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Blumenthal call Metro-North fines 'a mockery'

Published 1:37 pm, Wednesday, June 4, 2014
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The nation's top railroad regulator drew withering criticism Tuesday for his agency's record of safety enforcement against Metro-North Railroad.

The Federal Railroad Administration's use of its power to fine railroads for safety violations "is a mockery of justice," said Sen. Richard Blumenthal with some heat in an interview after tangling with FRA Administrator Joseph Szabo during a Senate Commerce, Science and Transportation subcommittee hearing.

No example upset Blumenthal, D-Conn., more than the case of Robert Luden, a Metro-North foreman and 27-year employee who was killed when a trainee controller apparently put the section of track Luden was working on back in service too soon.

At the time of the worker's death, Blumenthal said, the railroad "failed to have in place minimal safety technology used routinely by other railroads."

"That seems to define egregious and aggravated," Blumenthal said, asserting the FRA could have fined Metro-North $105,000.

Instead, a Hearst Connecticut Media investigation revealed the fatality drew only a $5,000 fine.

Blumenthal told Szabo during the hearing that recent news accounts, "most notably in the Connecticut Post," analyzing FRA's enforcement of safety problems at Metro-North showed that "penalties for the catastrophic events ... were plainly inadequate."

Szabo said, "Fines are just one of the tools we have in our toolbox."

"It's one tool, but it's a pre-eminent tool," Blumenthal retorted, "and when you fail to use it, it leaves you weak."

Szabo said the agency has levied more in fines in the past five years than in any previous five-year period.

"Can you give me examples where the maximum penalties were imposed?" Blumenthal asked. "Why was Luden's death not an egregious and aggravated violation?"

Szabo declined to answer immediately, saying he would refer answers to Blumenthal later for the record.

"We'll get you again what we believe to be the basis for our fine," he said. "We'd be happy to work with you on some technical assistance if you want to look at legislation that addresses our penalty schedule."

"If I were in your shoes," Blumenthal replied, "I'd be advocating for more authority."

Blumenthal alluded to an effort he championed with Sen. Charles Schumer, D-N.Y., that provided $185 million in fiscal year 2014 for more inspectors for the agency.

Szabo said, so far, the agency has hired 10 more people, but training them fully would take about a year. "You don't just snap your fingers and have 45 people in place," he said.

"Do you need additional enforcement resources?" Blumenthal asked.

"Sir, it's my job to ensure the safety of the industry with the resources you give me," Szabo responded.

Blumenthal pressed for an answer on whether he needed more inspectors, and after Szabo again declined to say, Blumenthal instructed him to provide an answer in writing.

Blumenthal pointed out Szabo's agency is the subject of 56 open recommendations from the National Transportation Safety Board, including 29 in which the NTSB contends the FRA has given an "unacceptable" response -- the most open recommendations of any Transportation Department entity.

"We can in fact try to improve safety every day," Szabo said. "We had fewer accidents in 2012 than we did in 2011."

He said the agency is using Deep Dive, its report on safety failings at Metro-North that led to fatalities and injuries in 2013, as a lesson to improve its work.

"We're doing good work. We need to do better. That doesn't bring back the lives of the four people who died on Metro-North," Szabo said. "I own that."

Szabo said, "I came up from the ranks. I've had my share of close calls. I think every railroader has." He added, "I've had five friends killed on duty. I've been to those funerals. I know those families. So when it comes to safety, this is very personal for me."

In response to a question about the recent Norwalk bridge failure, Szabo said, "That bridge is more than 100 years old, and that shows the problems of the Northeast Corridor." He added the corridor is "one of the best passenger rail markets in the world. But decades and decades of disinvestment have kept it from achieving its full potential."

Blumenthal asked him if Metro-North was responding correctly to the Deep Dive report the agency produced after a string of tragedies in 2013.

"They have certainly said all the right things and I'm seeing the right things," Szabo responded. "It's going to take time to play out. ... When it comes to changing safety culture it's a drawn-out process. They're cooperating with us."

After the hearing, Szabo said: "The Senator is very passionate about railroad safety, and that's to be admired. We'd like to work with him on the penalty schedule. My job is to advance safety with the tools I have today."

Blumenthal said after the hearing that he intends to try to modify the penalty statute -- but said that "the enforcement routine is so farcical that it may be more effective to increase minimum penalties rather than increasing maximums.

"What good does it to raise the maximum to $500,000 if they're going to fine the minimum $5,000?" he said.

As a former attorney general, Blumenthal said he rejected Szabo's argument that fine sizes are limited by what can be legally sustained.

"Any challenge in court to a $105,000 fine in Luden's death would be frivolous," he said. "You could justify a fine of $1 million."

david.mccumber@hearstdc.com