Metro safety board’s ar­rival de­layed

OVER­SIGHT PANEL MAY NOT DE­BUT TILL 2018 Doubts grow over abil­ity to over­haul tran­sit sys­tem

The Washington Post Sunday - - METRO - BY ROBERT MCCART­NEY

It will be at least fall — and more prob­a­bly next year — be­fore an over­due Metro safety over­sight body is up and run­ning, fur­ther de­lay­ing mil­lions in fed­eral tran­sit aid that agen­cies in the District, Mary­land and Vir­ginia are count­ing on.

What’s more, the three ju­ris­dic­tions’ fail­ure to meet a fed­eral dead­line for es­tab­lish­ing the Metro Safety Com­mis­sion af­ter more than a year and a half casts se­ri­ous doubt on their abil­ity to achieve the big­ger task of over­haul­ing the tran­sit agency’s gov­er­nance and fund­ing struc­ture be­fore fi­nan­cial prob­lems over­whelm it, an­a­lysts said.

“There is re­ally a lack of own­er­ship” of Metro by the three ju­ris­dic­tions, said Emeka Moneme, a former District trans­porta­tion di­rec­tor and Metro board mem­ber, who now is deputy ex­ec­u­tive di­rec­tor of the Fed­eral City Coun­cil. “The most re­cent Metro Safety Com­mis­sion process was a re­ally good ex­am­ple,” he said.

The three ju­ris­dic­tions blew a Feb. 9 dead­line to cre­ate the com­mis­sion, which will be the first in­de­pen­dent over­sight body with

broad au­thor­ity to mon­i­tor and en­force safety stan­dards for Metro’s rail op­er­a­tions. The com­mis­sion will take over that re­spon­si­bil­ity from the Fed­eral Tran­sit Ad­min­is­tra­tion, which as­sumed the job in Oc­to­ber 2015 in an un­prece­dented move af­ter con­clud­ing that ex­ist­ing over­sight was largely in­ef­fec­tive.

The District ap­proved leg­is­la­tion in De­cem­ber cre­at­ing the com­mis­sion, but of­fi­cials have since dis­cov­ered that ty­pos in the bill mean it will have to be voted on again. The Vir­ginia Gen­eral As­sem­bly ap­proved its ver­sion at the end of Fe­bru­ary, and it awaits Gov. Terry McAuliffe’s sig­na­ture. The Mary­land House unan­i­mously ap­proved its bill Thurs­day.

But even af­ter the three bills are signed into law, it will take months to get con­gres­sional ap­proval and com­plete other tasks nec­es­sary to set up the com­mis­sion, of­fi­cials said. The agency then has to be cer­ti­fied by the FTA be­fore about $15 mil­lion a year in fed­eral tran­sit aid re­sumes flow­ing.

“We’re hop­ing to get it done be­fore we leave of­fice,” Vir­ginia Trans­porta­tion Sec­re­tary Aubrey Layne said. His boss, McAuliffe (D), steps down in Jan­uary. So what went wrong? Fed­eral of­fi­cials point to foot­drag­ging and po­lit­i­cal in­fight­ing by the re­gion’s lead­ers. They fault McAuliffe and Mary­land Gov. Larry Ho­gan (R) for re­fus­ing to call spe­cial leg­isla­tive ses­sions last year to ap­prove the bills.

The area’s top elected of­fi­cials say that they were given an un­re­al­is­tic dead­line and that the FTA was slow to pro­vide guid­ance they needed.

“All of this [push­back] is the same tit-for-tat, back-and-forth grum­bling that hap­pens in this re­gion, and none of it quite frankly tends to lead to ac­tion,” said former trans­porta­tion sec­re­tary An­thony Foxx, who made the de­ci­sion to put Metro’s rail op­er­a­tions un­der FTA over­sight. “The ball has never been hid­den from the ju­ris­dic­tions” about what was re­quired, he said.

‘Ridicu­lous’ and ‘in­ex­cus­able’

It was July 2015 when Foxx sum­moned McAuliffe, Ho­gan and D.C. Mayor Muriel E. Bowser (D) to a meet­ing to dis­cuss the fu­ture of Metro and press them to move on cre­at­ing a new safety over­sight agency. The meet­ing took place six months af­ter the smoke in­ci­dent near the L’En­fant Plaza Metro sta­tion that re­sulted in the death of one rider and in­jury to scores of oth­ers.

Foxx said he left that meet­ing with the ex­pec­ta­tion that the three would move im­me­di­ately so leg­is­la­tion au­tho­riz­ing the com­mis­sion would go be­fore the Mary­land and Vir­ginia gen­eral assem­blies con­ven­ing in Jan­uary 2016. All three ju­ris­dic­tions have to ap­prove iden­ti­cal bills.

