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6-3001-11766-2 |
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF TRANSPORTATION
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In the Matter of the Application of Potlatch Corporation, 2201 Avenue B, P.O. Box 515, Cloquet, Minnesota 55720, for a Horizontal and a Vertical Clearance Variance Pursuant to Minn. Stat. § 219.47 (1996). |
FINDINGS OF FACT, CONCLUSIONS, AND RECOMMENDATION |
The above-entitled matter came on for hearing before Allan W. Klein, Administrative Law Judge, on July 28, 1998 in Minneapolis. The record closed at the conclusion of the hearing on that date.
Appearing on behalf of the Applicant, Potlatch Corporation, was David C. Pritchett, of the firm of Rudy, Gassert, Yetka, Doran & Prichett, 123 Avenue C, Cloquet, Minnesota 55720-1593.
Appearing on behalf of the staff of the Minnesota Department of Transportation was Ronald Mattson, Office of Freight, Railroads & Waterways, 395 John Ireland Boulevard, MS 470, St. Paul, Minnesota 55155.
Appearing on behalf of Public Participant United Transportation Union was John Smullen, its Minnesota Legislative Director, 3989 Central Avenue N.E., Suite 525, Columbia Heights, Minnesota 55421.
Minn. Stat. § 14.61 provides that the final decision of the Commissioner of Transportation shall not be made until this Report has been made available to the parties to the proceeding for at least ten days, and an opportunity has been afforded to each party adversely affected to file exeptions and present argument to the Commissioner. Exceptions to this Report , if any, shall be filed with the Commissioner of Transportation. Persons desiring to file exceptions should contact Bradley J. Larsen, Rail & Motor Carrier Proceedings, 395 John Ireland Blvd., MS 440, St. Paul, MN 55155 to ascertain the procedure.
Has the Applicant demonstrated that it is entitled to variances from the horizontal and vertical clearance requirements of Minn. Stat. § 219.46 (1996)?
Based upon all of the proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. Potlatch Corporation is dramatically expanding its facility in Cloquet. It is spending approximately $515 million, in part to expand its production of fiber from 500 tons per day to 1,000 tons per day. Potlatch is constructing a pulp drier and warehouse, which are the subject of this proceeding.
2. Potlatch proposes to ship dried pulp from Cloquet via rail cars, both box cars and gondola cars. The dried pulp will be formed into rectangular blocks, weighing about 20,000 pounds (10 tons) each. These blocks will be transported from the drier to a storage area in the same building, where they will be held for shipping. They will be loaded into railroad cars using a squeeze-type lifting truck. The railroad anticipates ultimately loading in the range of 30 car loads per day.
3. In order to move the blocks of dried pulp from the storage area into a railroad car, it will be necessary to use a dock plate. This plate is a heavy piece of metal, which is placed between the loading dock and the inside of the railroad car in order to allow the forklift truck to carry the block from the loading dock into the railroad car. The combined weight of the forklift and the block is a very substantial amount of weight being placed upon the dock plates.
4. Potlatch is seeking a variance from the statutory 8.5 foot horizontal clearance between the dock and the railroad cars in order to allow it to maintain a 7 foot distance. A standard box car is 11 feet wide, and so it is 5.5 feet from the center line of the rail to the outer edge of the box car. If the variance is granted so that the dock is located 7 feet from the center line, that would leave a 1.5 foot “gap” between the dock and the edge of the box car.
5. The top of the dock is 3 feet 10 inches above the ground level, so a physically fit person could scramble from the ground level to the dock in an emergency. There are also steps at the end of the dock closest to the entrance door, so scrambling would not be necessary for persons who could reach those steps.
6. Potlatch seeks the variance for two reasons. First of all, the extreme weight of the pulp block and the truck cause the dock plate to bounce as the forklifts are driven over the gap between the edge of the dock and the edge of the rail car. This up and down motion has been identified as a potential cause for back problems for employees who frequently encounter it as they load the cars. Secondly, in order to properly position the dock plate, it is sometimes helpful to move it into its general location using a truck, but then “fine tune” its location by hand. A number of employees will move the dock plate using their own brute strength. The ability of workers to move the plate is lessened if the plate is longer than if it is shorter. In other words, the shorter the plate, the easier it is to move. If the requested variance is granted the plate will weigh on the order of 200 pounds. But if the variance is denied, the plate will weigh about 500 pounds.
7. Potlatch had initially proposed a substantially larger variance. This would have left a very small clearance between the edge of the dock and the edge of the rail cars – on the order of 4 inches. Ex.3. This was unacceptable to the United Transportation Union. Prehearing negotiations between Potlatch and the Union caused Potlatch to change its plans, and propose a 7 foot clearance as opposed to the 5 foot 10 inch clearance which it had initially proposed. This would result in the 1.5 foot gap noted above. Compare, Ex. 1, attachment 4 with Hearing attachment 4.
