of'Cof the Petition of'C.SX Transportation, Inc. to Close to Vehicular Traffic the County Road...

IN THESUPREME COURT OF OHIO

Trustees of Claridon 'Township,Marion County, Ohio

Appellant,

V.

The Public Utilities Commission of Ohio,

Appellee.

Case No. 10-0127

Appeal from the Public UtilitiesCommission of Ohio, In the Matterof the Petition of'C.SXTransportation, Inc. to Close toVehicular Traffic the County Road205/Ulsh Road Grade Crossing(262-061N), Located in ClaridonTownship, Marion County; Ohio,Case No. 09-125-RR-UNC

MEMORANDUM IN OPPOSITION TO MOTION FOR STAYSUBMITTED ON BEHALF OF

THE PUBLIC UTILITIES COMMISSION OF OHIO

Brent W. Yager (0033906)Marion County Prosecutor134 East Center StreetMarion, Ohio 43302

Counsel for Appellant Trustees ofClaridon Township, Marion, County,Ohio

R. Leland Evans (0006833)(Coimsel of Record)Megan E. Bailey (0081167)13orter Wright Mon•is & Arthur, LLP41 South IIigh StreetColumbus, Ohio 43215614.227.2000 (telephone)614.227.2100 (fax)revansâorterwright.commbaileyna,porterwri h t.com

Richard Cordray (0038034)Ohio Attorney GeneralDuane W. Luckey (0023557)Section ChiefWilliam L. Wright (0018010)Counsel of RecordAssistant Attorneys GeneralPublic Utilities Section180 East Broad Street, 6`h FloorColumbus, Ohio 43215-3793614.466.4397 (telephone)614.644.8764 (fax)duane luckey^r^puo state.oh.uswilliam.wri htnpuc.state.oh.us

Counsel for Appellee,The Public Utilities Commission^.rf Ohio

Counsel for Movant for Intervention asAppellee CSX Transportation, Inc.

, _ ._^,^..•^;

TABLE OF CONTENTSPage

"I'ABLE OF AU1'HORI"1'IES ................. ............................................................................. ii

INTROD U C'TION ............................................................................................................... 1

STATEMENT OF FACTS AND CASE ............................................................................. 2

ARGUMEN"1' ...................................................................................................................... 4

Proposition of I,aw No. I :......................................................................................... 5

The 1'ownship's failure to fulfill the statutoiy prerequisites ofR.C. 4903.16 is fatal to its request for a stay order.Consumers' Counsel v. Pub. Util. Comm'n, 61 Ohio St. 3d396, 403, 575 N.E.2d 157, 162 (1991) .......................................................... 5

CONCLUSION ................................................................................................................... 7

CER'ITFICATE OF SERVICE ............................................................................................ 9

APPENDIX PAGE

Ohio Rev. Code Ann. § 4903.10 (West 2010) ................................................................... I

Ohio Rev. Code Ann. § 4903.15 (West 2010) .................................................................... 2



Ohio Rev. Code Ann. § 4907.474 ( West 2010) .................................................................. 3

Ohio Rev. Code Ann. § 4907.475 (West 2010) .................................................................. 4

In re Petition ofCSXTransportation, Case No. 09-125-RR-UNC (Opinionand Order) (October 28, 2009) ............................................................................................ 6

In re Petition of CSX Transportation, Case No. 09-125-RR-UNC (Entiy onRehearing) (December 16, 2009) ...................................................................................... 19

In re Petition of CSX Transportation, Case No. 09-125-RR-UNC(Transcript) (May 4, 2009) (EXCERPTS) ........................................................................ 23

In re Petition of CSX Transportation, Case No. 09-125-RR-UNC(Transcript) (August 12, 2009) (EXCERPTS) .................................................................. 27

Diagnostic Review 'I'eam Survey (Septcmber 23, 2008) ..... ............................................. 38

i

TABLE OF AUTHORITIESPage(s)

Cases

Ameritech Ohio v. Pub. Util. Comm'n, 79 Ohio St. 3d 1473, 682N.E.2d 1002 (1997) ................................................................................................. 5

City ofColurnbus v. Pub. Util. Comm'n, 170 Ohio St. 105, 163 N.E.2d167 (1959) ............... ............................................................................................ 5,6

Consumers' Counsel v. Pub. Util. Comm'n, 107 Ohio St. 3d 1679,839 N.E.2d 401 (2005) ............................................................................................5

Consumers' Counsel v. Pub. Util. Comm'n, 109 Ohio St. 3d 1492,848 N.E.2d 856 (2006) ............................................................................................4

Kazmaier Supermarket, Inc. v. Toledo Edison Co., 61 Ohio St. 3d147, 573 N.);.2d 655 (1991) ....................................................................................2

Keeo Industries, Inc. v. Cincinnati & Suburban Bell Tel. Co., 166Ohio St. 254, 141 N.i?.2d 465 (1957) .....................................................................6

Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921 (D.C. Cir.

1958) .......................................................................................................................4

Statutes

Ohio Rev. Code Ann. § 4903.10 (West 2010) ............................................................4

Ohio Rev. Code Ann. § 4903.15 (West 2010) ............................................................ 5

Ohio Rev. Code Ann. § 4903.16 (West 2010) ........................................................5, 6

Ohio Rev. Code Ann. § 4905.04 (West 2010) ............................................................1

Ohio Rev. Code Ann. § 4907.474 (West 2010) ..........................................................1

Ohio Rev. Code Ann. § 4907.475 (West 2010) ..........................................................1

ii

TABLE OF AUTHORITIES (cont'd)Page(s)

Other Autliorities

In re Petition of CSX Transportation, Inc., Case No. 09-125-RR-UNC(Entry on Rehearing) (December 16. 2009) ...........................................................4

In re Petition of CSX Transportation, Inc., Case No. 09-125-RR-IJNC(Opinion and Order) (October 28, 2009) ................................................................4

m

INTRODUCTION

The General Assembly has vested the Public Utilities Commission of Ohio

(Commission) with broad and comprehensive authority to protect the traveling public at

Ohio's more than 6,100 public grade crossings statewide. Ohio Rev. Code Anti. §

4905.04 (West 2010), Appendix at 2-3. This authority expressly empowers the Coinmis-

sion to close public grade crossings where the facts warrant. See, e.g. Ohio Rev. Code

Ann. §§ 4907.474 and 4907.475 (West 2010), Appendix at 3-4, 4-5. Here the Cominis-

sion, after considering evidence from on-site investigations and from both public and

adjudicatory hearings, ordered closed the highway-railroad-grade crossing located on

Ulsh Road, a rural, lightly-used township road in Marion County. The Ulsh Road grade

crossing is one of the most dangerously ranked crossings on the federally approved

hazard rating index.

Claridon Township (Appellant or Township) now seeks to delay this closure by

requesting a stay of the Commission's order. Peiversely, the Township seeks to perpe-

trate a highly dangerous situation, rather than to abate it, simply because the crossing has

been "open for decades." The Township has even failed to allege Commission error, let

alone demonstrate actual harm or prejudice needed to support the grant of tlle extra-

ordinary relief that it seeks. This case presents a prime example as to why regulation of

crossing safety must be consistent statewide and petitions to close grade crossings

evaluated as objectively as possible rather than be decided purely by local parochial

interests. To this end, the General Assembly has adopted a comprehensive statutory

process and delegated broad authority to the Commission to implement it. In so doing, it

has decreed that grade crossing safety is a matter of paramount importance for the state

generally and the Commission specifically to address. See Kazmaier Supermarket, Inc. v.

Toledo Edison Co., 61 Ohio St. 3d 147, 573 N.E.2d 655 (1991).

The Township's stay request should be denied.'

STATEMENT OF FACTS AND CASE

Ulsh Road is a narrow and lightly traveled rural township road in Marion County.

It was described as a "short cut," "cut through" and a "nice side road" in the record

below. 'I'r. I at 16, 32-33, Appendix at 24, 25-26: Tr. II at 38, Appendix at 30. Only trvo

houses are located on this approximately one-niile stretch of secondary road. The subject

public grade crossing has ranked, under the objective federally-approved formula2

applied by the Coininission as high as the 12"' most dangerous crossing out of Ohio's

nearly 6,100 public at grade crossing. Tr. II at 16, Appendix at 28. Factors contributing

to the ranking include, among other things, its history of accidents, a "humped" roadway

approach and the severe angle at which the railroad tracks of CSX Transportation, Inc.

(Railroad) intersect the road, making it dif-ficult for approaching motorists to safely navi-

2

Counsel for the Commission only became aware of this appeal and theacconipanying motion to stay on January 27, 2010, and then only indirectly via contactfrom the Railroad's attorney. The Township's motion was not accompanied by asupporting menioranduni, and thus the Movant has stated no grounds supporting itsrequest for extraordinary relief.

The formula approved by the Federal Railroad Administration considers suchobjective, and easily discernible factors as daily vehicle traffic, train traffic, sightdistances, presence of school buses or hazardous materials traffic, fatalities and otherfactors. Tr. 11 at 54, Appendix at 33.

2

gate the crossing. One witness described a trip over the Ulsh Road crossing as "like

being on a rollercoaster." Tr. 11 at 47, Appendix at 3 1. The record reflects that there

have been two accidents at the crossing in the past five years, the most recent occurring

in 2008. Id. at 16, Appendix at 28. Between 130-140 vehicles, that include trucks haul-

ing hazardous materials and chemicals, daily use this crossing. Id. at 50, Appendix at 32;

Diagnostic Review Team Survcy, Appendix at 38-45. The long standing policy of local

fire and emergency responders is to avoid using this crossing, except in extreme situa-

tions, in favor of using the main highways for their equipment. Tr.11 at 114-115,

Appendix at 34-35. Clint Canterbury, fire chief for the First Consolidated Fire District

(that scrves Claridon Township) further explained rationale for this policy:

It takes a lot of communication between the driver and thepassenger to travel over the crossing and ... it's not practicaland the crossing grade is pretty steep there and it is just areally bad angle ... I do not disagree this is a bad crossing atall, it is.

Id. at 147-148, Appendix at 36-37.

In contrast to the low level of public vehicle traffic, that can be easily diverted to

other nearby crossings already equipped with active warning devices, nearly 20 trains

travel daily over the Ulsh Road crossing at maximum speeds of up to 60 miles pcr hour.

See e.g. Diagnostic Review Team Survey, Appendix at 38-45; Tr. II at 37-38, Appendix

at 29-30.

After holding a local public hearing in Claridon T'ownship and a subsequent adju-

dicatory hearing, and fiilly evaluating all the evidence presented, the Commission found

3

that there was no continuing demonstrable need for the rural Ulsh Road crossing3 to

remain open, and it thus ordered it closed to all vehicle traffic trnder R.C. 4907.475. In re

Petition of CSX Transportation, Inc., Case No. 09-125-RR-UNC (Opinion and Order at

11) (October 28, 2009), Appendix at 16. That decision is fully supported by the cross-

ing's existing low traffic usage, its dangerous physical characteristics, and its poor acci-

dent history among other factors.

