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Union Pacific responds to ACC's reprimand
By Carol Broeder\Arizona Range News
Union Pacific Railroad has responded to the Arizona Corporation Commission (ACC), after its crews laid new track through Central Avenue in Bowie without prior approval from the commission as required by state law.
Railroad officials have re-iterated that the construction was inadvertent.
Commissioner Kris Mayes sent a letter to Union Pacific's Government Affairs Director Chris Peterson May 21, saying that the commission had made it clear more than a month before that it wanted to review all of the projects in the state to see if Union Pacific should be required to make costly changes for safety reasons.
"Union Pacific representatives met with commission staff within two business days of realizing the construction had taken place without approval of the commission," Peterson said in a May 31 letter to Mayes.
"At that time, the railroad's director of construction apologized for what happened, offered an explanation for what occurred and outlined changes that were being implemented internally to prevent a recurrence of this mistake," he said.
"It was our intent to share this explanation with individual commissioners and answer questions about the situation, but commissioners were either unavailable or declined our offer to meet and discuss the situation."
"You ask in your letter whether Union Pacific has commenced construction on any of the remaining 42 crossings affected by the planned double-track project. We have not," Peterson continued. "It is our desire that the double-track project proceed safely and efficiently in coordination with the commission and Arizona communities affected by the addition of a second mainline."
In her May 21 letter to Peterson, Mayes called Union Pacific's decision to double track through the Bowie crossing "disturbing on several levels."
"First, the commission learned of this activity not from the railroad, but from an individual who apparently discovered the construction and reported it to our staff," she said. "The construction through the Bowie crossing also comes at a time when the commission has made it abundantly clear that we intend to closely scrutinize the double-track crossings prior to granting any approvals. As you know, commissioners have been traveling the state conducting hearings on how to make these crossings as safe as possible, and we were in the midst of scheduling an open meeting designed to gather more facts, including traffic counts related to each of the 43 crossings."
In a footnote, Mayes added that the commission has conducted town halls on the double-tracking project in Tucson, Eloy, and most recently Yuma, and will "likely schedule additional public comment sessions in other cities along the line."
The commission conducted its town hall in Willcox on Friday, March 23.
"Among the many issues that have been raised at our meetings on the double track proposal is whether Union Pacific has a duty to construct underpasses or overpasses at certain of these crossings," she said. "Now we learn that Union Pacific has built one of the crossings with no hearing, no public input, and no vote of the commission."
Mayes said in her May 21 letter that she would ask staff to investigate this matter and report back to the commission on whether Union Pacific has violated Arizona law, and "whether the company should be subject to the commencement on an Order of Show Cause proceeding for its actions."
"I have been informed that Union Pacific would like to meet with commissioners individually to explain its actions in Bowie, and to assert that it is very sorry for its transgressions," she said. "I will not be meeting with you to discuss the Bowie crossing and the potential violation of ARS 40-337 as I believe this matter warrants more than an apology and because it could potentially come before me in the form of an Order to Show Cause proceeding."
Mayes said that in the meantime, she would like to know whether Union Pacific "has commenced construction through any of the remaining 42 crossings affected by the proposed line, and to seek your assurances that UP will not engage in any activity that would violate the provisions contained in ARS 40-337 regarding railroad crossings."
In addition to Peterson's response to Mayes, Union Pacific officials sent a four-page letter to the commission, proposing a settlement in lieu of the Order to Show Cause.
"The purpose of this letter is first to offer Union Pacific's written apology to the Commission for its inadvertent double-tracking of the crossing located at Central Avenue in Bowie... without application to the Commission," said Tom Ogee, with AVP Engineering Design.
"Union Pacific had no desire or intention to test the commission's jurisdiction with respect to this crossing," he said. "Indeed, fully understanding that it will need the commission's approval to alter the other 42 public crossings involved in this phase of the Arizona portion of its double-track project, Union Pacific would never have intentionally ignored the commission's jurisdiction with respect to this one crossing. Doing so would clearly have been contrary to Union Pacific's own best interest. Instead, this serious mistake was caused by a lack of communication within Union Pacific's Engineering Department."
"Union Pacific recognizes there is no excuse for what occurred, and it accepts full responsibility for the premature alteration of the crossing," Ogee said.
The proposed settlement has four components:
€Union Pacific's apology;
€Filing a belated application with the commission as soon as possible;
€A self-imposed monetary penalty; and
€A change in Union Pacific's internal procedures to prevent a similar inadvertent occurrence.
"As to the first element, Union Pacific has apologized herein, as well as publicly in several stories carried in the news media during the week of May 21, 2007," Ogee said. "If the commission desires additional apologies, Union Pacific will provide them."
Regarding the second component, Union Pacific "intends to file, as soon as possible, a belated application with the commission for approval to install the second mainline track at Bowie," said Ogee, adding that application will concern only the Bowie crossing since the error "has already resulted in installation of the second track there."
