Pennsylvania-American Water Company

Transcription

1 CP vpcpcp A Pennsylvania-American Water Company 800 West Hershey Park Drive P.O. Box 888 Hershey, PA (717) FAX (717) o Susan D. Simms Associate Corporate Counsel January 11, 1999 James J. McNulty, Secretary Pennsylvania Public Utility Commission North Office Building, Room B-20 North St. & Commonwealth Ave., P. O. Box Harrisburg, Pennsylvania Dear Secretary McNutly: Re: Investigation upon the Commission s own Motion to determine the condition, disposition, and responsibility for maintenance of the existing crossing structure carrying Mary Street (T-439) above-the-grade of the track of the Reading, Blue Mountain and Northern Railroad Company in Fairview Township, Luzerne County (AAR SV Docket No Pursuant to your December 30, 1998 letter enclosing the Recommended Decision of Administrative Law Judge Richard M. Lovenwirth in the above-captioned proceeding, please be advised that Pennsylvania-American Water Company does not intend to file Exceptions in this proceeding; however, I reserve the right to file Replies to Exceptions. As evidenced by the enclosed Certificate of Service, all parties to this proceeding have been duly served a copy of this letter. Respectfully, Enclosure c: Parties of Record Susan D. Simms Associate Corporate Counsel SRB \ Dedicated to Quality Water and Superior Service An E.E.O. Employer M/F//H/V

2 BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION Investigation upon the Commission s own motion to determine the condition, disposition, and responsibility for maintenance of the existing crossing structure carrying Mary Street (T-439) Docket No above the grade of the track of the Reading, Blue Mountain and Northern Railroad Company in Fairview Township, Luzerne County (AAR S) CERTIFICATE OF SERVICE I hereby certify that I have this day served a copy of the foregoing documdnp upon the participants, listed below, in accordance with the requirements of 1.54: ^ BY FIRST CLASS MAIL o H. James Brozena County of Luzerne Luzerne County Courthouse Wilkes-Barre, PA Jeffrey H. Sunday, Esq. PG Energy Inc. Wilkes Barre Ctr., 39 Public Square Wilkes-Barre, PA Eric M. Hocky, Esq. Gollatz, Griffin & Erving, P.C. 213 W. Mine St., P. O. Box 796 Chester, PA David Salapa, Esquire PA PUC Transportation & Safety Rail Division Harrisburg, PA Alice Davis. Secretary Fairview Township 65 Shady Tree Drive Fairview, PA Benjamin C-Dunlap, Jr., Esq. Naumon, Smith, Shisslcr & Hall.c, 200 North Third St., 18" FI., PO^Bo^fUO Harrisburg, PA Jason D. Sharp, Assistant Counsel Department of Transportation Forum Place, 555 Walnut SV-- 9th Fk? Harrisburg, PA J Robert N. Gawlas, Jr, Esquire Fairview Township Wilkes-Barre, PA Dated this 11th day of January, Susan D. Simms, Esq. Pennsylvania-American Water Company 800 West Hershey Park Drive, P.O. Box 888 Hershey, Pennsylvania (717)

3 LAW OFFICES Rosenn, Jenkins Greenwald, L.L.P. 15 Soutk Franlelin Street Wilkes-Barre, Pennsylvania EUGENE ROTH DANIEL G. FLANNERY MARSHALL S. JACOBSON MURRAY UFBERG BRUCE C. ROSENTHAL DONALD H. BROBST ANTHONY J. DIXON JOSEPH L. PERSiCO HOWARD M. LEVINSON ALAN S. HOLLANDER GARRY S. TAROLI RICHARD A. RUSSO JAMES P. VALENTINE MARK A. VAN LOON LEE 5. PIATT ROBERT D. SCHAUB ROBERT N. GAWLAS, JR. STEVEN P. ROTH JAMES C. OSCHAL ** JOSEPH G. FERGUSON GEORGE F. SHOVLIN it MARY GRIFFIN CUMMINGS MARY JO KISHEL PATRICIA ERMEL LAKHIA H MARK W. DRASNIN LAWRENCE W. ROTH ELIZABETH C. LEO * NICHOLAS C. STROUMBAKJS MICHAEL K. DURICKO ERNEST A. SPOSTO. JR. THOMAS J. MacNEELY MICHAEL BRIECHLE Of Counsel: HAROLD ROSENN JOSEPH J. SAVTTZ 1El\/T January 19, 1999 Telephone Telecopier STo-eae-se^o Direct Dial Direct Fax I 5 Also admitted to practice in; * New York B Washington, D.C. t New Jersey it Florida Internet RJG@NEPAI_AW.COM Hazleton Office l 20 East Broad Street West Hazleton, PA Telephone I I 2 Telecopier Pennsylvania Public Utility Commission Prothonotary s Office P.O. Box 3265 Harrisburg, PA Re: JAN 1 loss In Re: Investigation - Fairview Townflfl^^"^ UTILITY COMMISSION: Docket No SECRETARY'S BUREAU To Whom it May Concern: Enclosed for filing in the above matter are the original and nine (9) copies of the Exceptions of Fairview Township, with an attached Certificate of Service, as well as a United States Postal Service Form 3817 Certificate of Mailing, attached to the cover of the original Exceptions of Fairview Township. Also enclosed is an extra copy of the Exceptions of Fairview Township, which we would appreciate your time-stamping and returning to us in the stamped, self-addressed envelope enclosed for your convenience. As indicated on the Certificate of Service, one (1) copy of the Exceptions of Fairview Township is being served on each party of record, as well as the Honorable Richard M. Lovenwirth, Administrative Law Judge. \

