Many of you in our communities have come to know CURES for its all-volunteer work to address the problems posed by increased rail freight use and the practices and policies of the New York & Atlantic Railway. Our problems are not really all that new and they certainly aren’t unique to our area. Rail freight safety has come under scrutiny all across North America, in large part due to the shipment of Bakken crude oil in massive quantities. There have been too many derailments and subsequent explosions already, and a little hamlet in Quebec suffered one of the greatest accidents in railroad history, losing almost 50 lives. The usual reaction of railroads to these problems has been to delay, obfuscate, point fingers elsewhere and hide behind federal preemption. Fortunately for us, there is no Bakken crude plying the tracks in our communities and there won’t be any. At present, we have not faced such life-threatening issues although the New York & Atlantic does ship propane. The railcars used for propane are better and safer than those being used for Bakken crude, but let’s not become complacent. Each railcar of propane holds 30,000 gallons. Without proper safety rules and rigorous training, things can go wrong quickly and tragically.

For us it seems that rail freight safety has three main pillars: safety rules; training for the employees who operate and plan operations of railcars; maintenance of equipment, track and safety devices. All of these must work together and a failure of any one aspect can result in the loss of property or life. All of the railroads, big and small, say they operate with safety as the number one concern. The New York & Atlantic is no exception. When they win a safety award, they put in into a newsletter. You can read all about it. What they don’t publish are their mistakes and shortfalls. They don’t have to publish that information. They don’t tell the public much of anything. They have federal preemption. If you want to know what they’re doing to uphold each pillar of rail freight safety, you really need to somehow find out for yourself. After winning a Jake Award [the short line industry’s safety award] “Most Improved Safety Record” in 2013 for the 2012 calendar year, the New York & Atlantic Railway has been essentially shut out of any awards for two years. Winning a “Most Improved” award is nice, but what’s unsaid is how poor they may have been before they finally made improvements. And since they haven’t sustained this with continued awards, just how safe is the New York & Atlantic?

Speeding Train Hits Truck
On July 8, 2015, a New York & Atlantic Railway train struck a truck at a crossing in Maspeth. It has been conclusively demonstrated that the crossing gate mechanism did not activate in time to warn the truck driver. The train was moving too fast and did not follow the railroad’s rules by stopping before entering the crossing and ensure that crossing was clear. On July 21, 2015, FRA launched “a safety review of the New York and Atlantic Railway’s safety culture and management practices.” US Transportation Secretary Anthony Foxx said about this review, “Railroads must adhere to the strict standards of safety set by FRA, and FRA must ensure and enforce compliance in order to protect lives. This safety review aims to do just that.” This federal safety review of the New York & Atlantic Railway comes after the July 8 accident, and others.

Car’s Roof Sheared Off
On Aug. 19, 2013, a New York & Atlantic train crew moved a Plate F high boxcar into the West Yard at Fresh Pond. This boxcar was part of a 22-car train. This type of boxcar has a height of 17 feet above the top of the rails. The M subway line crosses the yard, and the subway line’s bridge clearance did not allow any Plate F cars to pass into the West Yard. The car’s roof was sheared off, and New York & Atlantic had to immediately notify the MTA of this accident as the bridge could have been compromised. The damages for this accident were reported by the FRA as $100,000. Track clearance is a fundamental concept in railroad operation. It is unknown to us how the crew’s conductor failed to follow instructions and rules. Was he experienced? Was he properly trained? Were his instructions correct? The time of this accident was 12:35 AM. Was operating at night a factor? This could have been a serious accident for riders of the M train. It would have remained a secret but for this report.

Door Falls off Car
On April 23, 2014, the New York & Atlantic had what could be termed a negligent accident at Wyandanch. A boxcar’s doors were not properly secured, and in moving past the Wyandanch station platform the door struck the platform and fell off the car. The car was a plug door boxcar, having the type of door that when properly closed is flush with the side of the car. There were no injuries, although the potential of being struck by a large steel object is truly dangerous. Prior to moving the train, two crewmen reported they had inspected both sides of the train, yet the improperly secured plug door was not seen. The accident itself was not noticed by the crew, who had to be instructed by the LIRR to stop the train and inspect for the missing door. How well do New York & Atlantic crews inspect their trains? A misaligned plug door should be readily seen. The time of the accident was 9:33 PM. Was operating at night a factor?

Riding boxcars
This year represents a dramatic turn for the worse in our opinion. New York & Atlantic’s safety problems have become so severe that they are easily seen by the public. In early March someone took a video of a New York & Atlantic train entering Fresh Pond and posted this video on YouTube. Here is the link: The screen shot (upper left) is from that link.