"In that application, Union Pacific plans to present later in an open meeting with respect to the other 42 Arizona public crossings currently being progressed in this phase of the Arizona portion of its double-track project," he added.
"As to the third element, Union Pacific would propose to pay the maximum civil penalty of $2,000 per day, pursuant to ACC Regulation R14-5-116," said Ogee, proposing that the civil penalty run from May 8, the first day Union Pacific was positioned in terms of crew and supplies to build through the Bowie crossing, which would have included building across that crossing, through the date an application is submitted to the commission for the alteration, probably June 1.
"Union Pacific's violation was unintentional," he said. "However, Union Pacific recognizes that it was also serious. Union Pacific intends to demonstrate that understanding to the commission, and that it is making every reasonable attempt to do what it can to correct this unfortunate mistake."
Regarding the fourth component, Ogee said that Director of Construction David Orrell, and Union Pacific have also "instituted changes to the monthly construction meetings that will be used to ensure that this kind of occurrence will not happen again. For example, the Manager of Industry and Public Projects for Arizona will participate in all construction meetings, and will have the responsibility for advising Union Pacific's contractors and track construction crews of the status of permits and approvals for any public crossing to be altered."
Attachments included with Ogee's letter showed these changes, "which Union Pacific instituted immediately after discovering the mistaken construction at the Bowie crossing," he said.
The previous Construction Project Sheet dated May 11 shows no specific mention of crossing approval, said Ogee, adding that this has been corrected in the revised and current sheet dated May 25, showing the addition of the category of "Regulatory Authority - Crossing Modification."
"The revised status sheet also shows that regulatory authority is the responsibility of the Manager of Public Projects, and that no such authority has been obtained. The Regulatory Authority item was simply added to the bottom of the previous table," he said. "That does not reflect in any way the importance Union Pacific places on obtaining authority from the commission, nor any priority in which each task must be completed before any construction can proceed. Each task will be examined at the monthly construction meetings until they all showed 100-percent, reflecting all necessary elements for construction to proceed have been satisfied."
Ogee's letter gave the following account of the inadvertent construction the week of May 13:
Union Pacific's Engineering Department is organized into two separate departments for new construction, Design and Construction. The design department is responsible for obtaining necessary environmental and crossing permits, while the construction department oversees the actual work.
A contractor is hired by the construction department to perform the grading and drainage work, and is also responsible for obtaining permission for road closures, including providing signage and detours as necessary.
Union Pacific's own employees install rail and associated track and crossing structures and signals.
"Union Pacific's construction crew had been working between Bowie and San Simon, installing a second mainline track in an area that has no public crossings. When the construction crew came to the Bowie crossing, Union Pacific's contractor obtained the closure permit from Cochise County to close Central Avenue temporarily so the second track could be installed through the crossing."
The contractor had obtained permission for the closure permit on May 11, and had also contacted fire and ambulance services that same day to notify them of the temporary closure of Central Avenue.
"After making those arrangements, the construction department and contractor believed all necessary approvals and permits had been obtained, not realizing that no approval had been sought from the commission to alter the crossing itself."
The necessary concrete ties to be placed on the crossing were not available until May 14, when Union Pacific's construction workers proceeded to install the second mainline track through the Bowie crossing.
Orrell conducts monthly constructions calls with design and construction personnel to discuss any possible issues concerning construction, including crossing construction.
"During these calls over the last several months, the erroneous assumption was made that all permits had been obtained when, in fact only the environmental permit issues were resolved, not approval from ACC to change the crossing."
"This is the first such incident that has occurred in Mr. Orrell's eight-year tenure as Union Pacific's Director of Construction. He and Union Pacific are committed to making sure it will also be the last."
On the afternoon of May 18, Orell "discovered for the first time that Union Pacific had installed a second track at the Bowie crossing without commission approval."
He directed that "no trains be allowed to travel on the new track across the crossing, and that a derail be placed west of the Bowie crossing to prevent any railroad equipment from traveling on the new track across the crossing."
These measures were completed by that night.
"Both of these steps will remain in place. The gates and lights at the Bowie crossing are fully functional for the existing main line."
In 2005, Union Pacific Rail Road announced its plans to expand its Sunset Route, a 760-mile rail corridor that extends from El Paso to Los Angeles. The Sunset Route passes through or near several Arizona communities that stand to be affected by the expansion.
"This is the first border-to-border railroad project in 50 years in the state of Arizona. It's an incredibly important issue and it is incredibly important that this railroad listen to those communities and the people in those communities," Mayes said in March during the Willcox town hall.
Mayes praised Union Pacific at the time for being "very responsive" to the people of Willcox.
"I hope that you will respond to other Arizona communities the way you have responded to Willcox," said Mayes. "And we'll be here to make sure you do."