“My mes­sage was, ‘Folks, the house is on fire; we’ve got a big prob­lem here,’ ” Foxx re­called in a re­cent in­ter­view.

Foxx did not get the ur­gent ac­tion he an­tic­i­pated. Se­nior staff met to dis­cuss the leg­is­la­tion but got bogged down by dis­agree­ments over whether a new in­ter­state com­pact — sim­i­lar to the one that gov­erns Metro as a whole — would be legally nec­es­sary for the com­mis­sion. (They even­tu­ally de­cided it would be.)

In ad­di­tion, Ho­gan felt the meet­ing was mainly for show and was frus­trated that Foxx did not take re­spon­si­bil­ity for Metro in light of the fact that the Metro board chair at the time, Mor­timer Downey, was a fed­eral ap­pointee.

“Our take­away was that it was more ap­pear­ance than sub­stance,” Ho­gan spokesman Doug Mayer said. “[Foxx] laid a lot of the blame on the ju­ris­dic­tions when at that very mo­ment in time, the fed­eral ap­pointee was lead­ing the board. The gov­er­nor pushed back force­fully on that.”

In Oc­to­ber 2015, Foxx stepped up the pres­sure, giv­ing FTA over­sight of Metro safety. In Fe­bru­ary 2016, he set a one-year dead­line for the ju­ris­dic­tions to act or lose 5 per­cent of their fed­eral tran­sit aid. He warned them re­peat­edly that the dead­line was firm.

The dead­line caused bad feel­ings from the start. For one thing, Foxx said he im­posed it be­cause the ju­ris­dic­tions had failed to sub­mit the leg­is­la­tion in the 2016 leg­isla­tive ses­sions as he ex­pected.

But the District, Mary­land and Vir­ginia com­plained they never agreed to file the bills by then and could not have done so be­cause the FTA did not pro­vide fi­nal writ­ten guid­ance about how to set up a com­mis­sion un­til March 2016.

Foxx and the FTA dis­missed that ob­jec­tion, say­ing ex­ist­ing fed­eral law pro­vided enough in­for­ma­tion for the ju­ris­dic­tions to act. They also said FTA staff were in reg­u­lar con­tact with their re­gional coun­ter­parts to an­swer ques­tions.

A big­ger prob­lem was the 2017 leg­isla­tive sched­ules in Vir­ginia and Mary­land. Of­fi­cials say that since the ses­sions nor­mally be­gin in mid-Jan­uary, it was un­re­al­is­tic to ex­pect them to pass the bills by early Fe­bru­ary. Even if they did so, it would take an ad­di­tional six to nine months to set up the com­mis­sion and get it cer­ti­fied.

“The time­lines they im­ple­mented were re­ally not work­able when you have three dif­fer­ent ju­ris­dic­tions with dif­fer­ent time­lines for their leg­isla­tive ses­sion and the late­ness of the ma­te­ri­als they got us,” Mayer said.

But that in­vited the ques­tion of why Mary­land and Vir­ginia did not call spe­cial leg­isla­tive ses­sions — say, in Septem­ber — to meet the dead­line.

“It would have been wor­thy of spe­cial ses­sions, be­cause the [safety] is­sues are that acute,” Foxx said.

The gov­er­nors did not think the ses­sions were jus­ti­fied given the cost; the sit­u­a­tion did not con­sti­tute an emer­gency, and the FTA still had not pro­vided fi­nal drafts of rel­e­vant rules.

More­over, call­ing a spe­cial ses­sion is po­lit­i­cally risky be­cause it al­lows leg­is­la­tors to take up is­sues that the gov­er­nor might pre­fer to avoid. McAuliffe and Ho­gan face leg­is­la­tures con­trolled by the op­pos­ing party.

“Were the gov­er­nor to call a spe­cial ses­sion on this, it au­to­mat­i­cally lets other things come into play,” said Layne, the Vir­ginia trans­porta­tion sec­re­tary.

U.S. Rep. John De­laney (D-Md.) was aghast that Ho­gan and McAuliffe balked at re­call­ing law­mak­ers.

“It’s ridicu­lous. It’s in­ex­cus­able,” said De­laney, who has sub­mit­ted a bill that would give Metro an ex­tra $750 mil­lion in fed­eral fund­ing in ex­change for changes in the agency’s gov­er­nance struc­ture and la­bor con­tracts. “They call spe­cial ses­sions all the time.”

Then-Mary­land Gov. Martin O’Malley (D) con­vened a spe­cial ses­sion in 2012 on ex­panded gam­bling. McAuliffe called one in 2014 to re­solve a bud­get impasse.

