COMMISSION WASHINGTON STATE DEPARTMENT ) OF TRANSPORTATION, ) ) Petitioner, )DOCKET NO. TR-961002 ) VOLUME 5 vs. ) Pages 555 - 761 ) BURLINGTON NORTHERN SANTA FE ) RAILROAD, ) ) Respondent. ) ----------------------------------) A hearing in the above matter was held on September 10, 1997 at 9:35 a.m., at 323 NE First Street, Winlock City Hall, Winlock, Washington, before Administrative Law Judge C. ROBERT WALLIS. The parties were present as follows: BURLINGTON NORTHERN RAILROAD COMPANY, by REXANNE GIBSON, Attorney at Law, 110 - 110th Avenue NE, Suite 607, Bellevue, Washington 98004. WASHINGTON STATE DEPARTMENT OF TRANSPORTATION, by DEBORAH L. CADE, Assistant Attorney General, 905 Plum Street, P.O. Box 40113, Olympia, Washington 98504. THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION STAFF, by ANN E. RENDAHL, Assistant Attorney General, 1400 South Evergreen Park Drive Southwest, P.O. Box 40100, Olympia, Washington 98504. Cheryl Macdonald, CSR Court Reporter APPEARANCES (Cont'd.) THE CITY OF WINLOCK, by MARK C. SCHEIBMEIR, Attorney at Law, 299 NW Center Street, P.O. Box 939, Chehalis, Washington 98532. I N D E X WITNESSES: DIRECT CROSS REDIRECT EXAM ZWIFELHOFER 559 YORK 561 562 ALLISON 567 568 STANLEY 570 585 593 593 MOTTICE 595 604 MILLMAN 611 627 BERG 629 WENTZEL 633 638 MCNELLY 640 650 BRADSHAW 658 MCPHERSON 661 690 717 WELLS 723 LOTTO 735 748 WHORTON 755 EXHIBITS: MARKED ADMITTED 23 695 723 24 757 758 P R O C E E D I N G S JUDGE WALLIS: Let us be on the record for our Wednesday, September 10, 1997 session in the matter of Commission docket TR-961002, the petition of the Washington State Department of Transportation against the Burlington Northern Santa Fe Railroad. We have in preliminary discussions this morning determined that the city's witness, Mr. Pennington, will be heard -- in the event that we are unable to complete the examination of witnesses, other witnesses, today, then we will consider rescheduling another session. If it's only Mr. Pennington then the parties are agreeable and have stated their agreement to arranging a teleconference hearing session so that his testimony may be presented. We do have several members of the public who are present this morning and have indicated that they wish to present testimony. We'll take that as our first order of business, and then we will resume with the city's case. So with that I'm going to ask Ms. Rendahl on behalf of the public to call the first public witness. MS. RENDAHL: I would like to call Zwifelhofer. Did I pronounce that correctly? Whereupon, KEN ZWIFELHOFER, having been first duly sworn, was called as a witness herein and was examined and testified as follows: DIRECT EXAMINATION BY MS. RENDAHL: Q. Apologize for the mispronunciation. A. That's all right. Everybody does it. Q. Would you please state your full name for the record and spell your last name for the court reporter. A. Ken, last name is Z W I F E L H O F E R. Q. And are you testifying today on your own behalf or on behalf of a business or organization? A. Business. Q. What business is that? A. Winlock Auto Supply. Q. Could you give the address for Winlock Auto Supply, please. A. 110 East Walnut. Q. Please go ahead and make your statement. A. Well, as far as a businessman goes, any time you alter the traffic I'm sure everyone knows that my business will decrease. When they do alter the traffic out front it goes down by 25 to 30 percent immediately, and it doesn't come back, so if this is done I know that I will have to lay off help, I know that, and I don't want to do that. And everybody has heard all the sides and the only thing I can just hope is that the DOT reverses their decisions and goes along with what the public really, really wants. Thank you. JUDGE WALLIS: What do you believe the public really wants? THE WITNESS: I think they -- I really think that they want it open, obviously, and maybe, I don't know, if they deter the trucks from going there, which they just about have now, the trucks, most of them can't really go through there anyway, and just leave that crossing open. It's very critical to this town. Man, it's the main crossing, and I think it's really devastating to the business people downtown, it really is, because that just goes right down the road to the other business, the grocery store. And everybody is going to -- everybody knows it's location, location, location, and if you've got a good spot and where the traffic is going to go to you you've got a good business. If you don't have it and if you're not against -- if you're way out in Pe Ell you're not going to do it, and then we got more unemployment. JUDGE WALLIS: Are there other questions? Appears not. Thank you very much for appearing today. MS. RENDAHL: The next witness is Milvon York. Whereupon, MILVON YORK, having been first duly sworn, was called as a witness herein and was examined and testified as follows: DIRECT EXAMINATION BY MS. RENDAHL: Q. Morning. A. Morning. Q. Would you please state your name for the record and spell both first and last name for the record. A. It's Milvon York. It's spelled M I L V O N T. York, Y O R K. Q. And are you here testifying this morning on your own behalf or on behalf of a business or organization? A. Well, just about everybody. Q. Why don't you give us your home address. A. 410 Southwest Canyon Loop, Winlock. Q. Thank you. Please go ahead and make your