.
RP3 shared the above at our meeting with Edgewood community members in the presence of TV, radio news and print media—including PG reporter Kevin Flowers. In response, Norfolk Southern:
- reneged on its agreement to schedule public Townhall meetings;
- instructed the railroads attorneys to object to and exclude public safety watchdog RP3, Manchester Citizens Corp, and the Northside Leadership Conference from intervening in Public Utility Commission safety proceedings. Notably, up to that point Norfolk Southern did not object at all to intervention by the Conference; and
- announced to the Post-Gazette in an interview given the same night as RP3’s Edgewood meeting, that it would not deal with any community organizations, only the City and PennDOT thereby completely reversing course as reported by Kevin Flowers at the PG.
Given the timing and statements made to the press, one can only conclude that Norfolk Southern’s motive has been to punish, retaliate and to seek reprisal.
Norfolk Southern and the PUC Exclude Community Voices
Because Norfolk Southern objected to RP3 Intervening in PUC proceedings, Democratic Caucus members State Representatives Jake Wheatley, Ed Gainey, Sara Innamorato, Summer Lee, and Adam Ravenstahl, whose constituents live along the proposed modified route filed the following letter of support for RP3 stating that, "We believe that the concerns raised by RP3, and the residents whom they represent, are unique and must be given an opportunity to be heard during these proceedings.”
Notwithstanding that letter and PennDOT District 11’s email assurance dated 2/25/19 to Senator Fontana’s Chief of Staff that PennDOT was “committed to working with Norfolk Southern and local groups to address safety and environmental concerns...”, NS has conservatively, I’m guessing spent over $200,000 in legal fees fighting RP3’s participation, along with the two other community groups, in these safety meetings. The legal filings have been prodigious all around.
Moreover, the PUC has engaged in its own procedural chicanery. RP3 filed its first Motion to Intervene on February 7, 2019. RP3 subsequently filed over a dozen other Petitions and Motions with supporting briefs- including a Request for Expedited Processing. On April 10, 2019, the PUC waived its own thirty-day period for consideration of these filings, and indefinitely extended its time to respond. No subsequent final responses on the merits were ever issued. Instead, the PUC and NS opposed any Appeal to Commonwealth Court by the Northside Leadership Conference on the grounds that those appeals were premature because the community groups did not wait for the PUC’s response.
The Court determined that the PUC did not have the authority to extend the time to file an appeal and that NS and the PUC’s position was contrary to the Pennsylvania Rules of Appellate Procedure. As of August 22, 2019, the Court ordered “All proceedings in this matter before the Commission are stayed pending resolution of this appeal.” The appeals to Intervene by all three community groups have still not been finally resolved. RP3, the Northside Leadership Conference and Manchester CC remain engaged in a very expensive mediation process to this day.
PennDOT/Norfolk Southern/PA SHPO Consulting Party Historic Impact Meetings
In our December 7, 2020 letter to you we asked our elected representatives to hold a hearing to investigate why, on October 20, 2020 the Pennsylvania State Historic Preservation Office (PA SHPO) reversed its earlier April 30, 2020 determination that NS must report on Environmental Impacts on the historic Allegheny Commons in connection with the Merchant St Bridge. The October reversal was based on the claim that the Merchant St Bridge was not a component on the PVCP— and that reconstruction of that bridge would have no adverse impact on the historic Commons.
On the assertion that the Merchant St Bridge is not a component of the PVCP
there are, however, the following real-world facts which amply demonstrate that Merchant St Bridge is a part of the Pittsburgh Vertical Clearance Project and that its replacement has a significant impact on the historic Commons and the Environment — all of which are well known to both PennDOT and Norfolk Southern, and which have never yet been considered by PA SHPO:
- The March 19, 2018 "Norfolk Southern Railroad Pittsburgh Vertical Clearance NEPA Scoping Meeting Notes" includes Merchant Street Bridge as part of the PVCP-see page 4;
- The May 29, 2018 "Norfolk Southern Vertical Clearance Project Public Open House Invitation" lists the Merchant Street Bridge as part of the PVCP;
- The "Information Gathering and Project Overview Open House Pittsburgh Vertical Clearance Projects Comment Form" for the June 26, 2018 “Open House” placard meeting specifically lists the Merchant Street Bridge as one of “the nine project locations...” on page 2;
- The "Norfolk Southern Railway Company Pittsburgh Vertical Clearance Projects - Project Purpose and Need Statements" dated August, 2018 lists the Merchant Street Bridge as part of the Project on page 12;
- In response to Senator Wayne Fontana’s inquiry about PVCP financing, PennDOT provided "Project Description and Cost Share" showing a Merchant Street Bridge replacement cost of $7,800,000- using the same funding source as the other PVCP bridges. See page 2;
- The Justice & Sustainability Associates (JSA) Consultant (hired by PennDOT) slide entitled the "Pittsburgh Vertical Clearance Project Fact Sheet" includes the Merchant Street Bridge and lists as “Four Main Areas of Concern: Noise Pollution, Vibration, and Running Double Stack Trains Next to Oil Trains.
- The JMT Consultant’s Report (hired by PennDOT) entitled "Norfolk Southern Vertical Clearance Project Clearance Improvement Alternatives Evaluation" includes the Merchant Street Bridge. The “Effects Analysis Issues Score” grid for that bridge- under the design currently under consideration, shows that the Merchant St Bridge replacement resulted in a 3 red (or a high) for its impact in twelve categories. It also received scores of 2 yellow (medium) impact on the Historic District, Air Quality, Noise Pollution and Socioeconomic Environmental categories.
The fact that the PA SHPO’s reversed its earlier environmental impact decision must also be attributed to PennDOT’s disregard of its own paid consultants JMT Impact Report (see #7 above), and its use of Baker International as its agent for the past 14 months to conduct these Historic Consulting Party Impact Meetings.
Baker International is Norfolk Southern’s long time paid engineering consultant. Through April, 2020 PA SHPO’s representative was Cheryl Nagle who understood Baker’s role. Last October, PA SHPO substituted Barbara Frederick who indicated that she was now overseeing the process and was reversing the April 30 determination. After a number of RP3 appeals, PA SHPO’s December 14, 2020 letter indicates that:
“We understand PennDOT has determined the Merchant Street Bridge undertaking is a stand-alone project meant to address safety concerns specific to the Merchant Street Bridge and is not related to the Pittsburgh Vertical Clearance Project.”
Ms. Frederick’s cover email indicates that she was evidently basing that decision on PennDOT’s letter of December 4, 2020. That letter was NOT from PennDOT but from Baker International acting as Norfolk Southern’s Consultant. It was Norfolk Southern and Baker International Representatives who had been claiming from the first meeting in November 2019 that Merchant St Bridge was not part of the PVCP.
Based on Ms. Frederick’s statement, RP3 objected to Baker International serving a dual role which resulted in a conflict of interest. We were then told by Baker Representatives that there was no contract between Baker and PennDOT. That is not dispositive. Thereafter, RP3 asked PennDOT District 11 Director if Baker was receiving any type of remuneration from PennDOT for running the ongoing meetings for over a year. PennDOT did not respond or “connect” on that one.
What is apparent is that PA SHPO’s reversal on the Environmental impact issue can be explained by the confusion created by PennDOT, and by the conflict of interest in using NS consultant as PennDOT’s agent to run these meetings. RP3 submits the process is tainted. The issue is important because of the ongoing mediation relating to the only other PVCP component which is adjacent to Allegheny Commons— the W North Ave Bridge.
If issues relating to the W North Ave Bridge theoretically were to be resolved within the mediation process, it would also theoretically and logically remove and likely preclude stakeholders from weighing in on both the assessment of audible and atmospheric direct and indirect impacts that PVCP bridge project has on the historic Commons—and the appropriate mitigation that should result. Viewed in the context of the ongoing mediation, Norfolk Southern’s November 20 letter from Baker International (asking the PA SHPO “to confirm that Merchant Street Bridge will not result in audible and atmospheric effects to the Allegheny Commons Historic District.”) is an attempt at an “end run” around a significant issue, another bit of procedural chicanery, and an insult to the advisory role of PA SHPO and to PennDOT’s process and overall objectives.
The PVCP Grant Has Expired
PennDOT’s RTAP grant to Norfolk Southern states in Sections 5 (i) and 11 that “All Project work shall be performed by 12/31/20, unless [an extension is granted in writing.] Section 20 (a) indicates that the Grant may be terminated for non-performance or inadequate performance, or “at any time for lack of funds.”
If the Merchant St Bridge is not part of the PVCP, then NS has not even begun the Project that it was to have entirely completed last year. This is in large part because NS has spent since February, 2019 opposing the intervention of three community groups into PUC safety meetings which resulted in an injunction preventing the PUC from further processing any of NS’ pending applications. Thus, COVID was not a factor. During that same period NS and PennDOT have also failed to fulfill their public outreach obligations during the term of the PVCP grant.
RP3 respectfully submits that the public should have a voice in any time extensions to the $20M taxpayer grant which were, or might be, granted. This is especially the case since circumstances, and PennDOT's budget shortfalls, have changed dramatically with the advent of COVID. That taxpayer money might better be redeployed to remedy landslides which jeopardize the lives and property of residents throughout Western Pennsylvania.
Based on the foregoing, and the record as a whole, the sequence of events outlined above was overwhelmingly unnecessary, and is all wrong. It is incumbent on PennDOT, and our elected representatives to make it right by also ensuring that all three community organizations are made whole and that the impact on all of the affected communities is properly mitigated.
Very truly yours,
Glenn Olcerst, Esq.
In-House Counsel, Rail Pollution Protection Pittsburgh (RP3)
|Governor Tom Wolf
Office of the Governor
508 Main Capitol Building
Harrisburg, PA 17120
|Lieutenant Governor John Fetterman
|Senator Robert Casey
United States Senate
393 Russell Senate Office Building
|Senator Pat Toomey
United States Senate
248 Russell Senate Office Building
|Congressman Mike Doyle
|Congressman Conor Lamb
1224 Longworth House Office Building
Washington, DC 20515
|State Senator Wayne Fontana
|State Senator Jay Costa
|State Senator Jim Brewster
|State Representative Emily Kinkead
|State Representative Jake Wheatley
|State Representative Ed Gainey
|State Representative Summer Lee
|State Representative Sara Innamorato
|State Representative Dan Frankel
|County Executive Rich Fitzgerald
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|Mayor Bill Peduto
|Chief of Staff Dan Gillman
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|City Councilwoman Deb Gross
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|City Councilman Anthony Coghill
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|Director, DOMI, Karina Ricks
|Jeff Skalican, Deputy Director, DOMI
|Local Government and Community Relations Coordinator Hersh Merenstein
|Rep. Doyle Legislative Assistant Dylan Leazes
|Rep. Lamb District Director Donald Ryan
|PennDOT Secretary of Transportation Yassmin Gramian
PA Department of Transportation
400 North St., Fifth Floor
Harrisburg, PA 17120
|PennDOT Pittsburgh-Area District Executive Cheryl Moon-Sirianni
|Chief Development Officer, Port Authority of Allegheny County David Huffaker
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|URA Chairman Sam Williamson
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1200 Penn Ave, Pittsburgh, PA 15222