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HomeMy WebLinkAbout19990709Order No 28094.docBEFORE THE IDAHO PUBLIC UTILITIES COMMISSION IN THE MATTER OF THE APPLICATION OF ABANDONMENT BY UNION PACIFIC RAILROAD COMPANY OF THE BOISE CUT OFF FROM MILEPOST 423.6 TO MILEPOST 443.0 IN ADA COUNTY, IDAHO. ) ) ) ) ) ) CASE NO. UPR-R-99-2 ORDER NO. 28094 On March 26, 1999, the Union Pacific Railroad Company (Union Pacific) filed a Notice with this Commission indicating that Union Pacific intended to seek authority from the Surface Transportation Board (STB) to abandon its “Boise cutoff” from milepost 423.6 to milepost 443.0, a distance of 19.4 miles near Boise, Ada County, in the state of Idaho. On June 3, 1999, Union Pacific filed a Notice with, among other entities, this Commission indicating that it would seek the “no business” exemption procedure (an expedited process followed in certain railroad abandonment proceedings) when it filed with the STB for authority to abandon the Boise cutoff. In that Notice, Union Pacific states: The “no business” exemption procedure will be used pursuant to the abandonment regulations of the Surface Transportation Board at 49 C.F.R. 1152.50. No local traffic has been moved over the line for at least two years and any overhead traffic can be rerouted. A Notice of Exemption will be filed with the Surface Transportation Board on or about June 18, 1999. Union Pacific did, in fact, file an exemption petition with the STB on June 18, 1999. On June 23, 1999, this Commission conducted a hearing pursuant to notice and to Idaho Code § 62-424 regarding Union Pacific’s proposed abandonment of the Boise cutoff. That statute provides: Hearing on abandonment.—Whenever any railroad proposes to abandon any branch line or main line now in operation within the state of Idaho, the railroad shall file a notice of the intended abandonment with the public utilities commission. The public utilities commission shall schedule a public hearing on the proposed abandonment. If the hearing results in a finding by the commission that the abandonment of the branch results in a finding by the commission that the abandonment of the branch line or main line would adversely affect the area then being served and that there is reason to believe that the closure would impair the access of Idaho communities to vital goods and services and market access to those communities and that the line has potential for profitability, then the public utilities commission shall transmit a report of its findings to the United States surface transportation board on behalf of the people of the state of Idaho. The evidentiary hearing conducted by the Commission pursuant to Idaho Code § 62-424 was well attended. The testimony of nine witnesses was given under oath and recorded by a court reporter. That testimony is summarized below. Dan Vickers—Idaho Public Utilities Commission Staff Mr. Vickers is, among other things, the Commission Staff’s Rail Safety Inspector. He conducted an analysis and investigation regarding Union Pacific’s proposed abandonment in this case. Tr. p. 5. Mr. Vickers identified Staff exhibits 101 through 104 with are letters received by the Commission pertaining to the proposed abandonment. Exhibit 101, attached hereto as Appendix A, is a letter dated May 13, 1999, from the Idaho Army National Guard indicating that the National Guard uses a portion of the Boise cutoff for military purposes and that the National Guard is “strongly opposed to this proposed action.” In its letter, the National Guard states that the Boise cutoff is “vital to the Idaho Army National Guard operation.” The letter concludes that abandonment of the Boise cutoff “would have a consequential effect on national security.” The National Guard notes that it is in the design phase of constructing a rail head in the vicinity of the cutoff, for which it does not anticipate completion until three to five years. Mr. Vickers also identified Staff Exhibit No. 102, attached hereto as Appendix B, which purportedly constitutes Union Pacific’s response to the National Guard in a letter dated June 3, 1999. Union Pacific states that it would move the starting point of the abandonment in order to accommodate the National Guard. As noted later in this Order, however, Union Pacific’s witness could not confirm whether this was acceptable to the National Guard. Staff Exhibit No. 103, attached hereto as Appendix C, is a letter dated June 7, 1999, from the Idaho State Historical Society (ISHS) opposing the abandonment of the Boise cutoff due to its historical significance. The ISHS states that “abandonment will have an adverse effect on the historic property.” The ISHS recommends that “the line be inspected for sites [historical] prior to any further abandonment proceedings.” Staff Exhibit No. 104, attached hereto as Appendix D, is a letter dated June 9, 1999, from the Idaho Division of Environmental Quality (DEQ), in which the DEQ expresses concern that if the Boise cutoff is abandoned, there might be consequential harm to air quality and potential for the accidental spill of petroleum hydrocarbons. In addition to noting the concerns expressed by others regarding the abandonment of the Boise cutoff, Mr. Vickers testified that the abandonment would essentially curtail Amtrack service to Boise for passengers heading east. Tr. p. 11. Garret Nancolas—Treasure Valley Regional Public Transportation Authority (TVRPTA) and Mayor of Caldwell, Idaho Mayor Nancolas is the chairman of the TVRPTA as well as Mayor of the City of Caldwell, Idaho. Mayor Nancolas is concerned that if the Boise cutoff is abandoned, the right-of-way in the area would be lost to the citizens of the Treasure Valley for regional transportation purposes in all forms including the possible future installment of a regional rail made of public transportation; also referred to as a Regiosprinter. Tr. p. 15. The TVRPTA is not opposed to the proposed abandonment but wants the right-of-way on the corridor preserved for future public uses. Tr. p. 17. Mayor Nancolas testified that if a Regiosprinter is ever installed in the Boise Valley, the continued availability of the rail line and corridor currently occupied by the Boise cutoff would be critical to that purpose. Tr. p. 17. Roger Simmons—Ada County Commissioner Commissioner Simmons testified as an Ada County Commissioner as well as Vice Chairman of the TVRPTA and Chairman of the Ada Planning Association. He noted that the Ada Planning Association is in opposition to the abandonment of the Boise cutoff. Tr. p. 22. The Ada Planning Association requests that Union Pacific be requested to delay salvaging the track to allow local government the opportunity to seek funding for acquisition of the Boise cutoff. Tr. p. 23. Brent Coles—Mayor of Boise, Idaho Mayor Coles testified as Mayor of Boise, Idaho and by virtue of a request of the Boise City Council. He opposes the abandonment of the Boise cutoff. Tr. p. 29. He emphasized the importance of a rail connection between Boise and the City of Mountain Home, Idaho; the latter in which is located a defense facility that Mayor Coles testified, is, “very important to the national security of our nation.” Tr. p. 30. He further emphasized the importance of maintaining a connection between Union Pacific’s main rail line and the state’s capitol city. Id. Mayor Coles also recognizes the importance of the Boise cutoff to industrial growth in the eastern portion of the City. Tr. p. 33. He concluded: In fact, we feel very strongly that the loss of this trackage would be the loss of real value to real estate in that area and also a real impact on the value of the City-owned depot which is real estate that we own and has a future value that would be decreased by the abandonment of the rail south of Boise. Tr. p. 34. Ralph Johnston—Rail Enthusiast Mr. Johnston testified as a “rail enthusiast.” He opposes the abandonment of the Boise cutoff because of its importance to the restoration of Amtrack service to Boise. Dale Wheeler—United Transportation Union and the Idaho State AFLCIO Mr. Wheeler who testified on behalf of railroad union workers, opposes the abandonment of the Boise cutoff. Tr. pp. 40-41. In addition to his capacity as a union representative, he is a locomotive engineer for Union Pacific Railroad. He testified that the abandonment would affect employment in the area, if not the entire state of Idaho. Tr. p. 41. He also notes that if the abandonment is approved, Boise Locomotive, a local manufacturer and refitter of rail locomotives, will be unable to test locomotives which it rebuilds and repairs. Id. He testified that Union Pacific has been using the Boise cutoff to store railroad cars; particularly in the last several months. Union Pacific also stores other cars on the track. EnviroSafe stores its hazardous waste cars on the Boise cutoff as well. Tr. p. 42. The Boise cutoff makes it possible for EnviroSafe, a local hazardous waste and treatment operation, to store hazardous waste in an area that is distant from the local populace. Tr. p. 42. Finally, military equipment has been stored on the track over the years. Id. Mr. Wheeler also testified that a portion of the Boise cutoff lies in an area where businesses now exist that could request rail service in the future. Id. This area in particular is attracting new businesses that engage in warehousing type trade. If the rail is abandoned in this area, he concludes the potential for expansion could be impeded which would impair the access of Idaho communities to vital goods and services. Tr. pp. 42-43. Mr. Wheeler also noted that the abandonment of the Boise cutoff would eliminate the possibility of restoring Amtrack service to Boise; the subject of recent efforts by United States Senators Wyden of Oregon and Crapo of Idaho. Tr. p. 43. Jim Lance—Union Representative Mr. Lance testified as a representative of the