Claridon Township sought rehearing by filing a document that the Commission

rejected as an improper rehearing application under R.C. 4903.10. In re Petition of'CSX

Trrznsportation, Inc., Case No. 09-125-RR-UNC (Entry on Rehearing at 3-4) (December

16. 2009), Appendix at 21-22. Instead, the Commission found the document to be little

more than a request to offer additional evidence, evidence that could have witli reason-

able diligence, been offered during the recently-concluded evidentiary hearing. Id. at 3,

Appendix at 21. The Commission denied the 'Township's request to supplement the

record and this "appeal" ensued.

ARGUMENT

A stay is an extraordinary remedy, a fact recognized in the R.C. 4903.16 bond

requirement. Virginia Petroleiirn Jobbers Ass'n v. FPC, 259 P.2d 921, 925 (D.C. Cir.

1958). The Court has denied a number of requests to stay orders of the Commission on

appeal. See Consumers' Counsel v. Pub. Util, Comm'n, 109 Ohio St. 3d 1492, 848

The Commission's decision addresses only the tJlsh Road grade crossing itself.The reniainder of Ulsh Road remains open and completely under the governing authorityof Claridon Township.

4

N.E.2d 856 (2006) (stay denied); Consumers' Counsel v, Pub. Util. Comm'n, 107 Ohio

St. 3d 1679, 839 N.E.2d 401 (2005) (stay denied); Reading v. Pub. Util. Comm'n, 105

Ohio St. 3d 1496, 825 N.E.2d 621 (2005) (stay denied); Ameritech Ohio v. Pub. Util.

Comm'n, 79 Ohio St. 3d 1473, 682 N.E.2d 1002 (1997) (stay denied). The applieant who

seeks a stay shoulders a heavy burden to justify this extraordinary relief. The appellant's

stay petition should be rejected because it fails to comport with irnportant statutory

requirements.

Proposition of Law No. 1:

The Township's failure to fnlfill the statutory prereqnisites ofR.C. 4903.16 is fatal to its request for a stay order. Consumers'Counsel v. Pub. Util. Comm'n, 61 Ohio St. 3d 396, 403, 575N.E.2d 157, 162 (1991).

tJnless otherwise specified, an order of the Commission is effective immediately

upon journalization. Ohio Rev. Code Ann. § 4903.15 (West 2010), Appendix at 2. There

is no eonstitutional right of appeal of a Commission decision. City of Columbus v. Pub.

Util. Comm'n, 170 Ohio St. 105, 107, 163 N.E.2d 167, 170 (1959). 1'hat right has been

created by the General Assembly and its exercise is subject to a number ot'requirements

delineated in Chapter 4903 of the Ohio Revised Code. One such provisiori,

R.C. 4903.16, outlines the process to be followed by a challenging party seeking to stay

execution of a Commission order:

A proceeding to reverse, vacate, or modify a final order ren-dered by the public utilities commission does not stay execu-tion of such order unless the supreme court or a judge thereofin vacation, oti application and three days' notice to the com-mission, allows such stay, in which event the appellant shall

5

execute an undertaking, payable to the state in such a sum asthe supreme court prescribes, with surety to the satisfactionof the clerk of the supreme court, conditioned for the promptpayment by the appellant of all damages caused by the delayin the enforcement of the order complained of, and for therepayment of all moneys paid by any person, firm, or corp-oration for transportation, transmission, produce, commodity,or service in excess of the charges fixed by the order com-plained of, in the event such order is sustained.

Ohio Rev. Code Ann. § 4903.16 (West 2010) (emphasis added), Appendix at 2.

The bond requirement of R.C. 4903.16 has been the subject of the Court's

jurisprudencc on a number of occasious. The Court has determined "that there is no

automatic stay of any [PUCO] order, but that it is necessary for any person aggrieved

thereby to take affirmative action, and if he does so he is required to post bond." City of'

Columbzcs, supra; Keco Industries, Inc. v, Cincinnati & Suburban Bell Tel. Co., 166 Ohio

St. 254, 258, 141 N.E.2d 465, 468 (1957). In Keco, for example, the Court found, by

reference to R.C. 4903.16, that:

From this section it is clear that the General Assemblyintended that a public utility shall collect the rates set by thecommission's order, giving however, to any person who feelsaggrieved by such order a right to secure a stay of the collec-tion of the new rates after posting a bond.

Keco, 166 Ohio St. at 257, 141 N.E.2d 468 (emphasis added). The Court has concluded

that the bond requirement applies to governmental appellants, such as municipalities, as

well. City of'Columbus, supra.

The jurisprudence of the Court makes clear that: (1) appeals of tinal orders of the

Commission are governed solely by statute; (2) there is no automatic stay of a Commis-

sion order; and, (3) any appellant (including governmental ones) challenging and seeking

6

to stay a Commission order tnust furnish the undertaking required under R.C. 4903.16.

Under the statute, the Township must execute a bond for any damage that a stay might

occasion. The Township has failed to execute thc undertaking required by the statute.

Here "damages" include the very real threat of fatalities, injuries and property dainage

and attendant clean-up costs. The Commission submits that the Court should require and

establish the statutory undertaking with due regard for the Township's conscious willing-

ness to perpetuate a known danger to the traveling public.

Further, while the appellant bears a heavy burden to justify extraordinary relief, its

motion for stay presents no showing (indeed any discussion whatsoever) of even a remote

likelihood of success on the merits. Nor has the appellant/movant demonstrated any

harm from the Commission's decision that closes a very dangerous public grade crossing

and eliminates a significant danger to the traveling public. Given the body of substantial

and largely uncontroverted evidence of record, the Commission could not and this Court

should not allow the danger to the public to continue, as it will, if a stay is granted.

CONCLUSION

Claridon Township has failed to justify the extraordinary relief that it seeks. The

facts show and the public interest demands that the Ulsh Road at-grade crossing be closed

permanently to eliminate the potential for yet another vehicle-train accident. Staying the

Coimuission's order below will only underminc the policy of the State of Ohio to aggres-

sively promote grade crossing safety statewide. I'arochial self-interest must not be ele-

vated above the greater public health and safety of the traveling public and railroad

7

employees that the General Assembly has designated as a priority and charged the Com-

mission with promoting.

Based upon the foregoing, the Commission respectfully requests that the

Township's motion for a stay be denied.

Respectfully submitted,

Richard CordrayOhio Attorney GeneralAttorney General of Ohio

Duane W. LuckeySection Chief

Willia#h 1L. WrightCounsVof RecordAssistant Attorney GeneralPublic Utilities Section180 East Broad Street, 6°i PIColumbus, OH 43215-3793614.466.4397 (telephone)614.644.8764 (fax)[email protected](liam.wrieht f&puc state.oh.us

8

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing Memorandum in Opposition To

Motion For Stay was served by regular U.S. mail, postage prepaid, or hand-delivered,

upon the following parties of record, this 1" day of February, 2010.

W}'I1 i afi'T^. WrightAî'stant Attorney General

PARTIES OF RECORll:

Brent W. YagerMarion County Prosecutor134 East Center StreetMarion, Ohio 43302

R. Leland EvansMegan E. BaileyPorter Wright Morris & Arthur, LLP41 South High StreetColumbus, Ohio 43215

9

APPENDIX

APPENDIX

TABLE OF CONTENTSPage

Ohio Rev. Code Ann. § 4903.10 (West 2010) .................................................................... I




Ohio Rev. Code Ann. § 4907.474 (West 2010) ................................ ......... .............. 3

Ohio Rev. Code Ann. § 4907.475 (West 2010) .................................................................. 4

In re Petition of CSX Transportation, Case No. 09-125-RR-1,TNC (Opinionand Order) (October 28, 2009) ............................................................................................ 6

In re Petition of CSX Transportation, Case No. 09-125-RR-UNC (Entry onRehearing) (December 16, 2009) ...................................................................................... 19

In re Petition of CSX Transportation, Case No. 09-125-RR-UNC(Transcript) (May 4, 2009) (EXCERPTS) ........................................................................ 23

In re Petition of CSX Transportation, Case No. 09-125-RR-UNC(Transcript) (August 12, 2009) (EXCERI'TS) .................................................................. 27

Diagnostic Review 'I'eam Survey (September 23, 2008) .................................................. 38

§ 4903.10. Application for rehearing

After any order has been made by the public utilities commission, any party who hasentered an appearance in person or by counsel in the proceeding may apply for arehearing in respect to any matters determined in the proceeding. Such application shallbe filed within thirty days after the entry of the order upon the journal of the commission.Notwithstanding the preceding paragraph, in any uncontested proceeding or, by leave of'the commission first had in any other proceeding, any affected person, firm, orcorporation may make an application for a rehearing within thirty days after the entry ofany final order upon the journal of the commission. Leave to file an application forrehearing shall not be granted to any person, firm, or corporation who did not enter anappearance in the proceeding unless the commission first finds:

(A) The applicant's failure to enter an appearance prior to the entry upon the journal ofthe commission of the order complained of was due to just cause; and,

(B) The interests of the applicant were not adequately considered in the proceeding.Every applicant for rehearing or for leave to file an application for rehearing shall givedue notice of the filing of such application to all parties who have entered an appearancein the proceeding in the manner and form prescribed by the conunission. Such applicationshall be in writing and shall set forth specifically the ground or grounds on which theapplicant considers the order to be unreasonable or unlawful. No party shall in any courturge or rely on any ground for reversal, vacation, or modification not so set forth in theapplication. Where such application for rehearing has been filed before the effective dateof the order as to which a rehearing is sought, the effective date of such order, unlessotherwise ordered by the commission, shall be postponed or stayed pending dispositionof the matter by the commission or by operation of law. In all other cases the making oi'such an application shall not excuse any person from complying witll the order, oroperate to stay or postpone the enforcement thereof, without a special order of thecommission. Where such application for rehearing has been filed, the commission maygrant and hold such rehearing on the matter specified in such application, if in itsjudgment sufficient reason therefor is made to appear. Notice of such rehearing shall begiven by regular inail to all parties wlio have entered an appearance in the proceeding. Ifthe commission does not grant or deny such application for rehearing within thirty daysfrom the date of filing thereof, it is denied by operation of law. If the commission grantssuch rehearing, it shall specify in the notice of such granting the purpose for which it isgranted. The commission shall also specify the scope of the additional evidence, if any,that will be taken, but it shall not upon such rehearing take any evidence that, withreasonable diligence, could have been offered upon the original hearing. lf, after suchrehearing, the commission is of the opinion that the original order or any part thereof is inany respect unjust or unwarranted, or should be changed, the commission may abrogateor modify the same; otlierwise such order shall be af6rmed. An order inade after suchrehearing, abrogating or modifying the original order, shall have the same effect as an

1

original order, but shall not affect any right or the enforcement of any right arising fromor by virtue of the original order prior to the receipt of notice by the affected party of thefiling of the application for rehearing. No cause of action arising out of any order of thecommission, other than in support of the order, shall accrue in any court to any person,firm, or corporation unless such person, firm, or corporation has inade a properapplication to the con7miss'ron for a rehearing.