statement. A. Well, as most people in this town know that I have worked for the railroad for 29 years, and I heard some statements that was made that the railroad hadn't raised these crossings that much. Well, I'm the gentleman that raised these crossings in this town, and when we went in to raise the crossings, we would raise them anywhere from three to six inches above the normal grade. And I have overheard from officials that they was going to buy these crossings either by hook or crook, and I'm afraid that is what has happened, and that's just about what I've got to say for it. JUDGE WALLIS: Okay. Are there any questions? MS. GIBSON: I have a couple. CROSS-EXAMINATION BY MS. GIBSON: Q. I'm Rexanne Gibson and I represent Burlington Northern Santa Fe. Did you work for the Burlington Northern? A. I worked for the NP and the Burlington Northern. Q. What years? A. From 1966 until 1994. Q. And what was your position? A. Heavy equipment operator. Q. And did you work this territory that runs through Winlock? A. Yes, ma'am. Q. So that when you say you participated in work that raised the crossings three to six inches, are you saying that during the period of time that you worked from '66 to '94 you know that Walnut Street crossings was elevated three to six inches? A. Each time we done it, and that was approximately every two years. Q. So you're saying they kept adding three to six inches of ballast? A. Yes. Yes, ma'am. Q. So, in other words, if we went out there today we would find whatever that number is, three to six inches times you worked for, what, 32 years? A. 30 years, or 29 years, actually. Q. So if we take 29 years and take an average of like four inches every two years? A. About that, yes. Q. And whatever that number is then we should find that much ballast under the track today? A. You certainly would. Q. So if our surveyors when they were out there and they found that there's only 12 inches of ballast under the track, would you have an explanation for what might have happened since 1994? A. Well, I could take you down there to some of the old crossings where the ones that have been taken out and show you the concrete slab that was put in back in the '20s, and you could measure it from there forward up, and find out exactly how high the track is setting, the existing tracks are setting now. Q. I take it you haven't done any measurements yourself out at the Walnut crossing? A. No, I haven't. MS. GIBSON: Thank you, sir. CROSS-EXAMINATION BY MR. SCHEIBMEIR: Q. Mr. York, just by way of understanding on that last comment you made, is that the Olequa crossing? Which crossing are you talking about, the concrete slab? A. The one down on -- they took that crossing out after Mr. Burdelow was killed. Q. That would be the Hining? A. Yes, sir, that's the one I'm talking about. Q. So you're saying at what was the Hining crossing 75 years ago a concrete slab was installed at ground level? A. At the original ground level, yes, sir. Q. And so anything above that would be additional fill? A. Yes, sir. Q. Provided by the railroad? A. Yes, sir. Q. From your 29 years with the railroad was the elevations or the addition of fill consistent of both those crossings as well as further north at the Walnut Street crossing? A. Yes. We raised -- well, actually we started about a mile out of town and we would raise the tracks approximately once a year and they would dump ballast and we would raise it up at least two to three inches each time. Q. So it wasn't simply at the Hining crossing. It was throughout the -- A. Throughout the whole area. That was normal practice at that time. Q. Thanks. MS. CADE: I just have one question. CROSS-EXAMINATION BY MS. CADE: Q. Mr. York, I'm Deborah Cade. I'm from the attorney general's office and I represent the Department of Transportation. I was just wondering, over time, does that ballast tend to settle under the railroad tracks? A. Three quarters to one inch. Q. That's all the settlement that occurs? A. That's all the settlement there is. Q. Over what period of time? A. Over a year's period. MS. CADE: Thank you. MS. RENDAHL: I have no questions. JUDGE WALLIS: Mr. York, thank you for appearing. You're excused from the stand. THE WITNESS: Thank you, sir. MS. RENDAHL: Duane Allison. Whereupon, DUANE ALLISON, having been first duly sworn, was called as a witness herein and was examined and testified as follows: JUDGE WALLIS: Are you the same Duane Allison who appeared last night? MR. ALLISON: Yes, I am, Your Honor. JUDGE WALLIS: We could have just said that you continue under oath, but now you're doubly sworn to tell the truth. DIRECT EXAMINATION BY MS. RENDAHL: Q. Since we have the information for you from last night, why don't you just go ahead and make your statement. A. Well, I lived in this -- well, not in this town -- well, I lived in town for approximately five years but I was born and raised in Ryderwood, and I didn't get very far from home. I worked for Burlington Northern, well, started with Northern Pacific in 1957 or 58. I can't remember now. Started as a section hand in Vader. At that time we still had the steam trains running. And after working there I went in the service and when I come back out I started back to work at the railroad. After a couple of years working as a gandy dancer -- Q. Would you spell that? A. Gandy G A N D Y D A N C E R. Q. Thank you. A. That was the