Brotherhood of Locomotive Engineers, Division 228, as an engineer for Union Pacific, as a member of the Bannock County Central Labor Committee and as a member of the Idaho State Legislative Board for the Brotherhood of Locomotive Engineers. He opposes the abandonment of the Boise cutoff because it would have adverse effects on rail service to the Treasure Valley. Tr. pp. 49-50. The Boise cutoff represents a possible solution to alleviating traffic congestion in the Treasure Valley and is critical to the restoration of Amtrack service to Boise. Tr. p. 50. Mr. Lance notes that business is expanding rapidly in the area currently served by the Boise cutoff. Tr. p. 51. Jeff Ramage—Union Representative Mr. Ramage represents the Brotherhood of Locomotive Engineers on the Idaho State Legislative Board. He opposes the abandonment of the Boise cutoff for the same reasons identified by Mr. Wheeler and Mr. Lance. Gary Bonner—Senior Manager of Terminal Operations for Union Pacific Mr. Bonner noted that three shippers currently use the Boise cutoff, including Boise Locomotive, the Idaho Army National Guard and EnviroSafe. Tr. p. 61. Moreover, Union Pacific itself has used the track to store cars. Id. Finally, the Boise cutoff has been used for bypass purposes when there were derailments or other problems encountered on Union Pacific’s main line south of Boise. Id. When asked whether the abandonment would essentially shut down Boise Locomotive’s ability to test its locomotive engines, Mr. Bonner responded that he “would have to agree to that.” Tr. p. 62. Mr. Bonner testified that he had no knowledge whether an acceptable agreement had been worked out between Union Pacific and the Idaho Army National Guard regarding the National Guard’s use of the Boise cutoff. Tr. p. 62. Mr. Bonner testified that Union Pacific has been contacted recently about future use of the Boise cutoff by other businesses or potential businesses. Tr. p. 63. Regarding the actual use of the Boise cutoff by current shippers, Mr. Bonner testified that the Idaho Army National Guard shipped 40 cars over the last year. Moreover, Boise Locomotive tests its locomotives on the cutoff “at least twice a week” throughout the year. Tr. p. 64. Union Pacific signed a lease with EnviroSafe authorizing that company to store up to 80 cars on the Boise cutoff. Id. Union Pacific has stored 400 cars on the Boise cutoff over the past year. Tr. p. 65. Boise Locomotive, the Idaho Army National Guard and EnviroSafe all pay Union Pacific for the use of the Boise cutoff. Tr. p. 65. While Mr. Bonner could not testify regarding the exact amount of revenues collected by Union Pacific from shippers for the use of the Boise cutoff, he testified that he believes Union Pacific has earned a profit with respect to that section of track and would continue to earn a profit in future years. Tr. p. 66. Finally, Mr. Bonner agreed that the abandonment of the Boise cutoff would essentially curtail Amtrack service to Boise heading west to east. Tr. p. 67. When questioned whether there has been any local traffic moved over the Boise cutoff in the last two years, Mr. Bonner testified as follows: If someone asked has any local traffic moved over this portion of the Boise cutoff in the last two years, would you say yes or no? I’d have to—what do you define as “local traffic,” traffic coming in or out of Boise that was loaded or unloaded at Boise? Is that the definition of local traffic? That’s usually the definition I would use of local traffic, yes. It is traffic that was freight that was loaded or unloaded and so as not to be in contempt, I would have to say there is a good chance that it could have, because the trains we detoured around the derailment and the bridge fire at Kuna in the last year could have had local traffic on them that sat out at Nampa and then was taken back to Boise. I can say in the last couple of years anyway, we have not had any trains that came over that branch and actually set out cars at Boise or picked up cars at Boise and took them back over that branch, but then Morrison-Knudsen, I keep saying that, Boise Locomotive, they build locomotives at Boise, they take them over that branch to test them, and then ship them on. The EnviroSafe cars, yes, they were local traffic, but Simco is located out by Orchard, so they didn’t come back into Boise, and the Army National Guard, those tanks were based at Gowen Field and they were taken out and loaded on rail cars on that track. Does that answer your question? Tr. pp. 72-73 (emphasis added). Mr. Bonner concluded that the Boise cutoff was still “used and useful.” Tr. p. 74. FINDINGS Our function in any abandonment proceeding, as defined in Idaho Code § 62-424, is to determine whether (1) the abandonment would adversely affect the area being served, (2) there is reason to believe that the closure would impair the access of Idaho communities to vital goods and services and market access to those communities, and (3) that the line has potential for profitability. If the foregoing criteria are met, then this Commission is directed under Idaho law to transmit a report of its findings to the Surface Transportation Board. For the reasons set forth below, and based on the record cited above, we find that all three of the foregoing criteria have been met and hereby recommend to the Surface Transportation Board that the proposed abandonment by Union Pacific of the Boise cutoff be disallowed. First, we note that the testimony provided at the evidentiary hearing in this proceeding, as well as written submissions received by this Commission, are nearly unanimous in opposition to the proposed abandonment. The undisputed evidence presented to us clearly reveals that the abandonment of the Boise cutoff, would adversely affect the area served by the track and would impair access of the local community to vital goods and/or services. The evidence presented indicates that the abandonment of the eastern section of the Boise cutoff would make it impossible for Boise Locomotive to test the locomotives that it repairs or rebuilds anywhere in the area. Second, the Idaho Army National Guard has taken the position that the abandonment would interfere with the Guard’s military operations and “would have a consequential effect on national security.” This, of course, is no small matter. While Union Pacific suggests a possible resolution to the National Guard’s concerns, no representative of the National Guard was present at the evidentiary hearing conducted by this Commission and the National Guard’s letter of May 13, 1999, is the last and only position taken by the National Guard before this Commission regarding the proposed abandonment. According to Union Pacific’s Manager of Terminal Operations, Gary Bonner, EnviroSafe, a local hazardous waste and treatment operation, has used the track proposed for abandonment to store hazardous materials that were being brought by EnviroSafe into its facility for unloading. Tr. p. 61. EnviroSafe has authority under a lease agreement with Union Pacific to store up to 80 cars on the track. Tr. p. 64. Consequently, abandonment of the eastern section of the Boise cutoff would impair the ability of EnviroSafe to temporarily store hazardous material prior to unloading at its facility. The evidence submitted during the evidentiary hearing was also conclusive that the area adjacent to the proposed abandonment is critical to the industrial development of Boise and the economy of the City as a whole. The abandonment of rail service to that area would certainly impair the ability of industrial and warehousing type businesses to access markets and to move or store product. Moreover, as Boise’s Mayor Brent Coles testified, the removal of the track in that area would essentially curtail rail service from Boise east to Mountain Home, Idaho and would terminate any possibility of restoring eastbound Amtrack service out of Boise. Finally, regarding whether the area of rail line proposed for abandonment has the “potential for profitability,” we refer simply to the testimony of Union Pacific’s manager, Gary Bonner, who testified that not only does the line have the potential for profitability, but that Union Pacific has in fact made a profit on this section of track in the last year. Based on the foregoing, we find that all of the statutory criteria found in Idaho Code § 62-424 have been satisfied and that we propose that the Surface Transportation Board deny Union Pacific’s request to abandon any portion of the Boise cutoff. We shall transmit a copy of our findings and our recommendation to the Surface Transportation Board. O R D E R IT IS HEREBY ORDERED that the proposed abandonment by Union Pacific of the eastern section of the Boise cutoff (1) would adversely affect the area of being served, (2) would impair the access of Idaho communities to vital goods and services and market access to those communities, and (3) that the line has the potential for profitability. We shall transmit a report of our findings to the Surface Transportation Board. THIS IS A FINAL ORDER. Any person interested in this Order (or in issues finally decided by this Order) or in interlocutory Orders previously issued in this Case No. UPR-R-99-2 may petition for reconsideration within twenty-one (21) days of the service date of this Order with regard to any matter decided in this order or in interlocutory Orders previously issued in this Case No. UPR-R-99-2. Within seven (7) days after any person has petitioned for reconsideration, any other person may cross-petition for reconsideration. See Idaho Code § 61-626. DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this _______ day of July 1999. DENNIS S. HANSEN, PRESIDENT MARSHA H. SMITH, COMMISSIONER PAUL KJELLANDER, COMMISSIONER ATTEST: Myrna J. Walters Commission Secretary vld/O:UPR-R-99-2_bp ORDER NO. 28094 1 Office of the Secretary Service Date July 9, 1999