3. The Settlement
The parties filed responses to the OIR and the staff inspection report, participated in workshops and filed information relevant to the resolution of the issues in this proceeding. The parties engaged in settlement negotiations which produced a settlement. UP, BNSF, the Short Lines, Teamsters and UTU (Settling Parties) are all parties to the settlement. CalTrain and Metrolink are not signatories of the settlement, but the Settling Parties assert that both CalTrain and Metrolink have represented through their counsel that they do not oppose adoption of the settlement. Neither CalTrain nor Metrolink filed comments in opposition to the settlement. The Settling Parties responded to the ALJ's request for additional information to clarify the terms of the settlement.4
The Settling Parties propose the Commission adopt the following settlement terms:
1. General Order 118 is hereby amended to add the following to the standards filed by railroad corporations subject to General Order 118:
A. Where crushed material is used for walkway surfaces, 100% of the material must be capable of passing through a 1½-inch square sieve opening and 90%-100% of the material must be capable of passing through a 1-inch square sieve opening; provided, however, that a de minimis variation of this standard shall not be a violation where the railroad has made a good faith effort to comply. This standard does not apply in emergencies.
B. This standard applies only to walkways adjacent to tracks within yards where employees are regularly on the ground to perform their normal trackside duties; it does not apply to walkways adjacent to mainline tracks in yards or to tracks outside of yards.
C. For purposes of this standard, any measurement of the size of crushed material used to surface walkways must be performed according to the prevailing standards and practices for such measurements as set forth by the American Railway Engineering and Maintenance-of-Way Association (AREMA).
D. This standard applies only at locations owned or controlled by a railroad corporation at the time that walkway materials are applied.
E. This standard applies only to walkway materials applied on or after the date that the Commission adopts this standard as a binding amendment to General Order 118.
2. This amendment does not limit the ability of railroad employees to use any procedures that may otherwise be available to pursue complaints regarding walkway conditions, including the size of ballast used at locations other than those covered by this amendment.
All parties to this proceeding have expressed a strong interest in providing a reasonably safe work environment for railroad employees. The Settling Parties assert that the settlement is in the public interest because it strikes a proper balance, achieving increased employee safety within the context of federal law and industry engineering practices applicable to ballast.5
4 UP filed the response to the April 20, 2009 ALJ Ruling in consultation with the other Settling Parties. Due to time constraints, the Settling Parties did not file jointly.
5 Response to April 20, 2009 ALJ Ruling at 8.