4903.15 Orders effective immediately - notice.

Unless a different time is specified therein or by law, every order made by the publicutilities commission shall become effective immediately upon entry thereof upon thejournal of the public utilities com3nission. Every order shall be served by United Statesmail in the manner prescribed by the commission. No utility or railroad shall be found inviolation of any order of the commission uiitil notice of said order has been received byan officer of said utility or railroad, or an agcnt duly designated by said utility or railroadto accept service of said order.

4903.16 Stay of execution.

A proceeding to reverse, vacate, or modify a final order rendered by the public utilitiescommission does not stay execution of such order unless the supreme court or a judgethereof in vacation, on application and three days' notice to the commission, allows suchstay, in which event the appellant shall execute an undertaking, payable to the state insuch a sum as the supreme court prescribes, with surety to the satisfaction of the clerk ofthe supreme court, conditioned for the prompt payment by the appellant of all damagescaused by the delay in the enforcement o1'the order complained of, and for the repaymentof all moneys paid by any person, firm, or corporation for transportation, transmission,produce, commodity, or service in excess of the charges fixed by the order complainedof, in the event such order is sustained.

4905.04 Power to regulate public utilities and railroads.

(A) "I'he public utilities commission is hereby vested with the power and jurisdiction tosupervise and regulate public utilities and railroads, to require all public utilities tofurnish their products and render all services exacted by the commission or by law, and topromulgate and enforce all orders relating to the protection, welfare, and safety ofrailroad employees and the traveling public, including the apportionment betweenrailroads vid the state and its political subdivisions of the cost of constructing protectivedevices at railroad grade crossings.

2

(B) Subject to sections 4905.041 and 4905.042 of the Revised Code, division (A) of thissection includes such power and jurisdiction as is reasonably necessary for thecommission to perform pursuant to federal law, including federal regulations, the acts ofa state commission as detined in 47 U.S.C. 153.

4907.474 Closing crossings to vehicular traffic.

(A) In making the survey provided for by section 4907.471 of the Revised Code, thepublic utilities commission shall determine as to each crossing whether there is ademonstrable need for such crossing toexist and whether the crossing could be closed tovehicular traffic, or to pedestrian traffic, or to both, and the travel over the crossingdiverted to other crossings. In making this determination, the commission shall considerall of the following:

(1) The daily vehicular and train traffic at the crossing to be closed;

(2) The daily vehicular and train trafFc at any alternate crossings;

(3) The daily increase in vehicular traffic at alternate crossings resulting from proposedcrossing closttres;

(4) The nature of the roadway at any alternate crossings;

(5) The total number of crossings within one linear mile of the crossing to be closed;

(6) 'I'he type of advance warning devices at any alternate crossings;

(7) The sight distances at any alternate crossings, including any permanent obstructionaffecting distance of view;

(8) The impact of closure on vehicular traffic, emergency vehicles, commercialenterprises, and any other factors pertinent to municipal corporations and other populatedareas;

(9) Any other factor the commission determines appropriate.

(B) If the commission finds that there is not a demonstrable need for a crossing to existaccording to the factors listed in divisions (A)(1) to (9) of this section and that thecrossing could be closed, and if the crossing is on a street or way within a municipalcorporation, the commission shall hold a public hearing on the issue of the possibleclosing of the crossing to vehicular traffic, or to pedestrian traffic, or both, and invitecomments on the closing and the effects the closing would have on the vehicular and

3

pedestrian traffic patterns within the municipal corporation. The commission also shallhold such a hearing upon application of the municipal corporation within which acrossing is located, or upon application of the railroad having jurisdiction over a crossing,if the municipal corporation or railroad believes that there is not a demonstrable need forthe crossing to exist and that the crossing should be closed to the public. Any suchapplication filed by a municipal corporation or railroad shall be on a form provided bythe commission. Notice of the hcaring shall be published once a week for tlireeconsecutive weeks in a newspaper of general circulation in the municipal corporation inwhich the crossing at issue is located. 1'he hearing shall be held at a location within theboundaries of the municipal corporation. If, after the hearing, it is the opinion of thecommission that there is not a demonstrable need for the crossing to exist according tothe factors listed in divisions (A)(1) to (9) of this sectionand that thecrossing sliould beclosed, the commission shall issue an order to the legislative authority of the municipalcorporation in which the crossing is located directing it to discontinue the crossing andclose it to vehicular traffic, or to pedestrian traffic, or both, by ordinance. Thecommission shall enter the order upon its journal. The legislative authority of themunicipal corporation, within thirty days after receipt of the order from the coinmission,shall discontinue the crossing and close it to vehicular traffic, or to pedestrian traffic, orboth, as specified in the order of the commission.

(C) The municipal coiporation or railroad may file with the commission an applicationfor a rehearing of the coimnission's order issued under division (B) of this section. Anyapplication for a rehearing of an order issued by the commission under this section shallbe filed in accordance with and meet the requirements contained in section 4903.10 of theRevised Code, and any rehearing held by the commission shall be conducted inaccordance with that section. The municipal corporation or railroad may appeal the orderof the commission, as affinned or modified by the cominission after the rehearing, to the

supreme court.

(D) The commission shall assess the costs, as determined by the commission, of theclosure of a crossing under this section against the railroad having jurisdiction over thecrossing. If a municipal corporation or railroad applies for closure of a crossing underdivision (B) of this section, the commission may assess the costs of any investigationconducted under this section to make the determination required by division (A) of thissection against the municipal corporation or railroad that applies for the closure.

4907.475 Closing rural crossings.

(A) If the public utilities commission finds that there is not a demonstrable need for thecrossing to exist according to the factors listed in divisions (A)(1) to (9) of section4907.474 of the Revised Code and that the crossing could be closed to vehicular traffic,

4

or to pedestrian traffic, or to both, and tlie travel over the crossing diverted to othercrossings, and if the crossing is on a road or highway other than a state highway and isoutside the limits of a municipal corporation, the commission shall hold a public hearingon the issue of the possible closing of the crossing to vehicular traffic, or to pedestriantraffic, or both, and invite comments on the closing and the effects the closing wouldhave on the traffic and pedestrian travel patterns within the county. The commission alsoshall hold such a hearing upon application of the county within which a crossing islocated, or upon application of the railroad having jurisdiction over a crossing, if thecounty or railroad believes that there is not a demonstrable need for the crossing to existand that the crossing should be closed to the public. Any such application filed by acounty or railroad shall be on a form provided by the commission. Notice of the hearingshall be published once a week for three consecutive weeks in a newspaper of generalcirculation in the county in which the crossing at issue is located. 'fhe hearing shall beheld at a location within the boundaries of the county. If, after the hearing, it is theopinion of the commission that there is not a demonstrable need for the crossing to existaccording to the factors listed in divisions (A)(1) to (9) of section 4907.474 of theRevised Code and that the crossing should be closed, the commission shall issue an orderto the board of county commissioners of the county in which such crossing is locateddirecting it to discontinue the crossing and to close it to vehicular traffic, or to pedestriantraffic, or to both, by resolution as provided by sections 5553.01 to 5553.07 of theRevised Code. The board, within thirty days after receipt of the order from thecommission, shall discontinue the crossing and close it to vehicular traffic, or topedestrian traffic, or both, as specified in the order of the commission.

(B) The board or railroad may file an application with the commission for a reliearing ofthe commission's order issued under division (A) of this section. Any application for arehearing of an order issued by the commission under this section shall be filed inaccordance with and meet the requirements contained in section 4903. 10 of the RevisedCode, and any rehearing held by the commission shall be conducted in accordance withthat section. The county or railroad may appeal the order of the commission, as affirmedor modified by the commission after the rehearing, to the supreme court.

(C) The commission shall assess the costs, as determined by the commission, of theclosure of a crossing under this section against the railroad having jurisdiction over thecrossing. If a county or railroad applies for closure of a crossing under division (A) ofthis section, the commission may assess the costs of any investigation conducted underthis section to make the determination required by division (A) of section 4907.474 oI'theRevised Code against the county or railroad that applies for the closure.

5

BEFORE

THE PUBLIC UPIC.ITIES COMMISSION OF OHIO

In the Matter of the Petition of C$XTxansportation, Inc. to Close to VehicularTraffic the County Road 205/Ulsh RnadGrade Crossing (262-061N), Located inClaridon Township, Marion County, dlua.

Case No. 09-125-RR-UNC

OPINION AND ORDER

The Commission, considering the applicable law and evidence of record, and beingotherwise fully advised, hereby issucs its opinion and order in this matter.

APPHAANCI,S:

Porter Wright Morris & Arthur, LLP, by R. Leland Evans and David K. Orenston, 41S..Efigh Street, Colnmbus, Ohio, 432'15, on behalf of CSX Transportation, Inc.

HIS'I'ORY t3P THI! PRtX.AHDINGS:

On February 18, 2009, CSX "rransportation, Inc. (CSX) filed a petition to close tovehicular traffic the grade crossing located at County Road 205/Ulsh Road, AAR-262061N, (UlshRoad crossing), located in Claridon Towtuhip, Marion County. By entryof February 20, 2009, CSX was directed to amend its petition to provide supplententalinformation regarding the Ulsh Road crossh g, pursuant to Sections 4907.474 and 4907.475,Revised Code. The entry alsp invited Claridon Township to comment on CSX's petition.On March 16, 2009, CSX filed an amendment to its petition. On March 23, 2009, ClaridonTownship filed objections to CSX's petition. By entry of April 14, 2009, a local publicIrearing was scheduled for May 4, 2009, in Caledonia, Ohio. Legal notice of the hearingwas published in The Marinn Star, a newspaper of general circulation in Marion County.The local public hearing was held as scheduled where ten witnesses provided sworntestimony. By entry of May 7, 2009, an adjudicatory hearing was scheduled for-July 14,2009. The July 14, 2009 adjudicatory hearing was continued to and held on August 12,2009. At the adjudicatory hearing, Todd Darfus, Texy Ludban, and Clint Canterburytestified.

1. Statute

It is well established that the Commission is vested with the statutory antliority toclose p•ade crossings located in inunicipal corporations pursuant to Section 4907.474,Revised Cbde, and to close rural grade crossings not on state highways, pursuant toSection 4907.475, Revised Code, which applies in this case. These secflons require that anapplieant seeking to close a railroad grade crossing to vehicular traffic mtist demonstrate

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that there is not a dernonstrable need for the grade crossing to exist. While the term"demonstrable need" is not specifically defined, Section 4907.474, RevisedCode, providesthat, in makntg that determination, the Conunission shall consider the following: the dailyvehicular and traht traffic at the crossing and at alternate crossings; theincrease invehicular traffic at alternate crossings resulting from the crossing closure; the nature of theroadway at any alternate crossings; the total niimber of crossings within one iinear mile ofthe crossing to be closed; the type of warning devices and sight distances at alternateerossings; the impact of the closure on vehicular traffic, emergency vehicies, conunercialenterprises; and municipal corporations and other populated areas;and any other factorthe Cornmission determines appropriate.

Discussion

In oiu• determination of whether there is a demonstrable need for the continuedexistence of the Ulsh Road crossing, we firsYconsider the daily vehicular and train trafficat the crossing and at alternate crossings, tlie increase in vehicular trakfic that would resultfrom closing the Ulsh Road crossing, the nature of the roadways at the alternate crossings,the total nun-cber of crossings within orie linear mile of the Ulsh Road crossing, and thetype of advance warning, devices and the sight distances at the alternate crossings.