Railroad officials have re-iterated that the construction was inadvertent.
Commissioner Kris Mayes sent a letter to Union Pacific's Government Affairs Director Chris Peterson May 21, saying that the commission had made it clear more than a month before that it wanted to review all of the projects in the state to see if Union Pacific should be required to make costly changes for safety reasons.
"Union Pacific representatives met with commission staff within two business days of realizing the construction had taken place without approval of the commission," Peterson said in a May 31 letter to Mayes.
"At that time, the railroad's director of construction apologized for what happened, offered an explanation for what occurred and outlined changes that were being implemented internally to prevent a recurrence of this mistake," he said.
"It was our intent to share this explanation with individual commissioners and answer questions about the situation, but commissioners were either unavailable or declined our offer to meet and discuss the situation."
"You ask in your letter whether Union Pacific has commenced construction on any of the remaining 42 crossings affected by the planned double-track project. We have not," Peterson continued. "It is our desire that the double-track project proceed safely and efficiently in coordination with the commission and Arizona communities affected by the addition of a second mainline."
In her May 21 letter to Peterson, Mayes called Union Pacific's decision to double track through the Bowie crossing "disturbing on several levels."
"First, the commission learned of this activity not from the railroad, but from an individual who apparently discovered the construction and reported it to our staff," she said. "The construction through the Bowie crossing also comes at a time when the commission has made it abundantly clear that we intend to closely scrutinize the double-track crossings prior to granting any approvals. As you know, commissioners have been traveling the state conducting hearings on how to make these crossings as safe as possible, and we were in the midst of scheduling an open meeting designed to gather more facts, including traffic counts related to each of the 43 crossings."
In a footnote, Mayes added that the commission has conducted town halls on the double-tracking project in Tucson, Eloy, and most recently Yuma, and will "likely schedule additional public comment sessions in other cities along the line."
The commission conducted its town hall in Willcox on Friday, March 23.
"Among the many issues that have been raised at our meetings on the double track proposal is whether Union Pacific has a duty to construct underpasses or overpasses at certain of these crossings," she said. "Now we learn that Union Pacific has built one of the crossings with no hearing, no public input, and no vote of the commission."
Mayes said in her May 21 letter that she would ask staff to investigate this matter and report back to the commission on whether Union Pacific has violated Arizona law, and "whether the company should be subject to the commencement on an Order of Show Cause proceeding for its actions."
"I have been informed that Union Pacific would like to meet with commissioners individually to explain its actions in Bowie, and to assert that it is very sorry for its transgressions," she said. "I will not be meeting with you to discuss the Bowie crossing and the potential violation of ARS 40-337 as I believe this matter warrants more than an apology and because it could potentially come before me in the form of an Order to Show Cause proceeding."
Mayes said that in the meantime, she would like to know whether Union Pacific "has commenced construction through any of the remaining 42 crossings affected by the proposed line, and to seek your assurances that UP will not engage in any activity that would violate the provisions contained in ARS 40-337 regarding railroad crossings."
In addition to Peterson's response to Mayes, Union Pacific officials sent a four-page letter to the commission, proposing a settlement in lieu of the Order to Show Cause.
"The purpose of this letter is first to offer Union Pacific's written apology to the Commission for its inadvertent double-tracking of the crossing located at Central Avenue in Bowie... without application to the Commission," said Tom Ogee, with AVP Engineering Design.
"Union Pacific had no desire or intention to test the commission's jurisdiction with respect to this crossing," he said. "Indeed, fully understanding that it will need the commission's approval to alter the other 42 public crossings involved in this phase of the Arizona portion of its double-track project, Union Pacific would never have intentionally ignored the commission's jurisdiction with respect to this one crossing. Doing so would clearly have been contrary to Union Pacific's own best interest. Instead, this serious mistake was caused by a lack of communication within Union Pacific's Engineering Department."
"Union Pacific recognizes there is no excuse for what occurred, and it accepts full responsibility for the premature alteration of the crossing," Ogee said.
The proposed settlement has four components:
€Union Pacific's apology;
€Filing a belated application with the commission as soon as possible;
€A self-imposed monetary penalty; and
€A change in Union Pacific's internal procedures to prevent a similar inadvertent occurrence.
"As to the first element, Union Pacific has apologized herein, as well as publicly in several stories carried in the news media during the week of May 21, 2007," Ogee said. "If the commission desires additional apologies, Union Pacific will provide them."
Regarding the second component, Union Pacific "intends to file, as soon as possible, a belated application with the commission for approval to install the second mainline track at Bowie," said Ogee, adding that application will concern only the Bowie crossing since the error "has already resulted in installation of the second track there."
"In that application, Union Pacific plans to present later in an open meeting with respect to the other 42 Arizona public crossings currently being progressed in this phase of the Arizona portion of its double-track project," he added.
