4. Discussion

Rule 12(d) of the Commission's Rules of Practice and Procedure (Rule) provides that:

The Commission will not approve settlements, whether contested or uncontested, unless the settlement is reasonable in light of the whole record, consistent with the law, and in the public interest.

This is the standard of review for this settlement.

4.1. Paragraph 1.A. of the Settlement

Paragraph 1.A. of the settlement describes with specificity the size of materials to be used as ballast on walkway surfaces. The ALJ ruling issued on April 20, 2009, asked the parties to provide the ballast specifications currently used by UP and BNSF for California switching yards. In the response to the
ALJ ruling, UP cited the source of its ballast specifications as the engineering standard entitled "Ballast & Subballast Gradation Table." A copy of the table was attached to the response. According to the response, UP follows the table's guidelines when determining the appropriate ballast size for a specific location or condition. The response concluded by stating that BNSF follows a similar standard.⁶

The specifications in Paragraph 1.A. of the settlement are consistent with the standards currently in use by the mainline railroads. UTU represents the railroad employees whose occupation health and safety are directly affected by the settlement's proposed ballast size provisions. UTU was a signatory to the settlement. The Commission finds no reason to reject the ballast size specifications contained in Paragraph 1.A. of the settlement.

Including Paragraph 1.A. of the settlement in General Order (GO) 118 formalizes current industry practice regarding ballast size on walkways, provides all railroads with uniform specifications and railroad employees with an enforceable standard that protects their occupational health and safety. Therefore, the ballast size specifications contained in Paragraph 1.A. of the settlement are in the public interest and the Commission adopts it.

4.2. Paragraph 1.B. of the Settlement

Paragraph 1.B. of the settlement exempts walkways adjacent to mainline tracks within switching yards from the ballast size specifications in Paragraph 1.A. The April 20, 2009 ALJ ruling asked parties to explain why walkways adjacent to mainline tracks in switching yards are exempt from the provisions of Paragraph 1.A.

The Settling Parties responded that trains on mainline tracks carry freight between destinations as distinguished from yard track that is used for activities such as receiving trains, switching cars to assemble trains, preparing trains for departure, and refueling and repairing cars; activities commonly performed by employees on the ground adjacent to yard tracks. Trains may enter a yard on mainline track and never switch onto yard track and therefore the walkways adjacent to mainline tracks in railroad switching yards are not as commonly used by employees and, according to the Settling Parties, should be exempt from the ballast size specifications. The Settling Parties refer to the 1990 consensus

agreement adopted by the Commission which classifies track as one of four types depending on the frequency with which employees may be required to be on the ground adjacent to tracks. On one end of the scale are tracks where employees are routinely on the ground and on the other end are tracks where employees are only on the ground after an emergency.⁷ The parties also point out that mainline tracks account for only a fraction of the miles of tracks in railway switching yards.

Although switches on mainline tracks are power-operated and remotely controlled, when switching is performed at such locations railroad employees are on the ground operating switches manually and otherwise occupying the walkway areas. The conditions in the areas of such switches are currently governed by Standard No. 3 and Standard No. 5 of GO 118.⁸ To exclude all mainline track within railway switching yards from the ballast size provisions would reverse the currently applicable provisions of GO 118. The purpose of this rulemaking was to provide additional protection for railroad employees, not take a step backward from the existing standards. For this reason, Paragraph 1.B. of the settlement is modified to include only those areas of mainline track walkways in railroad switching yards where employees regularly conduct switching operations, which includes areas in yards covered by Standard No. 3 and Standard No. 5 of GO 118. Similarly, a reference to the existing walkway surface requirements was added to clarify that the new provisions do not alter the generally applicable requirement that walkways shall provide a reasonable and regular surface.⁹ With these modifications, Paragraph 1.B. of the settlement is in the public interest and the Commission adopts it.

4.3. Paragraph 1.C. of the Settlement

Paragraph 1.C. of the settlement requires that any measurement of the size of crushed material must be done according to AREMA standards. The ALJ ruling sought clarification regarding this provision and how it would be applicable to Commission staff compliance inspections. Parties replied that while the settlement did not create a requirement that measurements be taken, in the event that a measurement is performed for any purpose related to the new rule, the proper measurement method is the AREMA standard.¹⁰

The AREMA standards require that a random sample be run through sieves connected to a mechanical shaker. The results from the sieves are weighed and compared to the applicable size standard to ensure conformity. It is important to note that AREMA standards are used for the purpose of measuring the ballast material at the point of manufacture and purchase and in that case requires a representative sample be taken from each 1,000 tons of ballast being loaded for shipment.

The Commission's interpretation of the settlement provision, confirmed by the Settling Parties' response to the ALJ ruling, is that prior to any enforcement action on the part of CPSD staff, a measurement taken according to AREMA standards would need to occur. This provision places an onerous burden on Commission staff. The settlement is unclear regarding who is responsible for providing the sieves and mechanical shakers. CPSD currently has no sieves or mechanical shakers, nor does it have plans to acquire such equipment in the near future. It would be impractical, if not impossible, for CPSD staff to implement this measurement out in the field. This requirement would effectively preclude CPSD staff from enforcing the provisions of the settlement.