A. Daily vehicular and train traffic at the crossing and at alternate crossings

Ulsh Road is a paved road, approximately 15 feet in width and approximately oneand one half miles in length, and has a posted speed lunit of 55 rnph (1r. II at 32), It isoriented in an east to west direction and connects State Route 98 (SR 98) on the west withMarion-6alion Road on the east. A single railroad track, operated by CSX, crosses UlshRoad in a soutllwest to northeast orientation (CSX Hx. 9, at 2). According to motor vehicletraffic counts performed by the Marion County Engineer on May 19, 2009, the averagedaily vehicle count on Ulsh Road is 137 vehicles (CSX Ex. 2).1 The average daily traincount over the Ulsh Road crossing is approximately 19 trains traveling at specds up to amaximum of 60 rnph (G9X Ex. 9, at 2).

According to CSX's application, there are iwo alternate crossings to the UIsh Roadcrossing, including the Nesbitt Road crossing, located to the northeast, and the SR 98crossing, located to the sonthwest. The estimated daily vehicular traffic at the NesbittRoad crossing is 287 vehicles per day and the estirnated daily vehicular traffic at the SR 98crossing is 3,450 vehicles per day. Because the same C5X railroad track passes through allthree grade crossings, the daily train count would be the same at all three grade crossings(Id.).

2 The average daily vehicle count has remaLied relatively consEnd us the average daily vehicie count inApr112pp6 was 732 vehicles (Tr. II at 23).

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The daily increase in vehicuiar traffic at altcrnate crossings resultsg from thecrossing closure

If the Ulsh Road crossing is closed, the increase in vehicular traffic at the alternatecrosshigs would be approxiniately 132 vehicles per day (Id, at 3). There was no evidenceregarding whether traffic diverted from the Uish Road crossing would be more or lesslikety to use eitlier atternate grade crossing.

C. Total number of crossings within one linear mile of the Ulsh Road Crossing

According to C5X's amended petition, there are two crossings within one Iinearmile of the Ulslr Road crossing. However, the railroad information on which the amendedpetition is based, taken from the Commission s Grade Crossing Inventory Ratabase,identifies only one crossing within oite linear mlle of the Ulsir Road crossing. The UtshRoad crossing is located at milepost 94.32. The SR 98 crossing is located at milepost 95.15,approximately 0.83 milcs from the Uleh Road crossing. The Nesbitt Roaii crossing islocated at milepost 93.00, approximately 1.32 miles from the Ulsh Road crossing (CSX Ex.

9, at2).

D, Nature of the roadway at tliealternate crossings

As indicated above, the two alternate grade crossings to the Ulsh Road crossing arelocated at Nesbitt Road and SR 98. $oth Nesbitt Road and SR 98 are paved, two-laneroads. Nesbitt Road is a township road, while SR 98 is a state highway. Both roads arecomparatively straight and both crossings are at grade with minimally raised profiles. Theinformation related to the angle of the crossings is based on the Federal RailroadIriventory information whicli idctitifies the smallest angle between the road and the track.The crossing angle of the Ulsh Road crossing is between 30 to 59 degrees; whereas thecrossing angles of the Nesbitt Road and SR 98 crossings are both less severe, at between 60to 90 degrees (7d.).

E. Type of advance warning devices and sight distances at the alternatecrossings

Both the Nesbitt Road and SR 98 crossings are actively protected by crossbucks,flasldng lights, and roadway gates. The Ulsh Road Crossing is only passively protected byerossbucks. As noted previously, the Ulsh Road crossing is impacted by the sharp anglethat the CSXtrack intersects Ulsh Road whiclr creates Iimited sight distarue. With respectto the. alternate grade crossings, neither has any obstructions affecting sight distance. In itsamended petition, CSX noted that Section 4511.62, I2evised Code, provides that motoristsmust stop within 50 feet, but no less than 15 feet, of the ncanest rail of a crossing if

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conditions set forth in that section exist and one such condition is the activation of crossinglights and or gates. According to CSX, there are no signifieant obstructions to view with adistance of 15 to 50 feet froin the alternate grade crossings along CSX's right-of-way (Id. at3-1).

P. lmpact of the closure on vehicular traffic, emergency vehicles, commercialenterprises, and any other factors pertinent to municipal corporations andother populated areas

Evidence on the impacts of the closure of the IJlsh Road crossing on vehiculartraffic, emergency vehicles, and Claridon Township was provided by witnesses whotestified at the public hearing, as well as the evidelztlary hearing. Ten witnesses providedsworn testimony at the local public hearing. One witness indicated that there are only twohouses on UlshRoad and that oiily two individuals live on Ulsh Road (Tr. T at 12). OneClazidon Township Trustee testified that the River Valley School District had requestedthat the Ulsh Road crossing remain open and that lights and gates be installed (Id. at 4).Another witness, representing the River Valley School District, acknowledged that theUlsh Road crossing is not to be used on a regular basis or when the buses are transportingschool childreti z l le noted that when the school buses are empty, at least three dailyschool buses usc the Ulsh Road crossing. to reduce travel time; and, if the Ulsh Roadcrossing is closed, it would increase the travel distance for school buses by approximatelyone-half n ite (Id. at 6, 10). One witness similarly conunented that closing the Ulsh Roadcrossing would add an additiona12.1 miles per day travel distance for mail delivery (Id, at11-12). Another witiiess tcstified that her family owns farnt land on both sides of the UlsliRoad crossing and that, if it was closed, it would create a tremendous inconvenience forthe transfer of farming equipment between their parcels of lancl (Id. at 14). The fire chieftestified that, in the past, the SR 98 crossing has been blocked for routine maintenance. Heclaimed that, if the SR 98 crossing ever became blocked and the Ulsh Road crossitig wasclosed, emergency vehicles would have to detour to other grade crossings creating delayin responding to emergencies (Id. at 19). One person claimed that, if the Ulsh IZoadcrossing is closed, Ulsh Road would become a dead-end road and this would increase thelikelihood that farm equipment would be vandalized, trash would be illegally ciunipcd,and property valucs would decrease (Id, at 24). Several other witnesses testified that, if theUlsh Road crossing is closed, farm equipment, serni-tractor trailers, and ecnergencyequipment would be forced to back-up their vehicles on IAsh Road because there is noturnaround and the equipment is too heavy to drive onto the field (Id, at 22, 36). CAshRoad was characterized by several of the public witnesses as both a "cut-through" road fortnany people and a"nice side road" for tractor equipmeut in order to let other vehiclespass on SR 98 (Id, at 14, 16, 32), Other than the testimony related to farming operations,

9One witness chumed tbatschool buses do use the crossing wlule transpoxting sehool chitdren ('rr. I at 7)

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iliere was no testimony that related to any commercial enterprises that would be affectedby the closure of the Ulsh Road crossing.

At the adjudicatory hearing, three witnesses provided testimony. Todd Darfus, aproject utanager• for the Ohio Rail Development Commission (ORDC), testified that heparticipates in diagnostic reviews of grade crossings and that he is in charge of upgradingthe protection at grade crossings with both surface improvements, as well as tlirough theinstallation of advanced warning devices ('Pr. II at 9).3 He indicated that a diagnosticreview was performedon the Ulsh Road crossing on September 23, 2008, and that thegeneral consensus of the diagnostie team, consisting of CSX, the Cornmission, localauthorities, and the ORDC, was that the Ulsh Road crossing should be closed (Id. at 12-13)A He explained that part of ORDC's mission is to protect the safety of the travelingpublic and that is done by funding grade crossing improvement projects which cost, onaverage, between $170,000 and $250,000. He also noted that ORDC is only able tocomplete t0 to 12 grade crossing improvement projects each year and, as a resuit, ORDCevaluates aIIidentifie8crossings to determine which are redundant and could be closedand which should be upgraded with automatic warning devices. He noted that there wereseveral factors that led lilm to the recommendation that the Ulsh Road crossing should beclosed. First, he cited the fact that there had been at least two accidents at the U[sh Roadcrossing in ttte past five years, with the most recent crash occurring prior to 2008.According to Mr. Darfus, this, in part, was the cause for the Ulsh Road crossing to berar ked as the twelfth most dangerous crossing in Ohio (Id. at 16). He referred to otherfactnrs that account for the ranking including the extreme skew or angle of the crossing,the fact that it is a double-huntp crossing (having previously had another railroad line inuse), and that the crossing is elevated above the surround'uig area, all of which negativelyaffect the visibility and safety for ntotorists. bYhife the speed limit of Ulsh Road is 55 mph,be claimed it woold be very dangerous to travel over the crossing at that speed because afthe angle and elevation of the crossing (!d. at 36-37).

Mr. Darfus testified that he performed measurtmtents of various distances to andfrom Ulsh Road. Based on his cal.eulations, if the Ulsh Road crossing is closed, thetdditional travel distance on ari alternate route would be no more than one tenth of a mile(Id, at 30-32). Mr. Darfus testified that he believed there are three a7teniate roads that canlie used with very little inconvenience to anybody and whicli are much safer choices, bothbecause of the oricntation of the crossings and because the crossings are equipped withactive grade crossing prateation. According to Mr. Darfus, the Ulsh Road crossing "isprobably one of the worst cases of a crossing scenario as far as safety that I've seen in my15 to 16 years at the Rail Commission:"(Id. at 38). Mr. Darfus also indicated that, while

3 Adiagnostic review occars once a crossing has been identified for possible upgrade or closure.4 He acknosvledged that he was uot part of the team that perforrned the diagnostic review of the Ulsh

Road crosstng.

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some in<lividuals sttggested that lights and gates be 4nstalled at the Ulsh Road crossing asaii alternative to closure, over 50 pezrent of the crashes that occur at railroad gradecrossings in Ohlo happen at grade crossings already equipped with active warning devicesand that over 40 percent of accidents occur at grade crossings equipped with gates ((d. at44). Mr. Darftts disputed some of the conunents raised at the public hearing regarding thedifficulties for trticks and farming equipment on Ulsh Road if the crossing is closed. Heindicated that any trucks hauling grain or carn into the fields to seed or hauling harvestout of the fields would drive into the fields and ba able to negotiate a turn around point toexit Lllsh Roaci: ' Whetherthey do a T turnaround at the crossing or they use somebody's

driveway, or there could be a cul-de-sac, tltere's variable ways. ]3ut as far as large semitrucks and fartn equipment that's going in and out of field drives, they have their ownproperty to tuni around on," (Id, at 77-78.) He also claimed that township velucles ttiatmaintain the raads would still be able to turn around on Utslt Road if the crossing is closedbecausc there is a turn-around area close to the crossing (!d. at 78).