4 Rosenn, Jenkins & Greenwald, L.L.p. Pennsylvania Public Utility Commission Prothonotary s Office January 19, 1999 Page 2 Thank you for your attention to this matter. If you should have any questions, of course, please don t hesitate to call at your convenience. Sincerely, RNG/Iao Enclosures ROBERT N. GAWLAS, JR. cc: Honorable Richard M. Lovenwirth, Administrative Law Judge (w/enclosures) David Salapa, Esquire (w/enclosures) Susan Simms, Esquire (w/enclosures) Jason D. Sharp, Esquire (w/enclosures) Eric M. Hocky, Esquire (w/enclosures) Benjamin C. Dunlap, Jr., Esquire (w/enclosures) Jeffrey H. Sunday, Esquire (w/enclosures) H. James Brozena (w/enclosures)

5 COMMONWEALTH OF PENNSYLVANIA BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION Investigation Upon the Commission s Own Motion to determine the condition, disposition, and responsibility for maintenance of the existing crossing structure carrying Mary Street (T439) above-the-grade of the track of the Reading, Blue Mountain and Northern Railroad Company in Fairview Township, Luzerne County (AAR S). Docket Number EXCEPTIONS OF FAIRVIEW TOWNSHIP..w r,ow^s. ^u/l? /Vr foldeft JAN ROSENN, JENKINS & GREENWALD, L.L.P. BY: ROBERT N. GAWLAS, JR? ESQUIRE Attorney I.D. # South Franklin Street Wilkes-Barre, PA (717) DATED: January 19, 1999 Attorneys for FAIRVIEW TOWNSHIP ,1

6 TABLE OF CONTENTS Page INTRODUCTION...1 EXCEPTIONS ALLOCATION OF COSTS AND RESPONSIBILITY (a). Allocation to RBM&N (b). Allocation to PAWC and PGE...7 1(c). Allocation to Pennsylvania Department of Transportation...9 1(d). Exception in the Alternative to Allocation FUTURE MAINTENANCE OF BRIDGE TIME PERIOD IN WHICH PROJECT MUST BE COMPLETED INSTALLATION OF METAL GUIDE RAILS...14 CONCLUSION

7 V EXCEPTIONS OF FA1RVIEW TOWNSHIP INTRODUCTION FAIRVIEW TOWNSHIP (sometimes hereinafter referred to as TOWNSHIP ), through its attorneys, Rosenn, Jenkins & Greenwald, L.L.P., files the following exceptions to the Recommended Decision of the Honorable Richard M. Lovenwirth, Administrative Law Judge, which was issued on December 30, As more fully set forth below, FAIRVIEW TOWNSHIP takes exception to Paragraphs 3 through 8, 12, 17 through 19, and 21 through 24 of the Recommended Decision s Section V, Proposed Order (pages 69-74), as well as all corresponding sections of the Proposed Findings of Fact, Proposed Conclusions of Law, and Discussion contained in the Recommended Decision. ALLOCATION OF COSTS AND RESPONSIBILITY 1. FAIRVIEW TOWNSHIP takes exception to the proposed Allocation of Costs contained in the Recommended Decision, as well as to the recommendation that the TOWNSHIP be obligated, at its initial cost and expense: (1) to prepare and submit construction plans for the demolition and removal of the existing bridge and the construction of a new bridge; (2) to prepare and submit metes and bounds description of railroad property; (3) to furnish all material and do all work necessary to construct the new bridge and highway approaches in accordance with approved construction plans; and (4) to furnish all materials and do all work necessary to maintain the

