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MBTA sues manufacturer of faulty ties on rail lines

By Eric Moskowitz
Globe Staff / May 5, 2010

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The MBTA filed a lawsuit yesterday against the manufacturer of crumbling ties on the Old Colony commuter rail lines, demanding that the company reimburse the T for an estimated $91.5 million replacement project and pay other costs and damages.

The faulty ties, barely a decade old, have hampered travel on the Old Colony Line’s Plymouth/Kingston and Middleborough/Lakeville branches and forced the T to impose speed restrictions. The full replacement project for all 147,500 ties on those branches is scheduled to begin this summer and last nearly two years, imposing significant delays and disruptions for thousands of riders between Boston and its southern suburbs.

Rocla Concrete Tie Inc. marketed those ties with a 50-year life span and sold them to the T for $9 million with a 15-year warranty, but several thousand began failing just a decade after the Old Colony commuter lines resumed service in 1997. The T is suing the company for negligent misrepresentation, unfair or deceptive trade practices, and breach of warranty.

“When confronted with the discovery of the defective ties, Rocla admit ted that the MBTA would need to replace the entirety of the concrete ties installed on the Old Colony Line and that its concrete ties should never have been marketed as having a 50-year life span,’’ the T’s lawyers, from Ropes & Gray, wrote in the lawsuit, which was filed yesterday in Suffolk Superior Court.

A spokesman for Colorado-based Rocla did not return multiple messages seeking comment yesterday or last week, when T officials acknowledged the magnitude of the problem and outlined plans for replacement work.

The MBTA first began to notice failing ties in 2007, and the following year the T and the Massachusetts Bay Commuter Railroad Co. — the partnership it contracts with to run the commuter rail — began regular track inspections and piecemeal replacements of concrete ties, the horizontal planks that hold the metal rails in place. About 6,000 of those ties have been replaced, Richard A. Davey Jr., the MBTA’s new general manager, said last week.

But incremental repairs will not be enough to keep trains running safely and on time along those branches, Davey said, in announcing plans for end-to-end replacements. That project, slated to begin in August, will require the T to cancel weekend service temporarily on those branches and replace midday service with buses. Trains will continue to run during peak commuting times, albeit with faulty ties keeping speeds in check. Other planned projects will take a back seat to this emergency work, Davey said.

The T’s estimate includes about $35 million for materials and $38 million for labor. The state Department of Transportation’s board of directors — which also serves as the T’s board — will be asked at its regular meeting today to approve engineering, design, and project management contracts for the work.

Davey, who declined to comment on the pending lawsuit yesterday, said last week that the tie failure was not the T’s fault and that he expected the Massachusetts Bay Transportation Authority to recover its costs, through negotiations with Rocla or in court.

Recent history suggests that will not be easy. Other agencies, including Amtrak and New York’s Metropolitan Transportation Authority, have also engaged in battles with Rocla over faulty ties manufactured in the mid-1990s. MTA, which operates the Metro-North and Long Island railroads, sued Rocla in 2006. The two sides eventually settled, with Rocla agreeing to provide improved replacements for 260,000 ties and pay $1 million a year for 10 years to defray labor costs, an MTA spokesman said.

Amtrak also replaced faulty ties with upgrades from Rocla. An Amtrak spokesman yesterday said the terms of that settlement were confidential and would not say whether the agency had recovered labor costs.

The T, which has attempted talks with Rocla since discovering the problem, has received only 500 replacement ties from the company and plans instead to install wooden replacements along Old Colony. Wood was the standard for generations but has lost popularity in recent decades to concrete and composite ties, which — in theory — last longer, are easier to install, and provide for better train performance and fuel economy; their rigidity has made them essential for achieving the high speeds traveled by trains in Europe and Asia.

An earlier foray into concrete ended poorly for the T, which in 1991 sued a separate manufacturer over faulty ties on the Needham line. As a result, officials vowed to stick with wood for Old Colony.

That’s when Rocla intervened, according to the lawsuit, making repeated appeals to MBTA officials to consider their product, which they offered at a discount and promised would exceed requirements “for durable, long-lasting and low-maintenance track structures,’’ according to the lawsuit.

“We believe the decision to use timber ties resulted from MBTA’s unfortunate experience with defective concrete ties,’’ Rocla, according to yesterday’s lawsuit, wrote in a 1993 pitch, assuring the T that quality-assurance practices had improved across the industry. “Further, the testing of cements now used in the production of concrete ties assures there will be no repetition of the previous problem.’’

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