Terry Ludban testified thatire is a manger of conununity affairs anci safety for CSX.He verified the information set forth in CBX's atnended application (Id. at 88-97) He also

noted that he performed diRtance ineasttrements consistent with those performed by

Mr. Darfus (Id. at 91). In response to conunents regarding previous incidents where SR 98was blocked, he acknowledged that under C.SX's maintenaiice schedule, the SR 98 crossingcould be closed for maintenaTme purposes an average of three days, every seven years andthat this routine maintertance could be what was referred to by the public witnesses (Id. at96), He explained that CSX has a telephonn system for reporting whenever a train isblocking any grade crossing and that this telephone system can be accessed by privatecitizens or the towiiship. I-le testified that, for the past three years, CSX records indicatethat thexe have been no caIl-in reports for any CSX train blocking the Ulsh Road, SR 98, or

Nesbitt Road crossings (Id. at 94): He also noted that, under certain circumstances, CSXwould have no opposition to a private crossing in the vicinity of the Ulsh IZOad crossing,provided the private crossing was constructed at a less severe angles (Id. at 97),

Clint Canterbury, fire c3ilef for the First Consolidated Fire District, testified that hisdistrice provides emergency service to four townships, including Claridon, as well as thecity of Catedonia (IcG at 105). He indicated that the current policy of the fire departanent isthat personneL are generally not to use the Ulsh Road crossing to respond to anemergency. F3e also noted that, if a fire occurred on Utsh Road, the Ulsh IZoad crossing

would not initially b@ used to access the area (Irl. at 175). I-Ie explained that the Ulsh Roadcrossing is not used because `Tt takes a lot of cotmnunication between the driver and thepassenger to travel over the crossiug and... it's not practical attd the crossing grade ispretty steep there and it's just a really bad angle...l don t disagree this is a bad crossing at

5 Section 4956.27, Revised Cade, providosthut for otivners of 15 acres of property located on both sides of araiiroad track, private crossings niay be coiuhveted at the expense of the propecty o+vner.

09-125-r.R-UNC -7-

ally it is." (Id, at 148.) He claimed that if the Dlsh Road csossing had gates, it would be

used.

lie testified that department responses to emergeney calls attempt to avoid the CSX

tracks ezitirely; so that for emergencies north of the CSX tracks, responders stay north ofthe tracks antl the Utsh Road crossing, and for emergencies south of the tracks, respondersstay south of the tracks and south of the U'ish Road crossing (Id. 113-114). ChiefCanterbury also did not dispute the measurements of Mr. Darfus and acknowledged that,for 80 to 90 percent of emergency calls, the CJlsh Road crossing is irrelevant to emergencyresponses for hts department (Id. at 151). While Mr. Canterbury expressed concern thatthe future expansion of an intermodal transportation facility, located in Marion andsouthwest of the iJlsh Road crossing, may increase the nttmber of traing on the tracks orincrease the likelihood of trains blocking tracks, he presented no actual informa6on orstudies on the intermodal facility (Id. at 129, 181). Chief Canterbury also testified that, inthe event lie became aware there was a planned closttre of a grade crossing in hisjurisiliction, he would plan accordingly by stationing emetgency vehicles north of the CSXtracks. He also acknowledged that he was awaie of the CSX telephone number to report

blocked grade crossings (Id. at 129). Chief Cantexbury indicated that department data

show that, in the past, there have been EMS responses to the two houses on Ulsh Road, aswell as emergency responses for field fires) however, he noted that EMS responsesgenerally do not travel over the Ulsh Road crossing when responding. T3e also noted thatthere have been no structure fires on Ulsh Road necessitating emergency response (Id, at131-133), I-Ie further testified that, if the Uish Road crossing is closed and a structure fireoccurred at either of the two houses on Ulsh Road, it would not mean the fire departmentcould not fight the fire or that emeigency equiprnent could not turn around to go back outUlsh Road; only that it would ntean that it would be more difficult to do so (Id. at 139-

140),6 Iie also noted that, because the neaivst hospital is located in Marion, the principalroutes of travel are STt 98 or SR 309 and this avoids the necessity of using the Ulsh Road

crossing (Id. at 168).

G. Arty other factor the Commission determines appropriate

There are approximately 6,100 railroad grade crossings in Ohio. As noted byORDC witness Darftrs, each crossing is ranked according to its accident histnry and levelof safety, At hearing, CSX provided evidence that, in 2007, the Ulsh Road crossing wasr.v lced as the 120, most dangerous grade crossing in the state of Ohio. 'lhis high ratingwas the result, in part, of prior accidents at the crossing. As directed by the attorncyexaminer, the ORDC filed a notice following the heariitg that, effective August 12, 2009,indicated the C7lsh Road crossing is ranked as the'14'h niost dangerous grade crossing in

6 Chief Cnnterbary claiused i3rat, becauve Ulsh Road is only 15 feet ivide, two emergency vehictes wouldbe unable to simultaneou5ly drive on Ulsh Ruad, without one vehicle driving on the berm (Tr. II at 144).

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the state of Ohio. Mr. Darfus also noted that, while light and gates do improve the safetyat graiie crossings, the evidence shows that accidents still occur at crossnigs with activewarning devices approxiinately 50 percent of the time. Also important to the Conunissionis the fact that the current policy of the Pirst Consolidated Fire District is that emergencyvehicles and division personnel are not to use the Ulsh Road crossing. The evidenceshows that even though this policy was in place before the current chief, he has con8nued

the policy since becomiog chief.

Tn addition, there was evidence related to the angle and profile of the Ulsh Roadcrossing, as well as the speed limits for tnotor vehicles and traina. The evidence showsthat the aggle of the Ulsh Road crossing is between 30 and 59 degrees. This extremedegree angle creatcs a very linuted sight view for drivers of vehicles as they approach therailroaci track. There is a 55 tnph speed limit for motor vehicles on Ulsh Road and arelatively high speed for trains at 60 n1ph. The profIle of tlle Ulsh Road crossing is

characterized as elevated and steep.

Pinally, the evidence in this case demonstrated that, if the Ulsh Road crossing rsclosed, drivers of inotor vehicles would have only an additional one-tenth of a mile intravel distance. Although there was some testimony regarding the increased costs to thepost office, there was insufficient evidence that the additional trave3l distance would createan unreasonable burden on the traveling public.

Ill. Conclusion

As previously noted, the term "demonstrable need" is not defined in the statute.Historically, the Gonunissiun has made the determinatiort as to whether a demonstrableneed exists, by weighing the record evidence, In prior eases involving petitions for closureof railroad grade crossings, the Commission has fotind that a demonstrable need existswhen the evidence shows that the crossing is essential, vital, and indispcnsable to thegeneral public and when its closure would negatively iinpaet the interests and well l eingof the general com nunity. After consideration of the evidence in this case, we find thatthere is not a demonstrable need for the Ulsh Road crossing to exist and, tlierePore, CSX's

petition should be grantt, d. In making this determination, we note that we have balancedthe concerns raised by the residents of Claridon Townslup, the evidence presented byCSX, and the evidenee related to the crossing profile, safety ranking, nttmber and speed oftrains, and the angle of the crossing. '1'he balance in this case weighs heavily in favor of

closure of the Ulsh Road crossing.

The evidence demonstrates that the Ulsh Road crossittg is one of the mostdangerous grade crossings in Ohio and is currently rated as the 14th most dangerouscrossing out of over 6,100 grade crossings in Ohio. The evidence shows that while it waspreviously ranked as the 12th most dangerous crossing two years ago, it remairv very

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dangeinus, The dangers of this crossing are evidenced by the frequency of accidents,which occtrrred in the past severfil years. The perils posed by the Ulsh Road crossing are,in part, related to the 30 to 59 degree angle at which Ulsh Road crosses the CSX track, Thissevere angle creates an extreme sight view for motor vehicles travel'utg over the crossingand was clwracterized by the Claridon Township fire chief as "really bad". As describedby Cliief Canterbury: "It takes a lot of communicaflon between the driver and thepassenger to txavel over the crossing and the "crossing grade is pretty steep there and ifsjust a really bad angle...I don't disagree this is a bad crossing at all, it is."

While ORDC witness Darfus testified that crossing lights and gates could reducethe element of dangers at the crossing, such warning devices would not eliminate thedangers at this crossing, because he noted that 40 percent of crossing accidents occur atg>•ade crossings equipped with lights and gates. The evidence regarding the Ulsh Roadcrossing demonstrates that, while the volume of daily vehicular traffic on Ulsh Road is lowat 137 vehicles per day, the relative speed limit for motor vehicles is high at 55 mph. Inadditlim, the volume of train traffic is high at 19 trains per day and the train speed is alsolugh at 60 mph. These vehicle corints and speeds, coupled with the volune of trainstraveling at such high speeds, and the track grade, crossing profile, and severe angle allcreate hazardous conditions that pose an extreme dangeer and unsafe conditions for driversand passengers of motor vehicles that travel over the Ulsh Road crossing.

Further evidence weighing in favor of closure of the Ulsh Road crossing relates toschool b is and emergency vehicle usage. The evidence shows that the crossing is unsafefor school buses which do not use the Ulsh Road crossing while transporting schoolchildren, '1'he safety of the crossing is also nsanifested by the fire cl ief's standing order

that en ergency persomlel not use the Ulsh Road crossing.

Ttie evidence also shows that the two alternate crossings are equipped with moreadvanced safety equipment and have more favorabie grade crossing chasacteristies thanthe Ulsh Road crossing. 13oth the SR 98 and Nesbitt Road crossings arc equipped withactive warning devices, including warning lights and gates; whereas the Ulsh Roadcrossing is ordy passively equipped with crossbucks. Further, both the SR 98 and NesbittRoad crossings have lower crossing pTofiles and less severe crossing angles than the UlshRoad crossing, making them safer grade crossing alternatives, [3eyond the safetyaspectsof the Ulsh Road crossing, tliere was also insufficient evidence that the additional one.eentll of a mile in travel distance to these alt'ernate crossings would create an unreasonableburden for anyone. While the evidence indicate.s that there are two trrdividuals residingon Ulsh Road that could be lnconvenienced by the closure of the Ulsh Road crossing, thatinconvenience must be balanced with the immediate positive benefit to the safety to thetraveling public and Che general public residing in and around Claridon Township.Furthermore, there was public testhnony that Ulsh Road and the Ulsh Road crossingfunction more as a convenience, rather than a need, for motorists, having becn

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characterized by several witnesses at the local public hearing as a"cut-tharough" street anda "nice side road." w'Jhile we note that thcrc was an issue raised at the public hearingregarding the accessibility and inaneuverability of trucks and farm equipment on UlshRoad, there was both testimony that it could present a p,robleiii, as well as testimony that itwould not present any problem for such vehicles which would turn-arounil in the fields.Further, Chief Canterbury testified that, even if the Ulsl1 Road crossing is closed,emergency service would still be able to be provided to the two individuals residing onUlsh Road, albeit with some delay in response time. In additioi, Chief Canterburytestified that for 80 to 90 percent of emergency calls, the Ulsh Road crossing is irrelevant toemergency responses for his department.

