2-3001-9599-2

D-5921/R-4349

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESOTA TRANSPORTATION REGULATION BOARD

 

In the Matter of Sam Miller Bag Company:  Application for Variances from the Standard for Vertical and Horizontal Clearances

FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDED ORDER

            The above-entitled matter came on for hearing before Bruce D. Campbell, Administrative Law Judge from the State Office of Administrative Hearings on May 23, 1995 in South St. Paul, Minnesota.

            Appearances:  Craig Kupritz, P.O. Box 581398, Minneapolis, Minnesota 55458-1398, appeared on behalf of the Petitioner, Sam Miller Bag Company (Petitioner or Company); and Ronald F. Mattson, Minnesota Department of Transportation, Office of Waterways and Railroads, 925 Kelly Annex, 395 John Ireland Boulevard, St. Paul, Minnesota 55155, appeared on behalf of the staff of the Minnesota Transportation Regulation Board.  No personal appearance was made by the United Transportation Union or the Burlington Northern Railroad Company (Railroad).  The United Transportation Union, however, provided written evidence for the record expressing a lack of objection to the requested variances.

            The record herein closed on May 23, 1995, at the conclusion of the contested case hearing.

            Notice is hereby given that, pursuant to Minn. Stat. § 14.61, and the Rules of Practice of the Transportation Regulation Board, and the Rules of the Office of Administrative Hearings, exceptions to this Report, if any, by any party adversely affected must be filed within 20 days of the mailing date hereof with the Transportation Regulation Board, Minnesota Administrative Truck Center, 254 Livestock Exchange Building, 100 Stockyards Road, South St. Paul, Minnesota 55075.  Exceptions must be specific and stated and numbered separately.  Proposed Findings of Fact, Conclusions and Order should be included, and copies thereof shall be served upon all parties.  If desired, a reply to exceptions may be filed and served within ten days after the service of the exceptions to which reply is made.  Oral argument before a majority of the Board may be permitted to all parties adversely affected by the Administrative Law Judge’s recommendation who request such argument.  Such request must accompany the filed exceptions or reply, and an original and five copies of each document must be filed with the Board.

            The Minnesota Transportation Regulation Board will make the final determination of the matter after the expiration of the period for filing exceptions as set forth above, or after oral argument, if such is requested and had in the matter.

            Further notice is hereby given that the Board may, at its own discretion, accept or reject the Administrative Law Judge’s recommendation and that said recommendation has no legal effect unless expressly adopted by the Board as its final order.

STATEMENT OF ISSUE

            The issue to be determined in this proceeding is whether variances should be granted pursuant to Minn. Stat. § 219.47, subd. 1 (1994), for horizontal and vertical obstructions to be constructed by Petitioner at its Minneapolis facility which would encroach on the clearances required by Minn. Stat. § 219.46 (1994). 

            Based upon all of the proceedings herein, the Administrative Law Judge makes the following:

FINDINGS OF FACT

1.        By a letter Petition dated March 31, 1995, and filed with the Transportation Regulation Board on April 3, 1995, Sam Miller Bag Company seeks variances from the standard for vertical height and horizontal width clearances required by Minn. Stat. § 219.46 (1994).  The variances required are stated at page 2 of the Petition and consist of vertical clearance obstructions at the inside top of the entry door to be constructed at the Minneapolis facility of the Petitioner and vertical clearance obstructions on portions of the ceiling of the additional warehouse building to be constructed.  The minimum clearance of some portions of the warehouse ceiling will be 21 feet two inches from the top of rail.  A horizontal clearance variance will also be required since the horizontal clearance at the door opening to be constructed is seven feet 10 inches from the track centerline on the south side of the track due to the horizontal protrusion of the door hardware and operating mechanism.  The other side of the track, at the door, exceeds the eight foot six inch horizontal clearance required by Minn. Stat. § 219.46 (1994).

2.        On April 7, 1995, the Transportation Regulation Board served a Notice of Hearing on the Petitioner, the United Transportation Union, and on counsel for the Burlington Northern Railroad.  The Department of Transportation also received a copy of the Notice of and Order for Hearing. 