Riding boxcars like this is strictly prohibited. This crew seems unconcerned they will be seen even as they are riding into Fresh Pond Yard, where the railroad’s offices are located. The engineer is in the locomotive which is pushing this train and cannot see what lies on the tracks into which this train is moving. Aside from the inherent danger to which these crewmen are exposing themselves, should they become hurt and unable to communicate with the engineer, the train could strike anything or anyone on the track, or the train could derail over an improperly aligned switch. Does this practice indicate poor training and supervision? This video, dated March 2, 2015, was reported to the FRA, and they have advised that the New York & Atlantic has taken corrective measures.

Later that month however, New York & Atlantic Railway had another derailment that was as embarrassing as it was public. On March 29th, 2015 at Wyandanch, after switching cars for a freight customer off the freight siding, a loaded railcar was derailed. This car was essentially put on its side and was leaning against telephone poles carrying LIRR communication lines. The reason for this problem was outlined in the FRA report. Upon completing the switching move the conductor received permission to enter the mainline and instructed the engineer to move forwards [eastbound] to the derail protecting the east end of the siding. Instead the engineer backed up the train, pushing the loaded center beam flatcar over the derail at the west end of the siding. This accident caused delays for LIRR Ronkonkoma Branch trains, and the FRA estimated car and track damages at $442,000. The time of this accident was 11:50 PM. Was there a communication problem between crewmen? The engineer should have been aware the switching move was completed because the crew reported they did a brake test. This is a kind of mistake you might expect with inexperience or carelessness or fatigue. The New York & Atlantic issued no public statements as to the case of the derailment, despite the damage and delays to the LIRR riding public. They don’t want you to know why these things happen. What if this had been a propane car instead of a flat car?

Railroad Crossing: Why can’t the New York & Atlantic Railway get this right?
The unfortunate climax of this report is the July 8th accident at the Maspeth Avenue crossing. Before presenting that, let’s look at maintenance of grade crossings and grade crossing gates. The latter has been very troublesome for the New York & Atlantic since the LIRR ended passenger operations on the Lower Montauk. There still is no clear explanation of why this problem persists. This technology has been in use for many years. Freight railroads all around the USA maintain crossing gates. Why can’t the New York & Atlantic get this right from day one? Why does the community have to monitor this? Why does the community have to tell them something is wrong with the equipment? The issue of the 88th St crossing gate was escalated to the FRA. Correspondence made public by the New York & Atlantic Railway indicates their internal confusion. Basically, the FRA had to intervene because of New York & Atlantic’s inaction and confusion.

There is another problem that will only get worse. Two grade crossings are degraded to the point that vehicular traffic must slow down considerably. The first crossing is Maspeth Avenue which has very heavy weekday traffic of cars, buses and trucks. Saturday traffic is significant. Six railroad tracks cross Maspeth Avenue here. All must now be maintained by the New York & Atlantic Railway.

The photos (included in the Juniper Berry magazine) indicate that conditions are degrading and will continue to do so. Railroad trackage is affected by extreme cold and heat. The New York & Atlantic Railway’s own website relates their difficulties this past winter, resulting in service failures. How much attention have they paid to this responsibility, especially since the LIRR handed over complete operation of the Lower Montauk? Has anyone seen New York & Atlantic Maintenance Of Way crews working on grade crossing trackage? Cost avoidance, lack of railroad maintenance at this crossing means extra costs for local businesses — equipment damage, for example. These and other community costs have not been acknowledged. This crossing was not fixed despite reports by the community.

Going further west there is another crossing that has seen increased traffic in recent years with the opening of a Restaurant Depot on the south side of the railroad tracks. This crossing is at 43rd Street. Of course Restaurant Depot primarily serves the trade, but it is open to the public. Everything that enters this facility arrives by commercial truck, and everything that leaves does so by truck, van and private automobiles. [What’s somewhat ironic is this should be the sort of industry that might be effectively served by the New York & Atlantic Railway. It is not, and probably won’t ever be rail-served the way things are going.] The grade crossings here are also degraded and require vehicles to slow considerably. Here are two photos, again taken this spring.

How long will it be before the rubber crossing pads disintegrate, leaving deep holes that will damage passenger vehicles and small vans? Things don’t have to be this way. Scouting out this topic on the internet, one finds examples of better maintained crossings.

These photos are taken from websites of companies that manufacture grade crossing systems. Both photos depict what is termed full-depth rubber pads. There are other types of materials used for crossings such as concrete and steel reinforced rubber.