Lastly, we address several issues raised by witnesses at the public hearing and oneprocedural issue raised by CSX at the adjudicatory hearing. Pirst, there was testanony

from Chief Canter•bury claiming that, at times, trains have blocked alternate crossings,making use of the Ulsh Road crossing all tl e moxe important to remain open. TheCommission believes that the issue of train-blocked crossings is aiocal jurisdictional issueand, therefore, this should continue to be addressed at the local level by ClaricionTownsliip, pursuant to Sections 5589,21 and 5589.99, Revised Code. In addition, there waste,stimnny at the public hearhlg clairning that if the Ulsh Road crossing is closed, UlshRoad will be changed to a dead-end road. As a result, illegal trash dumping will increaseon Ulsh Road and there will be more incidents involving persons vandaliziatg farmequipnent sitaated on Ulsh Road. The Commission believes that the official responses toany alleged ctiixdnal activity in Claridon 7'ownship should snnilarly be addressed at thelocal level by Claridon Township. Puially, one public witness indicated that closing theUlsh Road crossing might have a negative effect on property values. We would note thatthere are a myriad of things and events that can and do affect the relative property valuesof houses and real estate; however, there is nothing in the recordevidence regarding theeconomic efEect closing the Ulsh Road crossing` will or will not have on property locatedon Ulsh Road or in the vicinity of the I7lsh Road crossing. Accordingly, we believe thatthe evidence demonstrates that there is not a demonstrable need of the Ulsh Road crosshlgto exist and, thereforc,xhe petitzonto close the Ulsh Road crossing should be grartted.

At the August 12, 2009 acijudicatory liearing, CSX sought to read into the recordportions of two depositions of indiviciuals who were not present.7 The attorney examinerdenied CSX's ret{uest finding that the Commission's rules did tlot permit such a practiceand that under Ohio Civil Rule 32, the circumstances uilder which a deposition transcriptinay be read into the recerd, in the absence of the witnesses, did not exist in this case. OnSeptember 30, 2009, CSX filed a letter requesting that the Commission consider thetranscripts of the depositions in arriving at its decision. CSX claimed, in part, tl at, under

7 C9X deposed three izidividuals, Cliff Canterbury, Roger Kepford, nnd Gary Collins, all of whom resid

outsitie YranklinCounty.

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09=125-RR-UNC -11-

Ohio Civil Rule 32, the deposition of a wiiness may be ased if that witness is beyond thesubpoena power of the court in which the action is pending or resides outsicle of thecounty in which the action is pending. CSX claimed that, because the two deposedwitnesses live outside Franklin County, whfch it claimed is where the action is pcnding, itshould have been permitted to read the transcripts into evidence at the adjudicatoryhearing.

Initially, we note that CSX's request was improperly made through the filing of aletter, rather than a motion, pursuant to Rule 4901-1-12, Ohio -Administrative Code(O,A:C.). Secondly; it is well established that the Commission has broad discretion as tohow it manages its cases and procedures during hearings and that it is not strictly boundby the Ohio Rules of Fvidence or the Ohio Civil Rules. Nevertheless, we find no merit toCSX's arguinent relating to Ohio Civil Rule 32, which provides a limited nuntbei• ofex¢eptions where depositiorts may be used at hearing when the deposed individuals arenot present. In particular, CSX failed at the hearing to identify how the circumsfances ofthis case qualify as an exception under Ohio Civil Rule 32. Furthermore, CSX's post-hearing argument that the depositions should be considered because the two deposedindividuals live outside Franklin County and beyond the subpoena power of theCommission frankly lacks merit. C5X readily conceded to the attorney examiner at thehearing that it could have subpoenaed these two individuals, but simply chose not to doso (Tr. II at 8384). Nor did CSX cite, at hearing or in its September 30, 2009 letter, that itwould have incurred some hardship by attempting to subpoena the two men. It simplychose not to do so. More importantly though, CSX did choose to subpoena ChiefCanterbury, one of the three individuals it depoaed in this case, to appear at theadjudicatory hearing, eveit though Chief Canterbury resides outside iiranklin County 8Accordingly, we deny CSX's request to consider the transcripts of the depositions.

Pursuant to Section 9907,474, Revised Code, if after the hearing it is the opinion ofthe Coinmission that there is not a demonstrable need for the crossing to exist and that thecrossiiig sltould be closed, the Cornmission shall issue an order to the legislative autltorityof the municipal corporation in wluch the crossing is located directing it to discontinue thecrossing and close it to vehicular traffic or to pedestrian traffic, or both, by ordinance. 'Thelegislative authority of the municipal corporation, within 30 days after receipt of the order

froin the Connn'rssion, shall discontinue the crdssing and close it to vehicular traffic, or topedestrian traffic, or both, as specified in the order of the Cotnanission. In tlus case, theevidence demonstrates that there is not a demonstrable need for the Uleh Road crossing toexist and it should be closed. Accordingly, within 30 days of this opinicin and order,Ciaridon Township, as the local highway authority for the LAsh Road crossing, is directedto issue an ordinance discontinuing the use of the Ulsh Road crossing. Also, withiui 30

On August 6, 2009, C'SH docketed a motion for a subpoena and a subpnena signed by the attorneyexaminer directing Clint Canterbury to appear at the Augustl2, 2009 adlud3ca[ery heaiing in Columbus.

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days of this opinion and order, Clnrtdon Township Is diivcted to close tlie Ulsh Roadcrossuif; to all vehicular and pedestrian traffic.

PINDINGS OF EACI' AND CONCLUSIONS OF LAW:

(1) On 1'ebruaiy 18, 2009, as amended on March 16, 2009, CSX fileda petition to ctose the tJlsh Road crossing.

(2) On March 23, 2009, Claridon Township filed objections to

(3)

CSX's petition.

A local public hearing was held in Caledonia, Ohio, on Vfa,v 4,

2009.

(4) The evidentiary hearhlg was held at thc offiees of thc

(5)

(6)

(7)

Conunission on July 14, 2009,

CSX's petition was filed pursuant to Sections 4907.474 and0.907.475, Revised Code,

I'roof of publication of the local public hearing was published

in The Nlarion Star, a newspaper of general circulation in

Marion County, Ohio.

T'ho evidence demonstrates that there is not a demonstrableneed for the Ulsh Road crossing to exist.

ORDER:

It is, therefore,

ORDERED, That CSX's petition for closure of the Ulsh Road crossing be granted. It

is, fu1•ther,

ORDERED, 'I'hat, within 30 (lays of this opinion and order, Claridon ToHmshipissue an ordinance discontinuing the use of the Ulsh Road crossing to vehicles and

pedestrians, ltis,fuxther,

{7Rt7ERED, Tliat, within 30 days of this opinion and order, Claridoti'I'ownshipclose the Ulsh Road crossing to all vehicularand pedestrian traffic, It is, further,

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4RDERED, 'rhat a copy of this opinion and order be served on CSX, ClaridonTownship, and all other intere.sted persons of record.

THE PT18LfC UTILITIBS COMMISSION OF OHIO

AlanR, Schriber, Chairman

Valerie A. l.,enutue Cheryl L. Roberto

9Fsr:ct

Entered in the Jourrial

^ ^ 81fl7,g

Renee J. )enkinsSecretary

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BEFORE

THFs PUBLIC iPTILiTiFS COMMISSION OF OHIO

In the Matter of the Petition of CSXTransportation, Inc. to Close to Vehicnlar'Tzaffic the County Road 205/Ulsh RoadGrade Crossing (262-061N), Located inClaridon'1'ownship, Marion County, Ohio.

Case No. 49-125-RR-UNC

UNTRY ON RHHEARiNG

The Commission finds:

(1) By opinion and order of October 28, 2009, the Commissionfound that there was no demonstrable need for the CountyRoad 205/Ulsh Road grade crosaing to exist, pursuant toSections 4907.474 and 4907,475, RevLaed Code, and granted thepetition of CSX Transportation, Inc. (CSX) to close the t77shRoad grade crossing.

(2) 9ection 490330, Revised Code, lndicates that any party whohas entered an appearance in a Commission proceeding mayapply for rehearing with respect to any matters determined byfiling an application within 30 days after the entry of the orderupon the journal of the Commission. Such application shall setforth specifieaIIy the ground or grounds on which the appticantconsiders the order to be unreasonable or uniawful.

(3) Section 4903.70, Revised Code, also provides that if theConunission grants such rehearing, it shall specify the purposefor which rehearing is granted and s6all also specify the scopeof the additional evidence, if any, that w31i be taken but ft shaAnot take any evidence that, with reasonable diligence, couldhave been offered tipon the original heaxing.

(4) On November 24, 2009, the Claridon Township Trustees(Township) filed a document entitled application and motionfor reheaiing pursuant to Revised Code Sec. 4903.10. TheTownship states that it seeksrehearing to give a fuller accountof the damage and injury to the Township and its residents forfour topics. In its first topic, the Township requests that theCommission consider the 9mpact on the availabHity ofemergency response services, including fire, EM3, and lawenforcement, In the event that the other road crossings in the

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(5)

vicinity are closed for railroad repair or maintenance if the UlshRoad cro$ing is closed. Second, the Township requests that theCommission consider the unreimbursed expense likely to beincurred by the Townshtp ln providing an adequate turn-around area on Ulah Road if the crossing is dosed. Tn its thirdtopic, the Tocvnship requests that the Commission consider theunreimbursed expense likely to be incurred by the Townshlp asa result of vandalism and unlawfut svaste dumping on andalong Ulsh Road if the crossing is dosed and tbrough traffic isno longerpermitted to provide a checkon such acfivities.Fourth the Township requests that the Coumtission comsiderthe comparative cost of providing aetive crossing warningdevices, such as flashing lights or gates, as contrasted with thecosts of providing a turn-around area at the end of Uish Road ifthe crossing is closed. The Township aLso requests that theCommission stay enforcement of the October 28, 2009 opintonand order until rehearing can be held. The Township'sdocument is not accompanied by a memorandum in support asrequired by Rule 4901-1-35, Ohio Administrative Code (O.A-C.).

On December 2, 2009, CSX filed a memorandum contra theapplication for rehearing. In its mranorandum contra, CSXstates that the application for rehearing faiL9 to state specifirallythe ground or grounds on which the applicant considers the .order to be unreasonable or unlawful, as required under Section4903.10, Revised Code. CSX al.sa argues that the appUcation forrehearing is defective because there is no memorandum Insupport which, under Rule 49012-1-35, O.A.C, must accompanythe application for rehearing and be filed at the same time as theapplication for rehearing. CSX also asserts that the issues raisedby the 'Township in its application for rehearing were fuDyconsidered by the Conunission and discussed in its opinion anorder. Furthermore, CSX argues that the Township had theopportunity at the hearurg to present any evidence on the issuesit raised in its application for reheazing, but it chose not to doso. Iastly, CSX claims that the Township has failed to explainhow several of the issues on which it seeks additional hearingare relevant to the closure factors set forth in the applicablestatutes.