3.        Neither the Burlington Northern Railroad Company nor the United Transportation Union appeared at the hearing.  The United Transportation Union did, however, provide for the record Exhibit I, a letter from George R. Clegg, Jr., Chairman and State Legislative Director of the Union, to the Administrative Law Judge stating that the Union had no objection to the requested variances if appropriate lighted no-clearance signs were posted at the Company’s facility.  The Burlington Northern Railroad Company has been provided with copies of the schematics for the proposed construction.  In oral discussions with the Petitioner, it has approved the construction and proposed safe operating procedures.

4.        Sam Miller Bag Company owns a warehouse facility at 845 East Hennepin Avenue, Minneapolis, Minnesota.  The location of the facility is more particularly depicted in Exhibit A, vicinity map.  The facility is an existing warehouse building leased to and operated by Sequoia Supply Company.  Sequoia Supply Company distributes lumber and building supplies.

5.        Sam Miller Bag Company proposes to construct a 15,372-square-foot steel building as an addition to the existing warehouse.  The new construction will be along the north side of the current facility, as shown in Exhibit B. 

6.        Currently, approximately 400 feet of existing track run in an east/west direction along the northerly side of the building outdoors.  The 400 feet of outdoor track has a horizontal clearance of eight foot six inches from track centerline to the existing building.  The current outdoor track is shown in Exhibit B2, Site Photo. 

7.        The new building construction cannot exceed the heights which result in the vertical clearance encroachments previously discussed, due to the pre-existing height conditions at the adjacent warehouse and the need to drain water from the roof of the existing building into an appropriate ditch and catch basin. 

8.        If the existing track were relocated further to the north in an attempt to minimize or eliminate the horizontal clearance encroachment at the south side of the proposed entry door on the new construction, the increased distances would result in less safe unloading operations because of the need for using longer dockplates.  With longer dockplates, there is a greater possibility of dockplate failure and unloading euqipment going over the side of the plate.  The existing track is eight foot six inches from track centerline to the wall of the current building.  The necessary door attachment hardware produces a seven foot ten inch horizontal clearance from track centerline to the inside of the door on the south side of the track at the door aperture. 

9.        Sequoia Supply receives rail cars of lumber.  The current outdoor railroad dock is subject to adverse weather conditions, particularly in the winter, which can pose a hazard to Company employees engaged in unloading operations.  Besides providing a safer work environment for Company employees, the enclosure of the rail docking area will also result in less damage to the lumber being unloaded.

10.     The indoor docking facility will also provide a safe, level platform from which Company employees can move the cars as they are unloaded.  Currently, they must move the cars by extending a chain through the warehouse door opening, four feet above the tracks.  The indoor railroad docking facility will also provide the Railroad crew with a safe, clean path to use in spotting the cars.  Currently, because the docking facility is outdoors, there is a potential for ice and snow drifts to build up along the tracks and for water to accumulate very near the tracks. 

11.     Sequoia Supply is in the business of distributing lumber and building supplies.  It receives approximately five loaded rail cars a week from Burlington Northern, approximately one per day.  The Railroad must also remove empty cars.  All spotting of cars and removal of empty cars is performed by the Burlington Northern Railroad Company.  The tenant, Sequoia, may move cars away from the unloading doors, but only Burlington Northern will be allowed to remove cars from the facility itself. 

12.     When cars are removed, the engine moves at a very slow rate of speed.  No car entering the building will exceed 17 feet in height.  The height of the door to be constructed for rail car access is 20 feet.  Engineering considerations preclude increasing the height of the door.

13.     It is against Burlington Northern operating rules to allow railroad workers to ride the tops of railroad cars that are being spotted or removed.  Moreover, pursuant to joint operating rules negotiated between the Railroad and Sequoia, Railroad employees will not be allowed to ride the sides of cars being spotted or removed. 