‘They’re just not mo­ti­vated’

De­lays also arose as in­di­vid­ual ju­ris­dic­tions raised ob­jec­tions to dif­fer­ent parts of the bill. The District mod­i­fied it to guar­an­tee the com­mis­sion’s work would be open to the pub­lic. Vir­ginia in­sisted that each ju­ris­dic­tion have some veto pow­ers on the com­mis­sion.

As the Feb. 9, 2017, dead­line ap­proached, the re­gion was cau­tiously hop­ing that it had made enough progress that the FTA would re­frain from im­pos­ing the fi­nan­cial penalty. Of­fi­cials pointed to the D.C. Coun­cil’s pas­sage of the leg­is­la­tion in De­cem­ber, com­bined with the progress that the bills had achieved in Rich­mond and An­napo­lis.

But Foxx’s suc­ces­sor, Elaine Chao, en­forced the penalty just days af­ter tak­ing of­fice.

The im­pact is fall­ing es­pe­cially hard on rail and bus sys­tems in Vir­ginia and Mary­land out­side the Wash­ing­ton area that rely heav­ily on fed­eral grants.

Of­fi­cials said they were jug­gling funds within their bud­gets to min­i­mize the harm, but that will be­come more dif­fi­cult as the sus­pen­sion con­tin­ues into the next fed­eral fis­cal year be­gin­ning Oct. 1.

Layne was con­cerned that im­pos­ing the sanc­tion marked an es­ca­la­tion in the re­gion’s tussle with the fed­eral gov­ern­ment.

“It’s more po­lit­i­cally dam­ag­ing than fi­nan­cially,” Layne said. “We should be work­ing hand-in-hand with DOT on this,” in ref­er­ence to the Trans­porta­tion Depart­ment.

Even with the leg­is­la­tion ap­proach­ing fi­nal ap­proval, ob­sta­cles lie ahead.

Congress is ex­pected to take weeks, at least, to ap­prove the in­ter­state com­pact cre­at­ing the com­mis­sion. It could take longer if law­mak­ers seek to add amend­ments to the mea­sure, such as to change Metro’s la­bor prac­tices.

Then, the com­mis­sion’s nine mem­bers must be ap­pointed, an ex­ec­u­tive di­rec­tor and staff hired, and by­laws writ­ten.

Fi­nally, the FTA must cer­tify that the com­mis­sion meets its stan­dards. Re­gional of­fi­cials are al­ready wring­ing their hands over how dif­fi­cult it may be to get that fi­nal bless­ing.

In many ways, the main les­son from the tor­tu­ous de­lay in cre­at­ing the safety agency is the warn­ing it sends about how dif­fi­cult it is to ac­com­plish any­thing am­bi­tious re­gard­ing Metro.

All par­ties agreed from the start that it was nec­es­sary and im­por­tant to cre­ate the com­mis­sion. But Metro’s con­vo­luted gov­ern­ing struc­ture — in­volv­ing two states, a fed­eral district and the U.S. gov­ern­ment — com­pli­cated the process.

The same prob­lem­atic struc­ture also is ham­per­ing ini­tia­tives un­der­way in the re­gion to stream­line Metro’s gov­er­nance and ob­tain fresh sources of fund­ing.

Gen­eral Man­ager Paul J. Wiede­feld has warned that he will need sig­nif­i­cantly more money start­ing in mid-2018, but there is no con­sen­sus on how that would be achieved or what over­hauls would have to oc­cur be­fore­hand.

Moneme, of the Fed­eral City Coun­cil, said the ex­pe­ri­ence with the safety com­mis­sion led his in­flu­en­tial busi­ness group to pro­pose that Congress cre­ate an emer­gency con­trol board to run Metro. He said such in­ter­ven­tion is nec­es­sary be­cause the mayor and two gov­er­nors do not place a high enough pri­or­ity on Metro.

“What we saw over the last two years with the safety com­mis­sion is they have other pots boil­ing on the fire, they have other is­sues,” Moneme said. “Frankly, they’re just not mo­ti­vated.”

NIKKI KAHN/THE WASH­ING­TON POST

Emer­gency per­son­nel con­duct an evac­u­a­tion from a Metro train on a bridge along the Yel­low Line in Au­gust. A safety over­sight body for the tran­sit sys­tem is ex­pe­ri­enc­ing a fail­ure to launch.

NIKKI KAHN/THE WASH­ING­TON POST

A three-car Metro train de­rails near the East Falls Church sta­tion in Ar­ling­ton in July. An over­due Metro Safety Com­mis­sion might not be es­tab­lished un­til 2018 amid bu­reau­cracy and in­fight­ing.

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