old terms they named us. JUDGE WALLIS: For a hand on the section crew? THE WITNESS: Yeah. A. I went to work, got a bid as a machine operator, and I was a lead machine operator of a surfacing crew for a few years. I know for a fact that this crossing -- well, all these crossings in town has been raised over five times. Q. Is that the extent of your testimony? A. No. Q. Okay, sorry. A. I don't think any of these crossings should be actually closed. If they're going to be closed they should have an alternative route. That would be even safer. There's nothing wrong with the safety of this crossing that they're trying to close except it is too high now, but that's from being raised for so many years. Our highway down here hasn't been raised but the railroad track has. That's about all I got to say. MS. RENDAHL: I have no questions. MS. CADE: Nothing. CROSS-EXAMINATION BY MS. GIBSON: Q. How many inches do you think the crossing has been raised? Last night I think you said four times, so it's four or five times that you think it's been raised? A. Yeah. Q. How many inches, do you have any idea? A. Over the total amount I would say approximately 18 to 21 inches total. Q. So those tracks would have 18 to 21 inches of ballast under them at least now, you think? A. Approximately, yes. Q. Are you currently working? A. No, I'm not. I'm retired. I'm a retired truck driver. When I left the railroad I went to work at Weyerhaeuser and I drove log truck over the top of these crossings since I left the railroad. Q. Did you ever drive any with low clearance over Walnut Street? A. No. Q. You knew better than to do that? A. Well, yeah, because the crossing wasn't raised as high as it is now. But with a log truck you still have plenty of clearance. I've seen chip trucks go by there even loaded, but the one that got stuck down there is because they probably overloaded it,either that or he went across the crossing wrong. MS. GIBSON: Mr. Allison, I don't have anything else. Thank you. JUDGE WALLIS: Thank you for appearing. MS. RENDAHL: Any other members of the public who wish to testify? JUDGE WALLIS: It appears not. Thank you all for appearing this morning. At this point we will conclude the public session and we will resume hearing evidence presented right now from the city. Mr. Scheibmeir. MR. SCHEIBMEIR:. Thank you. Next city witness would be Fred Stanley. Whereupon, FRED STANLEY, having been first duly sworn, was called as a witness herein and was examined and testified as follows: DIRECT EXAMINATION BY MR. SCHEIBMEIR: Q. Morning, Mr. Stanley. Would you please state your full name. A. Frederick David Stanley. Q. What is your address? A. 188 Wirta Road. Q. What is your employment? A. I'm the transportation supervisor for the Winlock School District. JUDGE WALLIS: Could you spell the name of the road? THE WITNESS: It's W I R T A. JUDGE WALLIS: Thank you. Q. You then explained that you're the transportation director for the Winlock public school district? A. That's correct. Q. How long have you been employed with the Winlock school system? A. Three years. Q. And what is your employment background? A. Prior to that I drove trucks for ten years. Q. As a professional truck driver? A. As a professional owner/operator and then as just a hired truck driver. Q. What's your educational background? A. High school. Q. What are your current duties as transportation director for the school system? A. Well, they're many and varied. Q. Tell us about them. A. I'm in charge of scheduling the routes, setting the routes up, hiring the drivers, maintaining the buses, dealing with the student discipline on the buses and the parents. Just about everything to do with the buses. Q. Tell me a little bit about the delivery of students to the Winlock schools. How many Winlock students arrive to school by public bus? A. Well, we haven't done our count this year. Last year we had 557, I believe. Q. Would you estimate this year is going to be relatively similar? A. It's going to be similar. It's tended to grow 10 to 15 per year since I've been there. Q. Is the Winlock School District showing a steady increase in number of students? A. Yes, I would say so. Q. So of those 560 students, where are they going? A. I didn't think to divide the numbers up, which ones are going to high school, which ones are going to the grade school. Q. We don't need exact figures but just give us a general sense of where you're shipping these students. A. Probably half to the grade school or more than half. I would say about two thirds would be going to the grade school. Q. And I think the point has been well made, but where is the Winlock elementary school located? A. What's the name of the street? I don't remember the name of the street. It's two blocks west of the Fir Street crossing. Q. So it's on the west side of the railroad tracks? A. Right. Q. And then your other school facility is the junior high/high school and where is it located? A. It is on North Military Road in the county. It's approximately two and a half miles from the grade school. Q. How many buses do you have available to transport those children? A. We are currently using ten buses daily. Q. And is it -- let me break my questions into times of the day, if I can. I would like to address the issue relating to mornings and delivery of student to schools. Under the current scenario of the two railroad