(6) Upon review, the Commission finds no merit to the Townsidp'sdocament entitled application and motion for rehearingpursuant to Revised Code Sec. 4903.10. The Township failed to

-2-

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(7)

set forth specifirBlly the ground or grounds on which itconsiders the opinion and order to be unreasonable or unlawful,as required by Section 4963.10, Revised Code. Instead, theTownship merely states that it wants to give a fuller aoconrtt ofthe four topics listed. At the May 4, 2(K19locral hearir5g held inCaledonia, Ohio, public testimony was provided on severalissues, including emergency response service in ClaridonTownship, a turnaround at the crossing, and the occursence ofvandalism and waste dumping along Ulsh Road if tlw crossingis closed. Furthermore, at the August 12, 2()09 adjudicatoryhearing, Chief Canterbury provided testimony regardingemergency response service in Claridon Townahip and OhioRail and Development Commission witnexs Todd Darfasprovided testimony on a turnaround at the crossing, as well asthe appro)dnate cost of waming tights and gates at gradecrossings in Ohio. All of tltis evidence was considered by theCommission in its detennination in this case. At theadjudicatory hearing, the Township could have, withreasonable diligence, offerad the additional evidence it nowseeks to offer through its filing on emergency response services,a tarn-around at the crossing, potential waste dumping andvandalism along Ulslt Road, and the comparative coste of activewarning devices. The Towoship has provided no explanationwhy the purported additional evidence could not have beenprovided at the heardngs in this case. Therefore, pursuant toSection 4903.10, Revised Code, the Commission sha11 not takeany additional evidence cm these subject matters through arehearing. Accordingly, thc Tovrnsldp's application and motionfor rehearing should be denied and its request for a stay should

be denied.

In our October 28, 2009, opinion and order, we orderedClaridon Township to issue an ordinance discontinuing the useof the crossing to vehicles and pedestrians and to close thecrossing within 30 days of the date of the opinion and order.Having denied the Township's appltcation and motion forhearing, the Township should now, if it has not ahêady done so,issue an ordinance that discontinues the use of the crossing tovehicles and pedestrians and closes the crossing by January 15,2010.

Stis, therefore,

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ORDERED, That Claridon Township's appiication and motion for rehearing bedenied and its request for a stay be denied. It is, fnrther,

ORDHRED, That Claridon Township issue an ordinance that di.scontinues use of thecrossing to pedestrians and vehicles and closes the crossing by January 15, 2010. It is,further,

ORDERED, That copies of this entry on rehearing be served upon parties of iecrord.

THE PUBLIGUTI[.ITIES COivMASQON OP OHIO

Alan R. Schriber, Chairman

&L7 e4^ 1^^

SEF:ct

Paul A. Centolella

Valerie A.

Entered.in the JournaiDEC 16 2009

Renet: J. JenkinaSecretary

^^^-Ch y1 L. Roberto

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In Re:

BEFORE THE PUBLIC UTILITIFS COMMISSION OF OHIO

PUBLTC I-IEARING

In t:he matter of thePetition of CSXTransportation, Inc., i:o:closo to veh.icular --:----traffic the County Road :Case No. 09-125-RR-UNC

205/Ulsh Rond GradeCrossing (262-067.N)located inClaridonTownship, Marion County,:Ohio.

PROCEEDINGS

Before Scott Farkas, Hearing Examiner, at the

Claridon Township Building, 2272

Caledonia-Climax Road, Caledonia, Ohio, on

Monday, May 4, 2009, at 6:00 p.tn.

ARMSTRONG & OKEY, INC.222 East Town Street, 2ttd Floor

Columbus, Ohio 43215-5201(614) 224-9481/(000) 223-9481

Fax (614) 224-5724

Proceedings

Armstrong & Okey, Inc. Columbus, Ohio 614-224-9481

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MS. ULSH: Yeah.

MR. WICKERSHOM: It's abouC 6 mile,

but it's a shortcut like she says. They come

down Columbus-Sandusky Road, as you see there,

they come ap that and they would come down and

there would be a shortcut for them to cut

throuqh to get to the schools.

HEARING EXAMINER FARKAS: Okay. So

they're north of where Ulsh Road meets

Columbus-Sandusky?

MR. WICKERSHOM: Yes. North and

west.

HEARING EXAMINER FARKAS: Okay.

North and west_ How many farmers are using the

crossing?

MS. ULSH: There's probably at least

three, two or three.

HEARING EXAMINER FARKAS: Okay.

MS. IJLSH: Chip and Marty, and the

other one farms the otherside down there. It

used to be Sholhertz.

HEARING EXAMINER FARKAS: Now, can

you describe for me, for instance, or maybe

someone else can, the difficulty that the

farmers would face if they can't use the

Armstronq & Okey, Tnc. Columbus, Ohio 614-229-9401

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yousee a tractor-trailer going down there?

MR. BoGER: I'm guessing you can put

800 bushel5 on a semi. We're looking at corn,

200 btishel to an acre. If you got 1200 acres,

it's a lot of semis.

HEAIZINGEXAMINEI2 FARKAS; Soall

thase semis would then have to go in reverse,

back up?

MR. BOGER: Unless somebody, and I

don't want it to be the township, has to pay for

a turn-around. The boys simply can't take the

senlis out in the field. it's just impossible.

HP•,ARING EXAMINER FARK7IS: Let's go

off the record for a second.

(Off the record.)

HEARING EXAMINER PARKAS: Let's yo

back on the record.

MR. BOGER: When farmers are coming

up froni theeast and theylre going west, they

can s:imply pull off on Ulsh Road, be off 98.

They send themselves approximately a iiule and a

half plus they're oft the enain highways. If

you're following a combine you're looking at 12,

14 feet and the sooner they can get offof 309,

off 98 the better. So Ulsh Road is kind of a


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iiice side road, if they caYa squeeze off the side

and 1et cars pass, buC they don'C have to worry

about thaC steady flow of traffic. I take my

hay baler over that way when I go over that way

to roLand bale hay and I use U1sh Road just to

.... ....... ..... . . . .get off the highways.

IIEARTNG EXAMINER FARKAS: Okay.

Anybcady else?

MS. UhSH; Back to the scliool bus

situation here.

IIF.ARZNG EXAMINER FARKAS: Okay,

sure.

MS, tiLSH: To ane she would be

coming -- one of nay grandki.d's ride c.omes out of

Grandvi-ew Est.ates and they would be crossing, if

they close Ulsh Road, she'd have to cross at

98. Now, that's kind of a sharp turn for her to

have to coine down that Marion-Galion Road too,

you know, in front of traffic, and if she ha:; to

go that way to come home and go down and cross

at 98, it's kind of hard for those school buses

to make that turn. I'm sure Mr. Wickeishom

would testify to that too.

HEARING E.XhMINER FARKAS: Okay.

MR. WICKliRSHOM: True.

Armstrong & nkey, Inc. Co3.umbus, OhSo 614-224-94L31

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BCFOAE THE PDBLIC C7TII,TTIES COMMISSION OF oElIO

In ttie Matter of thePetition of CSXTransport.ation, Inc- toClose to Vehi.cular Tra£fic:County Road 205JU].shRoad:Case No.09-125-RR-UNG

Grade Crossi.ng (262-061N) :Located in ClaridonTownship, Marion Coonty,

Ohio.

PROCEEDINGS

before Mr. Scott E. Farkas, Hearing Hlxaminer, at the

Public IItilities Commission of Ohio, 180 EaSt Broad

St;reot, Room 11.-F, Col.umbus, Ohio, called at 10:00

a-m- on Wednesday, August 12, 2009.

AhMSTRONG & OKEY, INC.222 East Town St:r-eet, 2nd Floor

Co7nmbus, Ohio 43215(614) 224-9481 - (800) 223-9481

Fax - (614) 224-5724


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accident history or crashes at this particular

crossing as of the time of the review?

A. Well, usually there's a fivo-year hi.story

that thc PUCO representative will run. Our

diagnostic surveysare done,if it's a -- .i.f it's in

the tederalprogram, Che PUCO conducts and

coordinates the diagnostic review. If it's our

money, and we have some other programs, we'il do our

own diagnostic review.

So basically the database is showing that

this crossing came up as the 12th most hazardous

crossîng in the state of Ohio at the time, when that

formula was ran; that could vary from day to day.

Another crash at any location in tho state of Ohio

could move that up or down.

Q. So in this instance at this titne it was

reilecting a couple of accidents in the previous €ive

years-

A. Yes.

Q. And as of that date it was showing a

hazard ranking of 12; is that correct?

A. Right. I think the last, I believe the

last crossing that -- or the last crash at the

crossing was sometime the previous May in 2008.

9. Now, below that on the form there's an


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We feel a closed cro.^,sinq is a safe

crossing, and anytime we can direct traffic frorn a

crossing auch as Ulsh Road -- and the observation

it's a very skewed crossing. It's a hump crossing.

It's a double-hump crossing. There used tobe

anot.lier line tliat was used. SoifyoutravelU1sYr

Road, you come up over the crossinq; asyotr start to

approach that there's a hnmp and then there's another

huntp with the ci.ossi_ng that sits well above

Marion-6alion Road and -- iot alone the elovation of

Ulsli Road.

And as yoa travc•l fromeither direction,

you have to really stop and take a].ook at where the

train traffic is because the sight distance is fine,

you know, bijt there's -- as Limes chanqe and seasons

change there's brush and ].eaves and ttiings, and as

far as the crossing is concerned, that's pretty we1.1

maintained. But it's such a skew that it's a very

hazardous crossing.

So, you knovr, when we go out to these

diagnostic surveys, we're looking for these sort nf

thi.ngs, you know, is this a candidate. Well, this is

a candidate. We have, you know, three other roads

thaC could be traveled with very little inconvenience

to anybody at a much safer distance to travel than to

Armstrong & Okey, Inc. Coliimbus, Ohio 614-22

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go over Ulsh Road.

Ul.sh Road, in rny opinion, is probably one

of the, worst cases of a crossing scenario as far as

safety that I've seen in my 15, 16 years aC the Rail

Commission,soit's a prime candidate for closure.

So we attend these meetings and we offer -- and when

1 attended the meetings of the township, you know, T

felt there was a good consensus that the township

trustees wanted to see the safety for their

constituents in the area, but that, you know, when

you go to these meetings, nobody ever comes out to

support it, you know.

A1l the people that are in favor for

these kind of closures stay home. It's the people

that are inconvenienced by going another 3/10 of a

milo ori a much better condition, road condition,

safety condition, and across the tracks a better

condition, that oppose it.

In my opinion, Ulsh Road is a shortcut to

cut out any kind of train traffic that mny he at the

C7lsh Road crossing or the 98 crossing. And my

observations being out there, I've seen it over and

over again, that people will actually try to beat the

train according to which direction it's going. If

it's blocking the 98 crossing, coming from that

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CSX Procee

on the diagnostic survey there was a

mul.tipage document T believe which was Petitioner

Exhihit 1, there's a reference there to the speed

limit for veh5.cles on Ulsh Road and it riotes that

Lhat's 55milesan hour;isthatright?

A. That's what it says.

Q. Now, you Cestified, I believe, that it

was, quote, "impossible to drive 55 at that

location." By "that location" I assume you were

referring to the crossing?

A. It's possible, but it's very dangerous.

The crossirig slightly starts to turn in a curve. If

you're eoming from 98 down Ulsh Road, as you approach

Marion-GaJ.ion Road it starts to go into a slight

curve, the crossing is very elevated or humped, and

then it drops off the other side. So it would be

like being on a roller coaster. It would be very

dangerous to travel 55 Eat that location.