Not Maintaining Track
Here we are in the largest city in the United States, and we have to contend with a railroad that operates on a very low level. It is a railroad that has the exclusive right to move freight on the LIRR. It recently extended its original 20 year concession for another 10 years. If it wasn’t a good business for this privately owned company, one might imagine they would have exited the business. Yet, maintaining some of the basic track and safety devices that directly affect the people who live and work near the railroad or must simply cross railroad tracks for whatever reason is, according to the New York & Atlantic Railway, a burden for them! Here’s part of what James P. Nunes, Manager – Safety, Training and Systems for the New York & Atlantic Railway wrote in an email to the FRA and certain public entities on Nov. 5, 2014. “NYA will coordinate with LIRR in order to effect this change at the earliest reasonable time and at, we hope, at a reasonable cost, as the NYAR shall be shouldering the brunt of this financial burden absent public funds.” He was referring to the crossing gate problem. This is on our Facebook page. Isn’t this part of the cost of doing business? What else would they like at public expense?

An Accident Waiting to Happen… Finally Did
The predictable finally happened. On July 8, 2015, in the early morning hours, a New York & Atlantic train eastbound slammed into a northbound truck and trailer as it crossed the tracks at Maspeth Ave. The truck was struck just behind the cab, immediately caught fire and was shoved some 100 to 200 feet east of the crossing. The driver escaped with the help of the train crew and suffered minor injuries. The train crew was unharmed. In just about every case you can cite, a grade crossing accident is the fault of the motor vehicle operator, except this accident. A dashcam video of the accident demonstrated that the truck was in the crossing before crossing protection had been activated. Lights came on after being struck by the train and the gates dropped seconds after the train had already struck the truck. It has been determined that the train was travelling too fast and that the crew did not follow New York & Atlantic’s rules to prepare to stop at crossings, and ensure protection is fully activated and that the crossing is clear. A co-worker of the truck driver contends that the crossing gates do not function properly and there have been several narrow escapes.

This was yet another accident occurring at night. The condition of the pavement at the crossing could well have been a factor, requiring the truck to move slowly over the four freight tracks on the south side of this crossing. In tackling these issues with the New York & Atlantic, CURES and other groups have faced a company that seems can only dig in its heels. Perhaps the state of this company is best illuminated by what they tell us. New York & Atlantic’s James Nunes wrote an opinion in Progressive Railroader, a railroad industry trade magazine. The topic was track maintenance, and here’s a screen shot of his comment:

Basic Railroad Safety Needed
Crossing maintenance represents a basic railroad safety responsibility. Crossing protection is tried and true railroad safety technology. Yet this railroad, operating in the media capitol of the world, can’t get it right. Every once in a while they emerge and offer some information. In a recent interview with NY1 just days before the July 8th accident, New York & Atlantic President Paul Victor (photo right) spoke on camera to a reporter about community complaints concerning open railcars containing construction and demolition debris. This topic and the interview as a whole will be the subject of another report; however we wish to note one thing in this report. A screen shot of the interview shows Paul Victor is wearing a hard hat while in the parking lot at Fresh Pond Yard. Is this supposed to convey the message that the New York & Atlantic Railway operates safely, with a culture of safety that even the company President demonstrates? Perhaps when the cameras are rolling, safety takes a front seat at the New York & Atlantic Railway Theater?

At the conclusion of the new segment, the reporter relates that Paul Victor says his door is always open to the community. Openness must now be something passé for New York & Atlantic, because after the July 8th accident and subsequent revelations provided by the dash-cam video, CURES contacted Thomas A. Leopold, Chief Safety and Compliance Officer for Anacostia Rail Holdings [the parent company of the New York & Atlantic]. Mr. Leopold advised he was on vacation, knew nothing about this accident, but promised that either he or someone from the New York & Atlantic would respond by the following week. CURES also copied Mr. Leopold on a letter to the New York State Department of Transportation about the community’s health and safety concerns. There has been no answer.

People Have the Right to Know
So is there a lesson here for us? The New York & Atlantic Railway operates on a public Right of Way. The people of this state own it. They have received grants to help them operate. The people have the right to know more about the safety of their operation. When they do communicate, it’s confused and incomplete. It doesn’t pass the smell test. When someone running an inherently dangerous business, like a railroad, tells you he’s running a safe operation, you have to tell him “I’m from Missouri. Show Me!” Right now, this railroad is going to have to demonstrate its safety culture and standards to the FRA.

All of the material quoted is public information. The safety and accident records of the New York & Atlantic Railway can be found on the FRA website. We must conclude with a very special note of appreciation for the work of the FRA, specifically Les Fiorenzo [Regional Administrator – FRA Region 1] and Lou Frangello [Crossing/Trespasser Regional Mgr. FRA Region 1]. Both have responded to our calls for action. Both have communicated their perception of these problems and both have demonstrated their public service to the highest degree. They have pledged to bring New York & Atlantic Railway’s safety standards in line with the Code of Federal Regulations and are bringing all of the FRA’s disciplines to bear.

It isn’t all that often that the Transportation Secretary and the FRA Administrator tell you things aren’t what they should be, and they now have to fix it for you. The New York & Atlantic can’t turn a deaf ear anymore.