19990330_1.docx

MINUTES OF DECISION MEETING
March 30, 1999 - 1:30 p.m.
In attendance were Commissioners Dennis Hansen, Marsha H. Smith and Paul Kjellander. Also in attendance were staff members Don Howell, Cheri Copsey, Ron Law, Stephanie Miller, Tonya Clark, Terri Carlock, David Scott, Carolee Hall, Joe Cusick, Randy Lobb, Wayne Hart and Myrna Walters. Also in attendance were Rick Gale of Idaho Power Company and Charlie Clark of Union Pacific.
Items from the published March 30, 1999 Agenda were discussed and acted upon as recorded herein.
Commission President Dennis Hansen called the meeting to order. First item of business was consideration of the minutes of the March 15, 1999 Decision Meeting. Said Minutes have circulated to the Commissioners and corrections have been made.
Commissioner Hansen made a motion to approve the minutes; vote taken; motion carried unanimously.
Next to be considered were Items 2, 3 and 4 on the Consent Agenda.
Commissioner Hansen asked if there were questions or concerns on any of the three items on the Consent Agenda. Commissioner Smith made a motion to approve the items; vote taken; motion carried unanimously.
Under MATTERS IN PROGRESS, Item 5 - Don Howell’s March 12, 1999 Decision Memorandum re: Petition to Close the “OLD” Railroad Grade Crossing in Ponderay, Case No. UPR-R-99-1, was then considered.
Don Howell reviewed the decision memorandum that had been held from the March 15, 1999 Decision Meeting. Staff has prepared this memo asking how the Commission wishes to further process this matter. Legal Memo has also been issued to the Commissioners for their information.
Commissioner Hansen asked Ron Law if he wanted to say anything in regard to this matter.
Ron commented that if it were within the purview of the Commission to just order closure, staff would recommend that but are instead recommending that it be handled under modified procedure and limit the issues and comments to the one requirement that assured access on old Highway 95; to determine that that condition has been satisfied and that the old crossing can be closed.
Commissioner Hansen asked Mr. Clark of the Railroad if he wanted to comment.
Mr. Clark said he did have some comments. Said the Company would just as soon a final order be issued from this Commission to close the old crossing immediately, whatever that entails, would like to get this done.   This has been dragging on since 1986. Said this is like a bad penny that has come back year after year. The railroad has fulfilled its obligations by putting in a new crossing, Transportation has put in turn bays and still because of one little problem, can’t seem to get the old crossing closed. It is a very dangerous crossing.   Indicated the District Engineer for ITD  concurs in that. Said what makes this interesting to him is the RR is running 7 trains a day through there at 20 mph, bringing lumber from Canada. This track is going to get busier and busier. This old crossing is being used primarily for a fuel bulk plant (Texaco). Pointed to page 2 of the decision memo where Highway 200 just shows one rail. Said there is a siding there ½ mile long and the Railroad puts cars there to turn them around and back up cars going south. Trucks coming south on Highway 200 get to the crossing and take a right and it holds up the traffic behind them. Once they get to the old crossing and look right, there are cars sitting there in that switch and the truck could be creeping out there and a thru-train could hit the truck. It is a real concern of the railroad and has been for a long time. The railroad would appreciate the Commission authorizing closure.
Commissioner Hansen asked Mr. Clark how far the old crossing was from the new crossing?
Mr. Clark replied he thought it was less than 1/4 of a mile.
Commissioner Hansen asked Mr. Clark if he was aware of any other places in the state where the railroad has two crossings within 1/4 of a mile, is that common, that it would be upgraded as close as it is?
Mr. Clark said he has not seen two fully protected crossings such as these. Each of these fully protected crossings cost $200,000 to $300,000.
