You raise an interesting point. Rules should usually apply across the board, but rules are not always drafted to fit every situation. That is why the FRA has a waiver process and that is why I filed a petition. I am not the only one to do so. All the major railroads routinely file waiver petitions for one rule or another because of that problem. And quite often the FRA grants the waiver request. Sometimes it does not. This is not a question of whether "Every Tom, Dick and Harry" gets the same waiver I requested. If someone else files for one, it should be determined on the individual merits of the request regardless of whether it is an individual or a company making the request and regardless if a previous waiver request has been granted or denied.
The purpose of the rule requiring the pulling of the tubes for an inspection after 15 years or 1472 SERVICE days definitely has a place. If I ran Eureka such that came anywhere near the use allowed by that rule or maintained it in an enviroment over the years that compromised the boiler, I would have never filed the waiver petition. However, Eureka's situation has been unique, and therefore merited the waiver peition which is permitted by no less than the rules themselves and the First Amendment to the Constitution of the United States.
Both the major railroads, and I as an individual, make it a point to follow the rules, but anyone who comes under them is also allowed to take advantage of the benefits the rules allow and not only burdens.
Finally, it should be noted that while the 15 year 1472 day rule is in the Code of Federal Regulations, it is not a statute passed by any elected representative of the public. It was decided upon, as all bureaucratic rules are decided upon....by an agency. It is no different than the regulations adopted by the IRS. If there is no flexibiity in the FRA regulations, then there would also be no flexi bility in the IRS regulations. If the IRS adopted a regulation that said to send in everything you make, would you do so just because they said so....or would you like perhaps to explain your particular situation and that maybe that "rule" might just need modification? Just because some agency adopts a "rule" does not make it free from being arbitrary or capricious.
It has been a pleasure sharing Eureka with the Public. I hope to continue to do so. But, whether it is me or the big guys, sometimes a problem is identified that needs individual examination. It is a fundamental constitutional right for anyone to apply to the government to hear their cause. Railroads big and small do it every day, and it is the business of government to at least listen. You never can tell...every so often the public just might be right.
Dan Markoff