crossings, how do you get or how many of your buses go by way of Walnut in the morning and how many go by way of Fir? A. It would depend on which direction -- which direction they were traveling. If they're coming from the east side I probably have nine that use the Walnut Street crossing. If they're coming from the west side traveling east, boy, probably four or five. Q. So obviously the math continues out to more than ten and that's because there's duplication; is that right? A. Right. Q. So maybe we can -- to avoid any confusion that might have been raised by that, what's the average number of times a bus will cross over the railroad tracks on a morning? A. Probably an average of three. Q. And if you were to -- if I were to ask you in terms of percentage, how much percentage of that railroad crossing activity is occurring on Walnut Street as opposed to Fir Street? A. Probably 70, 75 percent. Q. Is it fair to then conclude that if Walnut was closed that the amount of school buses on Fir would at least triple? A. Oh, definitely. Q. Is congestion a problem in the mornings? A. It has not been at this point. Q. You have concerns about congestion if Walnut was not available to you? A. Yes, I do. Q. What concerns do you have? A. Main concern would be congestion. I have a concern if the school bus is going west towards the grade school at which time if there is more than one car at the stop sign, the big bus does not clear, if there's two cars sitting there they would not clear the tracks with the rear of the bus, so they would have to sit on the west -- or the east side of the tracks and wait for the car, and I'm afraid that that's going to create stress among the drivers waiting for the bus to move wondering what they're doing setting there and they're going to go around the bus and the bus is going to wind up sitting there. Q. Now, is that a problem that exists at Walnut today? A. No. Q. And why not? A. Well, going from east to west the best visibility in the town, the safest crossing is Walnut Street because you have the best line of visibility, seeing both directions. So they're not there very long, they just pull up, do their look, listen and move on. Q. Well, from -- apart from congestion, do you have concerns as to how this might impact the delivery of school services then if you're having trouble delivering students? A. The problem would come in should the train come into town switching cars to the two locations here in town, which happens almost daily at one point or another. Should that time fall when the buses are running and that crossing was closed then we would have an economic impact for the buses sitting and waiting, not to mention the phone calls we get from parents when students aren't home on time. Q. I want to address the mornings first and then I will get to the afternoons in a second. So as to mornings, are you on a fairly rigid time schedule to get those students to their classes? A. Yes. We have a pretty large number of students that are low income that receive breakfast and stuff at the school, so if they're not there in time in the morning they don't get to have breakfast, and some of them wouldn't get to eat then until lunch time. Q. Before I get to the afternoon schedule, I want to talk about children that don't take the bus. Do you have an approximate number of total students in the Winlock school district? A. Total students in the whole entire district? Q. Yes. A. I believe it's slightly over 800. Q. Doing the math, then, does that produce -- and, by the way, when we spoke earlier the number you gave me when you were in your office was 840. Is that a pretty -- you think that's an exact -- A. It's probably pretty close. It goes up and down almost daily. Q. So if I've got that number, do you think that to be fairly correct? A. I would say it was fairly correct, yes. Q. Doing the math then, would there be slightly less than 300 students who get to school by means other than public transportation? A. Yes. Q. Some of those obviously will drive themselves if they're high school students or their parents? A. Or they also have parents that drive. We have quite a few walkers also. Q. Do you have an estimate of the number of students who walk to school? A. I sure wouldn't have it anywheres near an exact figure. Q. Is it a significant number? A. I would say yes. Q. Can you give us -- I won't hold you to an exact number but can you just give a sense of magnitude, a general number of -- A. In the grade school vicinity I would guess there's probably -- well, it depends on the weather also, but as many as 50. Q. I take it very few are walking to the high school? A. Right. Q. It's not a walking distance unless you're the farm next door? A. Yes. Q. So of those kids who walk to school it's the grade school kids who walk to school? A. Right. Q. What's the neighborhood they're most likely to walk from to get to that school? A. We have a large population of students that live on the trailer park off of 603 going north out of town. It's across from one of the mills, Shaker Town. They walk. There's a few walkers. We have quite a large population down on the Front Street, both sides of the tracks, and Fir Street area. Q. So if you could just explain on the map. You're being handed Exhibit 18, I believe. If you could help those who are not familiar with the town, identify that neighborhood you just