Q. When you were, you've indicated you've

been out to the crossing on sevexal occasions, did

you observe traffic on that road, ori Ulsh Road --

A. Yes, I did.

Q_ -- going through the orossing?

A. Yes, I did, sir.

Q. Recognizi.ng that you probably didn't have


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or level of HazMat tr.affic that would utilize the

U15h Road crossing?

A_ We asked that question in the diagnostics

and, once again, unless somebody's standing out there

doing an actual. survey in a 24-hour period how many

would cxossit at that paiticular.crossing,youknow,

when we talk IlazMat, it can qo anything from gasoline

trucks that are fueling the nearby farms or propane

trucks, or even the local farmer that's hauling

fertilizer, thorse are all HazMat items. I've seen

farm chemicals, you know, I've been out there, I

think there's soybeans out there right now on most of

the quadrants and t'veseen farmers with fertilizer

qo across that crossing.

So you always have -- and it's very hard

to estimate what amount of. IiazMat crosses a

particular crossing. I think when it gets into more

dangerous chemicals and the local authorities are

moriitoring, you krtow, what's crossing a particular

route, and you can analyze that, you know, at this

particular crossi.ng we're assuming that, and I've

seen in persori there are chemicals going across that

crossing that, you ktiow, whether it be a farmer or a

gas truck or a propane truck deliverinq fuel.

Q. You were questioned -- you were asked

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you can't have Mayox So-and-so calling in, Senator

So-and-so. So we use a formula, and the best way to

do that was based on the federal formula and that

formula is generated by the Federal Rail

Administration that monitors traffic accidents at

railroad crossings.

The variables that go into those formulas

are daily traffic, train traffic, sight distance,

school bus, HazMat, and obviously fatalities and

crashes at railroad crossings. Unfortunately,

fatalities al.ways push you right to the top as

accidents do also. So those variables can change

from day to day.

But that list is generated through tho

PUCO. When we come up with our funding source -- our

budget allows us to do a set amount of crossings, and

so we go to the PUCO Rail division and they generate

that list for us. When we're spending federal money,

the PUCO conducts, as this particular location, this

was one of the picks that came in 12th for us to do

a diagnostic susvey.

So that list is generated by the Federal

Rail Administration, to answer your question, the

PUCO types in the variables of that and it comes back

as one of the particular c:rossings that we're to look

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A. Correct. And them arc, again, them are

rough estimates, and I've offered Co show exact

figures, but T've riot . . .

Q. I understand. But you're comfort:able

with those approxi_mations, correct'?. .. A. Sure. .. . ... .. . .... .. .. ...... ... . . . ..... .

Q. You have to -- T don't know if the court

reporter -- you got it, okay.

Now, there was a direcCive or verbal

policy, if you will, issued by the prior chief, I

think 1 understand that to be Chief Stafford --

A. Correct:.

Q, -- which you have continued since you've

been iri charge that fi.re department personnel are

generally not to use the Ulsh Road crossing to

respond to an incident, correct?

A. Correct.

Q. And in fact, thore's also a policy in

place when you're responding from the station that

for calls north that are locations north of the

tracks, the CSX tracks, in responding you try to sCay

north of the tracks, and in cal.ls for ca11s souC.h of

the tracks you would obviously cross the tracks and

..,respond to the south, correct?

A. That is correct.

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Q. And the reasort or at least one reason

that you would liave a policy that would say that if

it's a call that is north of the tracks, you respond

by going -- staying north of the tracks is as a fire

department you don't want to got caught on the

oppos7.teside of the tracks if you can help it with a

train coming through or, even worse, a train stopped

or somehow blocking your method of getting through.

A. That is correct.

Q. Okay. And you also generally want your

trucks and ambulances to travel primarily on the main

highways to the extent they cari. Obviously, they

have to get off those at some point Co respond, but

they terid to travel more on the main roadways_

A. That is correct.

Q. And going east and west within -- if

we're, first of all, talking south of the CSX tracks,

your main east-went corridor is Route 309.

A. That is correct.

Q. We talked about i.f the call requires you

to go to somewhere that is north of the tracks, your

policy is that you try to stay north of the tracks in

responding. So I just want to go through a couple of

examples to make sure I understand how the fire

departmeut would operate.

Armstrong & Okey, Znc. columbus, Ohio 614-224-9481

35

CSX Proceedings

147

start -- Lee, can I see those pictures? Do you still

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havo ttiem?

them or not.

MR. EVANS: Right here.

MR. WRIGHT: I don't know if I'll use

CROSS-EXAMINATI6N

By Mr. Wri.ght:

Q. Good afternoon, Mr. -- Canterbury?

Canterberry?

A. Canterbury. I'm sorry; I forgot your

name.

Q. I'm Bill Wriglit with the attorney

general's office, and I have just a couple questions

for you.

Early on in your examination by Mr. Evans

there was a reference to this verbal policy that

currently you use for response purposes relative to

using (Jlsh Road. What exactly is that policy?

A. The policy was always -- was in effect

prior to me being hired at the fire department from

the previous chief, that the idea is when they're

headirrg northwest off of 309, they can't look back to

the cast. You know, they can, it just takes a lot of

communication between the driver and the passenger to

Armstrong & okey, Irrc. Colunibus, Ohio 614--224-9481

I

I

36

CSX Proceedings

14B

do that.

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This whole -- so therefore it's not

practical, and the crossing grade is pretty steep

ttrere and it's just a really bad angle- hnd I don't

disagree this is a bad crossing at all; it is. But

when we're talking saving lives, it doesn`t do iay meri

any good to get hurt or be in harm's way to help

somebody else, now we've got double the problems, so

that's why the crossing was never used.

I£ the crossi.ng had gates, it would be

used. All this testimony is based on the First

Consolidated Fire District being at the station. Dur

station is located on the north side of the tracks.

The village of Caledonia and the town square is south

of the tracks. Everything you do in Caledonia

village is south of the tracks. So why, agai.n,would

we cross the tracks -- we have to cross the tracks at

sonie point no matter how you look at it.

And I think we cari put a very good

argument that when we're talking a heart attack, a

structure fire, people trapped, whether, it's a

railroad crossing or whatever it is, seconds and

minutes count. If we're on the south side of the

tracks, we'd stay on 309 and we'd use the Ulsh Road

crossinq, if it had gates. It it's a safe crossing.

Armstrong & Okey, Lnc. Columbus, Ohio 614-224-9481

37

The Public UtilitiesCommission of Ohio PETITIONER EXH16R I

Diagnostic Review Teazn Surv

Yunl¢ Ucntues ^.ommsswn ot vbioRzil Division

180 Catc BrVad StreetColumbus, OH 43215

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R,arueaNamc Csx Transportation GTaatLske

Bra"dJ0`^wme

NczatRR...Marton

iRRrakyote. . 94.32 . .. .. ... ..M,tvln^suam:

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a, vC vl {?GtSo 15en 7^b"^$2'7L03(Jntlude rvome-thg n' ôn-PhoiwNum ber)

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+.11ZK.., Gl^^b^t/ n2.912.

^^

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C^YT 4+^ ^6i 3049^ t C^s.4.

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it F9.

rn'on Cîn `^JJD

..T' oT Warnin Qevices Instaltedt QuanB Comments

AdvanceWarningSigns es NQ

Sw ' Sig+u - q YM'Stop Ahead' Signs Yos Y-No

pavement MarlSngsCrossbucks ^.s

Number o4 Tracks Signs Yes

Invencory Tags Yes No _

Intercannecced.HighwayTraffic5i naf Yes m o

Mast-Mounced F7ashing Ligha Yes ohCanulever Flashing lighcs Ye5 Na er.: Num

Sida YWcY

i`1oNo Nmber. I.en :

Aucornatic Gnus-_^

e

êells . Q Yes FILNOSidewalkGaceArms Yes No

'NO Tuni Si ns q Yes No

Iliumination

_

_q 7es

^

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Is crussing flagged 1>y crein crew? Q Yes

Orher.._ . ...Yas Q No

__._4.n. . - I

UPOATen (I 7R0o6)

38

„

Z}^Yes . o^l€no..deCxioMap^

Â(W, K J1m ri'o shile° S: Pef. D TO ÛPDAif:D ( 1 22006)

"PR6X,5-'a^PI+-, l^^rr.^ OF Ctâ^rr^ ^v+1 ^^^^N

39

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^(WVlC1^L ♦ -

Curb and Guaer. qFuncdoml (Curb height = 4" or more) Curb and Gucter. Functional (Curb height = 4" nr more)

(Gurb height = l.ets than 4") Ncci-fmitGaml(Curb halghc = F-ess s}an 4'7Q Non-tunalonal (..^ r

None

( j jllupgrade o-effic signal preempuon

(7 No improvements needed^ Q[hef (defin^^

UPDATED {I )12006)

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41

Field Uicrienssons

Sidewalk

Parkway

Roadway

Rv6dway

P*kway

Qunarand

Show NarthDirection

42

Fietd Sicetch. '

7^.-^ 27: 3 Pcj

n- a,2 5` i•'nmm u^w^

,,, J 1S ` ^^>y f1ertrz Lau-

ezsursQin

kcWh by:-

UPDATED ( 11/2006)

5

43

TABLE I

Clearing SigfSt Distances

um Audwrized TrainSpeed

Disiance(dY) AlongRailroad from Croasing (ft)

10 240

5 360

20 480

25 600

0 720

840

40 960

4 1080

0 1200

55 320

1440

1560

70 1680

75 800

B0 920

$

90

2

2160

$uurcc R-H Grade Crossing HandbookTaLle 36 (pp. 13b133)

Notes:All talculated disances are rounded up co the nexc hlgher 5-

focss Inap}sances indicated aro for 65-ft doublo boctem semi-traceer

need co

'emenc

trailers and Ievei single tr ck 90 degrss trossings; and msybe adjusced for muldpie cnck9. skewed trossing or

appraaches on grades.

Clearing Sight Diswnce Is co be measured In each vehlcle

cravel direcUOn at n?>n•^^P5 as viewed from a pviM25 feec fôm centerEme of nearesc &k in the cencer of

wtiithevsr travei lane is nearesc.Tlm dire5tlon along Vack

being measured.

UPDATEO ( 12/2006)

2Table

Stopping Sight Distances

Highway Vddtle Speedstante (dH) Aloslg Roadway

from Crossing (ic) -!I

0 n(

5 50

10 70105

20 13a

25 18022

4

feD

34049

;0 490

55 570

60

65 760

70 865

Sourtw p+H Gnde Grossing Hendbook'Txbla 35 (pp. 134-.31)

Noces:

A11 catculated distan<as are rounded up to the rsmxt higher 5•

toot inuesnent I

Distances indiwte4 are (or 65•(t double bottom ssmi-troCtor

tzaiiers an dry 1ev41 pavemcnis.

Scopping Slghc Aisiance is to be measured an each roadway

approach ta cross¢ig from scep bar.

6

44

MARION COUNTY ENGINEERING DEPARTMENTTRAFFIC COUNT FOR 24 HOURS

2°5COUNTY ROAD NUMBER(nrC9 &od17) c

sEcxxox

aATE

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