Commissioner Smith said she understands the railroad’s position. It is incumbent upon the Commission to get this resolved. What we need to do is to satisfy ourselves that there is access. It seemed to her it is unrealistic to order parties that it has no jurisdiction over to convey land. It seems what the Commission’s concern was, is there access to the entire parcel here? That was the concern. Looked to her like the evidence the Commission needs is that there is access to the portion of this mall area where the old crossing is and that is what she needs to be shown. If that access is there, the conveyance of land is not important. Is unsure that motorists will have access to the new crossing. If we are shown that all the conditions have been met, how do we let people show us that? Modified would probably work for us,  but don’t know if it will work for the people of Ponderay. We are going up there in June,   could do this and issue an order expeditiously. Don’t know if a hearing would be necessary, just need to be shown that the third condition of the original order has been met. Then can tell the railroad - you’re done, we’re done, close the crossing.
Commissioner Hansen said he would like to complement the railroad for doing what was required of them to close the old crossing. Can see where they are under the impression that if you do this and this, the crossing can be closed, and the railroad did their part. Don’t know for sure where the opposition is coming from (the city of Ponderay) because he would assume they  would have located their business accordingly since an order had been issued closing the old crossing. Don’t know, guess it would be interesting to know how those people viewed that crossing (whether it would eventually be closed). Said the concern he really had is - gave an example in Soda Springs where there were two crossing to be closed and in the delay of closing them, a man was killed, see the danger in this crossing also. ITD and the IPUC both say it is unsafe. The railroad has petitioned that it is unsafe, so based on the safety issue, he made a motion that the Commission order that the “OLD” crossing be closed and set that for May 1. This would give any party the opportunity to petition for reconsideration in 21 days from the issuance of the order and the order could be issued. The Commission in the past had said it was unsafe. Was concerned that if someone is killed while we are waiting, would question whether the railroad would be liable. Think it is the Commission’s responsibility to act on safety.   That gives those people a chance that if we need to look into the third criteria, they can petition for reconsideration and state why it should be left open. Would make that a motion. Asked if there were other comments or motions?
Commissioner Smith said she had a substitute motion.
Commissioner Kjellander commented that he realized that this has been before the Commission for some time and that he doesn’t know much about this. Has a feeling that since this has been going on for sometime and there are some relative questions to be asked. If we are going to be up there this summer, why not let them have an opportunity to have their two cents worth and we can move on from there. Said he would be leaning toward having a hearing rather than closing something he has only seen on paper.
Commissioner Smith commented she didn’t think that the Commission has found that the old crossing  was unsafe, but that the new one would be safer than the old one and the old one should be closed. The third condition - whether motorists or businesses have access to the area, that is all we need to know in order to close the old crossing. We could have a hearing in June or take comments. Said she was indifferent but think people would appreciate telling the Commission what they think and her substitute motion would be that the Commission issue an order asking the railroad to present whatever evidence it has,  in advance of the hearing that people have access to the area, and reference the conditions that have been met and then we could note that it appears that the conditions have been met. Then we will hold the hearing on the one specific issue and we can even rule from the bench in order to move the matter along, because she is aware of the safety concerns but is not ready to issue an order closing the crossing at this time. (Don’t deal with whether someone should deed land, only deal with access).
Commissioner Kjellander said this approach would probably actually  be on the same timetable as Commissioner Hansen’s motion;  that with the substitute motion we could get to a final conclusion at about the same time as issuing an order and waiting for the reconsideration time.  
Don Howell asked for clarification.   Asked if  the issue of access to the area could be covered by modified procedure or comments?
Commissioner Smith said if the railroad has information it could furnish immediately to say the condition has been met, we will take public comment on that when we are in northern Idaho in June. Is trying to give the public one more shot at this. Also said the railroad can decide if they need to be at the hearing. If they submit the required information in writing, they don’t have to appear. Also safety issue doesn’t need to be addressed either. No one is disputing the safety of the new crossing.
Vote was taken on the substitute motion; it passed 2 to 1 - Commissioners Smith and Kjellander voting aye; Commissioner Hansen voting nay. Vote on the original motion was not necessary as the substitute motion passed.
Decision Meeting was then adjourned.
Dated at Boise, Idaho, this 30th day of March, 1999.
Myrna J. Walters
Commission Secretary