Paragraph 1.A. provides that a de minimis variation of the standard is not a violation as long as the railroad has made a good faith effort to comply. This language should allay any fears that railroads will be subject to enforcement action for minor noncompliance with the new standard and renders the measurement requirements in Paragraph 1.C. unnecessary. For this reason, Paragraph 1.C. is not in the public interest and the Commission declines to adopt it.

4.4. Paragraph 1.D. of the Settlement

Paragraph 1.D. states that the provisions of Paragraph 1.A. only apply to locations owned or controlled by the railroad at the time walkway materials are applied. In response to the ALJ ruling, parties explain that the provisions of Paragraph 1.D. are intended to address a very specific circumstance where railroad facilities are not owned or controlled by the railroads. Certain non-regulated industrial customers may provide the tracks and walkways at their facilities which may not comply with GO 118. The parties state that the railroads and staff have methods of strongly encouraging compliance, but that jurisdictional issues exist because the Commission does not have regulatory authority over the industries or their track.¹¹

The Settling Parties explain that the provisions of Paragraph 1.D. are to ensure that a railroad acquiring such property could not be required to replace non-compliant walkway material at the time the railroad acquires it. The Settling Parties find this provision particularly important to the Short Lines who have limited resources, but who are usually the entities acquiring facilities from industrial customers. According to the provisions of Paragraph 1.D., the acquiring railroad would only be responsible for ballast size compliance with respect to future applications of walkway material.¹² The Short Lines state that the provisions in Paragraph 1.D. allow them to expand their businesses and use scarce financial resources more efficiently by allowing compliance with the new requirements to occur concurrently with repairs and maintenance. The Commission finds this rationale reasonable and in the public interest and adopts the provisions of Paragraph 1.D. as proposed.

4.5. Paragraph 1.E. of the Settlement

Paragraph 1.E. applies the provisions of Paragraph 1.A. to walkway materials applied on or after the date the Commission amends GO 118. Paragraph 1.E. balances the concerns for employee safety with the financial burden of requiring the railroads to bring all tracks into immediate compliance. Because existing tracks owned and controlled by railroads are held to the current standards of GO 118, there exists a built-in deference to employee safety that is not present in the provisions of Paragraph 1.D. that relate to non-railroad-owned facilities. For that reason, Paragraph 1.E. is in the public interest and the Commission adopts it.

4.6. Paragraph 2 of the Settlement

Paragraph 2 of the settlement is a statement regarding the rights of employees to use and pursue all complaint procedures regarding ballast size. Although the Commission believes this guarantee is implicit, there is no harm in including the statement in GO 118. The provisions of Paragraph 2 are in the public interest and the Commission adopts the provisions of Paragraph 2.

4.7. Conclusion

The settlement, as modified above, is reasonable in light of the whole record. The settlement, as modified, does not violate any statute or Commission decision or rule. Thus, the settlement, as modified, is consistent with law.

The settlement, as modified, results in standardized ballast material size for walkways in switching yards and provides increased occupational health and safety for railroad employees while performing their trackside duties. Therefore, the settlement, as modified, is also in the public interest and should be adopted.

Rule 12.4 indicates the steps the Commission may take in rejecting or modifying a settlement. In this instance, the Commission proposes modified settlement terms. The modifications are discussed and included in Attachments A and B to this decision. Attachment A contains a revised version of the General Order with the changes tracked. Attachment B is a clean revised copy of the new GO 118-A.

Although the provisions of the settlement, as modified, pertain only to tracks within switching yards, this decision does not supersede the existing requirements in GO 118 that railroads provide a reasonable and regular surface on all other walkways. The Commission is concerned that walkways adjacent to tracks in switching areas outside of switching yards are not included in the new provisions, but are also areas where railroad employees are susceptible to injury while performing tasks related to switching operations. To ensure the Commission is kept informed of the status of walkways adjacent to tracks in switching areas not covered by the new provisions, UP and BNSF will jointly file a report with the Commission every twelve months after the effective date of this decision. The report will provide information on the condition of walkways adjacent to tracks in switching areas outside of railroad switching yards. This information will assist the Commission in determining if further action is necessary.

⁶ Response to April 20, 2009 ALJ Ruling at 6.

⁷ Id. at 4.

⁸ Standard No. 3 governs walkways conditions at mainline switches entering yards and serving industry tracks except as provided in Standard No. 5. Standard No. 5. governs walkway conditions at Short Line and Branch line switches, and locations where switches are power-operated.

⁹ The "reasonable and regular surface" requirement is renumbered as Paragraph 11. of GO 118-A, (included as Attachment B).

¹⁰ Response to April 20, 2009 ALJ Ruling at 7.

¹¹ Response to April 20, 2009 ALJ Ruling at 7.

¹² Id. at 8.