spoke to. A. Who am I showing to? Q. To everyone. A. This area here, I believe this is south (indicating). Q. Yes. A. Down in here (indicating) along these streets, First and Front, and then Front Street on this side of the tracks going clear down to Campbell. Q. Now, since we're keeping a transcript of these proceedings, we'll need to transform what you've just explained into some directions for someone who might read this transcript. Is what you identified, that's the area south of downtown and east of the railroad tracks? A. Yeah, east, and there's one road on the west. Q. Is the primary portion being east of the railroad tracks? A. Yes. I would say it was. Q. Fred, how does all of that area funnel toward the grade school? What's the channel point for the pedestrian traffic? A. Walnut Street crossing. Q. If that Walnut Street crossing was closed, do you have concerns about the pedestrian or the children who would be walking to grade school? A. Yes, I do. Q. What concerns do you have? A. Well, we have a few students in the school district that have slight hearing problems. Should they close the -- take the crossing out, the crossing arms I assume would be removed, you're not going to keep the kids from walking across the tracks. So they're going to just take it across the tracks and just walk to school. Q. Are you concerned that they won't take the extra six blocks to go down to Fir and back? A. No. I know they won't. Q. I want to then address the afternoon schedules. Is timing more or less important from a delivery of that child in the afternoon than the morning? A. I would say it's at least equally important because parents have their schedules also, and some of them may work and they're waiting for their student to get home, and the bus is late, it messes their schedules up or they've arranged for day care or whatever. Q. If I was to rephrase that, is it fair to say that in the morning it's the schools' problems but in the afternoon it's hundreds of parents' concerns? A. Right. Q. If you're not arriving immediately -- well, first of all, do you advise parents when they should expect their children to be home? A. Yes. Whenever someone phones me for a bus stop I try to give them an approximate time, and the times, we try not to vary more than a couple of minutes. Q. And if you vary more than a couple of minutes what typically happens? A. Sometimes the driver will call me if it's one student in particular -- or you know how the scheduling goes, but I will try to notify the parents by phone before they get real worried and then call the school. Q. Has it been your personal experience that you begin to receive phone calls from parents relatively quickly after that designated time? A. Yes, within five minutes. Q. On the way home from school, what is the routes as opposed to what they're like in the mornings? A. They're very similar. I would say the buses probably do approximately the same amount of crossings. Q. Would it be the approximate three per bus then? A. Yes. Q. And, again, are the percentages of traffic on Walnut versus Fir the same, 70/30 percent? A. I would say yes. Q. Is that couplet system or the two-way system important to the flow of your buses and the routes that they take? A. Probably important but not critical. Q. Is it more critical simply to have a safe intersection? A. Yes. Q. Out of all the intersections in Winlock what do you regard as the safest from a school bus safety perspective? A. Boy, that depends on which way you're going. If you're traveling west then the Walnut Street crossing is. If you're traveling east then probably the Fir Street. Q. So are they both important depending on your perspective? A. Correct. Q. Is it practical to consider Campbell as an alternate for all the school bus crossings? A. I would say no. Q. And why not? A. We have enough buses on the north of town that to funnel everybody clear to Campbell Street on that narrow road I think we're asking for traffic accidents, and not to mention the increase in time for the bus drivers, economic and the school. Q. If Fir is blocked at the railroad crossing switching a train, and one of your buses is on its Fir route, can that bus back up and take another route? A. The state has not forbidden the buses to back up, but it's very heavily discouraged. It's hard to see right behind. There could be a little car right behind the bus. There could be somebody walking behind the bus and you can't see them. There's a lot of reasons. Q. Let's assume for a moment that Walnut would be closed and you're left with Fir for your access and that there's a blocking, a train blocking the access. Are your buses going to have any alternatives other than waiting? A. If they get to the tracks they're just going to have to wait. We have two-way communication that if that crossing was closed then they could possibly reroute to save a little time. Q. Does the school district have concerns over costs associated with these potentials delays and impacts? A. I would say it could. It could impact us. I would say yes. Q. These ten bus drivers, what's the wage they're receiving? A. Probably average 11-something an hour. Q. And are they on a strict hourly basis? A. Yes. Q. So if the buses are delayed is all the extra delay time at the expense of the school district? A. Yes. Q. Is this a school district with much excess funds at its disposal? A. I