14.     The Petitioner proposes to place a stop sign approximately 100 feet from the building.  Moreover, in addition to lighted appropriate no-clearance signs, as shown in Exhibit E1, the Petitioner will have a set of operating instructions for Railroad personnel and a rail switching signal, as shown in Exhibit E1, which only warehouse personnel may operate.  That switching signal will convey to the engineer if it is safe to move cars.  The Petitioner will post on the doorway a set of operating instructions, similar to those contained in Exhibit J, which will instruct Railroad personnel in safe operating procedures.  The Petitioner will also construct walkways for Railroad personnel to use in spotting and removing cars.  Access to the building will only be allowed through a pedestrian doorway shown in Exhibit 1.  That doorway will be locked at all times.  A lock box containing the appropriate key will be placed on the pedestrian doorway.  Burlington Northern personnel will have a key to the lock box.  The operating door, however, will be alarmed so that it can only operate during posted hours. Exhibit J. 

15.     The Petitioner has stipulated to the placement of appropriate lighted no-clearance signs as shown in Exhibit E1 on the outside of the building at the rail entry door. 

16.     The Petitioner also stipulated to the inspection by the Transportation Regulation Board, or its designee, of the completed construction, including the lighted no-clearance signs. 

17.     In conversations with the Burlington Northern Railroad Company, the Railroad has supported of the indoor rail dock the Company proposes to construct.  The Railroad’s suggestions for safe operations were incorporated into the proposal presented to the Board and in Exhibit J. 

Based upon foregoing Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS

 

1.     The Transportation Regulation Board has jurisdiction over the subject matter of the hearing.

2.     The Board 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.     Enclosing the existing 400 feet of railroad track at the Petitioner’s Hennepin Avenue facility, will result in horizontal and vertical clearance violations of Minn. Stat. § 219.46 (1994). 

4.     Compliance with the statutory vertical clearance requirements would be unreasonable since the height of the new construction must conform to that of the existing building for the reasons discussed in the Findings.  Moreover, the horizontal clearance variances cannot be eliminated without causing a significant increased hazard in the unloading operations. 

5.     The horizontal and vertical encroachments discussed in the Findings will not create a condition unduly hazardous to any person or the employees of the Railroad, if appropriate no-clearance signs and lighting are installed.  Rail cars are spotted and removed from the track by an engine traveling at an extremely low rate of speed.  The method of operation proposed by the Petitioner ensures that no railroad employees will encounter the clearance restrictions while on the railroad cars that are being moved.  Finally, enclosing the rail dock unloading area protects it from the hazards created by operations in inclement weather. 

6.     As a consequence of Conclusions 4-5, supra, any danger to Railroad employees or employees of the facility could be averted by posting warnings signs as shown in Exhibit E1 and the installation of appropriate permanent lighting.

7.     As a consequence of Conclusions 1-6, supra, it is appropriate to grant variances to the Petitioner for the maintenance at its Minneapolis facility of the horizontal and vertical encroachments specified at page 2 of its Petition, if the Petitioner posts no-clearance signs on the new construction, as shown in Exhibit E1 and illuminates those signs during the hours of darkness by permanently affixed automatic lighting.

 

THIS REPORT IS NOT AN ORDER AND NO AUTHORITY IS GRANTED HEREIN.  THE TRANSPORTATION REGULATION BOARD WILL ISSUE THE ORDER OF AUTHORITY WHICH MAY ADOPT OR DIFFER FROM THE FOLLOWING RECOMMENDATIONS.

 

            It is the Recommendation of the Administrative Law Judge to the Board that it issue the following:

ORDER

IT IS HEREBY ORDERED that the Petition of Sam Miller Bag Company for variances from the statutory horizontal and vertical clearance requirements for encroachments stated at page 2 of its Petition at its Minneapolis facility is GRANTED, contingent upon compliance with the following requirements: 

1.         The Petitioner shall install warning signs showing a lack of vertical and horizontal clearance at the rail entry doorway on the new construction, as shown in Exhibit E1.

2.         The Petitioner shall provide permanent automatic lighting for the no‑clearance signs which shall be kept continuously illuminated during the hours of darkness.

3.         The Petitioner shall notify the Transportation Regulation Board upon completion of the installation of the signs and lighting for the purpose of inspection.

 

Dated this 22nd of June, 1995.

 

                                                                             

BRUCE D. CAMPBELL

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.