"As to the third element, Union Pacific would propose to pay the maximum civil penalty of $2,000 per day, pursuant to ACC Regulation R14-5-116," said Ogee, proposing that the civil penalty run from May 8, the first day Union Pacific was positioned in terms of crew and supplies to build through the Bowie crossing, which would have included building across that crossing, through the date an application is submitted to the commission for the alteration, probably June 1.
"Union Pacific's violation was unintentional," he said. "However, Union Pacific recognizes that it was also serious. Union Pacific intends to demonstrate that understanding to the commission, and that it is making every reasonable attempt to do what it can to correct this unfortunate mistake."
Regarding the fourth component, Ogee said that Director of Construction David Orrell, and Union Pacific have also "instituted changes to the monthly construction meetings that will be used to ensure that this kind of occurrence will not happen again. For example, the Manager of Industry and Public Projects for Arizona will participate in all construction meetings, and will have the responsibility for advising Union Pacific's contractors and track construction crews of the status of permits and approvals for any public crossing to be altered."
Attachments included with Ogee's letter showed these changes, "which Union Pacific instituted immediately after discovering the mistaken construction at the Bowie crossing," he said.
The previous Construction Project Sheet dated May 11 shows no specific mention of crossing approval, said Ogee, adding that this has been corrected in the revised and current sheet dated May 25, showing the addition of the category of "Regulatory Authority - Crossing Modification."
"The revised status sheet also shows that regulatory authority is the responsibility of the Manager of Public Projects, and that no such authority has been obtained. The Regulatory Authority item was simply added to the bottom of the previous table," he said. "That does not reflect in any way the importance Union Pacific places on obtaining authority from the commission, nor any priority in which each task must be completed before any construction can proceed. Each task will be examined at the monthly construction meetings until they all showed 100-percent, reflecting all necessary elements for construction to proceed have been satisfied."
Ogee's letter gave the following account of the inadvertent construction the week of May 13:
Union Pacific's Engineering Department is organized into two separate departments for new construction, Design and Construction. The design department is responsible for obtaining necessary environmental and crossing permits, while the construction department oversees the actual work.
A contractor is hired by the construction department to perform the grading and drainage work, and is also responsible for obtaining permission for road closures, including providing signage and detours as necessary.
Union Pacific's own employees install rail and associated track and crossing structures and signals.
"Union Pacific's construction crew had been working between Bowie and San Simon, installing a second mainline track in an area that has no public crossings. When the construction crew came to the Bowie crossing, Union Pacific's contractor obtained the closure permit from Cochise County to close Central Avenue temporarily so the second track could be installed through the crossing."
The contractor had obtained permission for the closure permit on May 11, and had also contacted fire and ambulance services that same day to notify them of the temporary closure of Central Avenue.
"After making those arrangements, the construction department and contractor believed all necessary approvals and permits had been obtained, not realizing that no approval had been sought from the commission to alter the crossing itself."
The necessary concrete ties to be placed on the crossing were not available until May 14, when Union Pacific's construction workers proceeded to install the second mainline track through the Bowie crossing.
Orrell conducts monthly constructions calls with design and construction personnel to discuss any possible issues concerning construction, including crossing construction.
"During these calls over the last several months, the erroneous assumption was made that all permits had been obtained when, in fact only the environmental permit issues were resolved, not approval from ACC to change the crossing."
"This is the first such incident that has occurred in Mr. Orrell's eight-year tenure as Union Pacific's Director of Construction. He and Union Pacific are committed to making sure it will also be the last."
On the afternoon of May 18, Orell "discovered for the first time that Union Pacific had installed a second track at the Bowie crossing without commission approval."
He directed that "no trains be allowed to travel on the new track across the crossing, and that a derail be placed west of the Bowie crossing to prevent any railroad equipment from traveling on the new track across the crossing."
These measures were completed by that night.
"Both of these steps will remain in place. The gates and lights at the Bowie crossing are fully functional for the existing main line."
In 2005, Union Pacific Rail Road announced its plans to expand its Sunset Route, a 760-mile rail corridor that extends from El Paso to Los Angeles. The Sunset Route passes through or near several Arizona communities that stand to be affected by the expansion.
"This is the first border-to-border railroad project in 50 years in the state of Arizona. It's an incredibly important issue and it is incredibly important that this railroad listen to those communities and the people in those communities," Mayes said in March during the Willcox town hall.
Mayes praised Union Pacific at the time for being "very responsive" to the people of Willcox.
"I hope that you will respond to other Arizona communities the way you have responded to Willcox," said Mayes. "And we'll be here to make sure you do."
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The following are comments from the readers. In no way do they represent the view of willcoxrangenews.com.
Rod wrote on Feb 10, 2008 10:43 AM:
My advice is to watch the UP very closely. I suspect that their plan is to derail the "Corporation's" plan at every opportunity. "