8. The UTU is satisfied with a 7 foot clearance so long as a number of unique precautions are taken to avoid potential for injury. First of all, the union would require published rules prohibiting a crew member from entering the space between the cars and the dock. Secondly, the union seeks a special warning sign, to be located near the entrance but not on the wall indicating something like:
STOP. DANGER. NO OVERHEAD OR SIDE CLEARANCE AHEAD. PERSONS ARE NOT PERMITTED TO RIDE CARS PAST THIS POINT.
Finally, the union supports the Department’s standard practice of requiring a vertical “no clearance” sign (see Ex. 4) mounted on the side of the building at the entrance, with appropriate illumination. If those precautions are taken, the union withdraws its formal objection to the variance. Ex. 3.
9. Potlatch also seeks a variance from the 22 foot vertical clearance requirement of Minn. Stat. § 219.46 (1996). The proposed variance would allow for a 17 foot clearance from the top of the rail to the bottom of the entrance door.
10. Potlatch seeks the reduced clearance because it does not utilize any devices which would justify or necessitate a person’s riding on top of a car as it enters through the doorway. Indeed, if the proposed signage quoted above is erected, there should be no persons riding anywhere on the car as it goes through the doorway. Potlatch is using pre-cast concrete panels as part of a fast construction process. Potlatch has designed for a 17 foot clearance in order to minimize the construction costs of the building, allow for its fast completion, and, finally, in order to reduce heat loss when the door is open in the winter. Ex. 2 and testimony of Joan Cramer.
11. If the variance is granted, there will still be a more than two foot clearance between the top of a car and the bottom of the door. Since the agreed upon signage will prohibit persons from riding on the cars, and since there is no reason for anybody to break the rules (there is no reason for anybody to be on top of a car in order to connect a pipe or open a door as does occur in some other situations), the requested variance should not present any hazards to workers. There are some railroad cars, which are not going to be used in this facility as part of its expected operations, which do have a “high hand brake” which would expose a worker to danger. However, it is no anticipated that any such cars will be used at this facility, and thus their existence does not pose an impediment to achieving the efficiencies sought by Potlatch.
12. Potlatch has agreed, after consultations with the union and department staff, to take a number of steps to mitigate any hazards created by the requested variances. It has agreed to special signage, not only the standard signage outlined in the Department’s rules, but also special signage requested by the union. It has agreed to provide lighting for the signs. This lighting would either be left on continuously, or be automatically turned on in periods of darkness. Since employees are being forced to dismount from train cars before the cars go through the doorway, they will be forced to enter the facility through a regular door. Potlatch has agreed to light that door to avoid any hazard there. Potlatch has also agreed to provide continuous indoor lighting around not only this small door, but also in the dock area and the entire loading area. Potlatch has agreed to adopt internal rules prohibiting its employees from being in the area between the edge of the car and the edge of the loading dock and has also agreed to seek support of the Duluth and Northeastern Railroad to secure rules to protect railroad employees as well. Finally, Potlatch has agreed to paint the perimeter of the protruding dock section with safety yellow paint in order to further alert workers of the problem.
13. On June 15, 1998, the Department received Potlatch’s application for horizontal and vertical clearance variances. Then, on July 2, the Department received a revised application which contained a change in the dock height. Exs. 1 and 2.
14. On June 19, 1998, the Commissioner issued a notice of hearing in this matter, setting the hearing for July 28, 1998, and providing notice to the Duluth and Northeastern Railroad, United Transportation Union, the Brotherhood of Maintenance of Way Employees, and various personnel at Potlatch. The hearing did take place, as originally scheduled, on July 28, 1998.
Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1. The Department of Transportation has jurisdiction over the subject matter of this hearing.
2. The Department gave proper notice of the hearing, and has fulfilled all procedural requirements of law or rule, so that the matter is properly before the Administrative Law Judge.
3. The proposed construction of a loading dock and enclosure as part of the pulp drier and warehouse building will require both a horizontal clearance and a vertical clearance. Neither of the will create a condition unduly hazardous to employees of Potlatch or the railroad, so long as the work rule changes, the special signage, the standard signage, the lighting and the painting are all performed as outlined above.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
RECOMMENDATION
IT IS HEREBY RECOMMENDED:
1. That the Commissioner grant a variance to Potlatch Corporation from the horizontal clearance requirements of Minn. Stat. § 219.46 to allow the installation of spur track in the proposed pulp drier and warehouse building with a minimum horizontal clearance of 7 feet from the center line of the track, on the condition that Potlatch take the safety steps outlined above.
2. That the Commissioner grant a variance to Potlatch Corporation from the vertical clearance requirements of Minn. Stat. § 219.46 for the installation of a spur track in the proposed pulp drier and warehouse facility with a minimum vertical clearance of 17 feet from the top of the rail, on the condition that Potlatch take the safety steps outlined above.
3. Finally, that Potlatch be ordered to inform the Department when construction is complete and signage, lighting and other safety features have been installed, so that the Department my inspect them before cars are allowed to enter the facility.
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Dated this |
5th |
day of |
August |
1998. |
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ALLAN W. KLEIN |
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Administrative Law Judge |
Reported: Tape recorded, no transcript prepared.
NOTICE
Pursuant to Minn. Stat. § 14.62, subd. 1, the agency is required to serve its final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law.