8 substructure and superstructure of the bridge, all as being an unjust and unreasonable allocation of cost, expense and responsibility. In this regard, the TOWNSHIP takes exception to Paragraphs 6 through 8,12,17 through 19, and 21 through 24 of the Proposed Order found at Section V of the Recommended Decision. (Recommended Decision R.D. pages 69-74). FAIRVIEW TOWNSHIP submits that: (1) Reading, Blue Mountain and Northern Railroad Company ( RBM&N ) should be given the responsibility, at its initial cost and expense, to perform the obligations which the Recommended Decision suggests should be assigned to FAIRVIEW TOWNSHIP, at Paragraphs 6 through 8, 12, 17 through 19, and 21 through 24; (2) RBM&N, LUZERNE COUNTY ( the COUNTY ), Pennsylvania American Water Company ( PAWC ), and PG Energy ( PGE ), should be allocated greater shares of the cost and expense involved in the work recommended by the Recommended Decision; (3) PennDOT should be allocated a share of such cost and expense. FAIRVIEW TOWNSHIP also takes exception, in the alternative, to the failure of the Recommended Decision to require the other parties to also contribute to the cost and expense of the demolition and removal of the existing bridge. Allocation to RBM&N 1(a). The Recommended Decision suggests that, despite previous actions of the Commission, it is appropriate that RBM&N bear only forty (40%) percent of the project cost, instead of one hundred (100%) percent as its predecessors-in-title, the Central Railroad of New Jersey and CONRAIL, had done. (R.D. page 58). In reaching this conclusion, the Recommended Decision cites purported changes in circumstances which it suggests support the recommended change in the

9 allocation of responsibility. The Recommended Decision acknowledges that an administrative agency must render consistent opinions and should either follow, distinguish or overrule its own precedent. (R.D. pages 32-33, citing Bell Atlantic v. Pennsylvania Public Utility Commission. 672 A.2d 352 (Pa. Cmwlth. 1996); Standard Fire Insurance Co. v. Insurance Department. 148 Pa. Cmwlth. 350,611 A.2d 356 (1992)). However, in reaching the conclusion that the existing situation warrants a change from past Commission Orders, the Recommended Decision fails to sufficiently distinguish the existing situation from those at the time of the previous Orders. At Section IV. 3 (R.D. pages 33-35), the Recommended Decision notes that the rail line located below the crossing structure was conveyed to RBM&N by CONRAIL by Deed dated August 19,1996, whereby RBM&N agreed to assume all existing and future obligations and responsibilities imposed by the Commission for, among other things, the Mary Street Bridge, including but not limited to the removal, repairing or restoration of the Bridge as ordered by the Commission. The Recommended Decision correctly finds that RBM&N is the current owner of the rail line at the Mary Street crossing. (R.D. page 34). In this same section, however, the Recommended Decision incorrectly states [t]here was no evidence presented about the circumstances surrounding the construction, or even the ownership of the [Mary Street Bridge]. (R.D. page 34). This is directly at odds with the record and with the Recommended Decision s own Proposed Findings of Fact, Paragraphs 6 and 10 (R.D. pages 6-7), which find that the bridge was built in 1894 by the Central Railroad of New Jersey, predecessor-intitle to CONRAIL and RBM&N. (citing N.T. 37; RBM&N Statement No. 1, Question 3 and attached Exhibits; and TOWNSHIP Exhibit 24). There was no evidence submitted that ownership

10 of the bridge was transferred from the Central Railroad of New Jersey, CONRAIL or RBM&N to any other party. The Recommended Decision, at page 34, also inappropriately states that CONRAIL has testified many times before this Commission that they (sic) did not receive ownership of any highway bridge over its tracks. However, the Recommended Decision fails to cite any reference to the record for this contention, which should be refused by the Commission pursuant to the Commonwealth s Court decision in East Rockhill Township v. Pennsylvania Public Utility Commission. 540 A.2d 600, 605 (Pa. Cmwlth. 1998). In any event, the Recommended Decision notes that ownership of the track is a more important factor. In this regard, the Recommended Decision appropriately finds that RBM&N is the current owner of the rail line at the Mary Street crossing (R.D. pages 5-6, 34), and there was no evidence that any entity other than the Central Railroad of New Jersey, CONRAIL or RBM&N ever owned the rail line at the crossing. Accordingly, in this regard, there was no change in situation to justify a change in the allocation of responsibility for the crossing. At Section IV. 6 (R.D. pages 43-45), the Recommended Decision states that FAIRVIEW TOWNSHIP, LUZERNE COUNTY, PennDOT, or RBM&N could have been selected to construct the new bridge and highway approaches. (R.D. pages 43-44). The Recommended Decision, however, fails to sufficiently explain why the TOWNSHIP, which previously had never been responsible for repair or maintenance of the substructure or superstructure of the bridge, should now be selected for primary responsibility for replacement of the bridge and for future maintenance

11 Instead, at Section IV. 8. (R.D. pages 52-54), the Recommended Decision states: (R.D. pages 53-54). The circumstances at this crossing have changed since its original construction. First the bridge was constructed to allow the railroad to get through. Now the bridge needs to be replaced to accommodate the highway traveler. The new bridge will benefit the railroad in that the benefits associated with a grade separated crossing will continue. The local residents will get a new crossing that is safe, i.e. two lanes versus single lane, acceptable legal loads and improved highway approaches. The rail line has changed hands several times, with a much smaller railroad, with fewer train movements, now owning the rail line. However, the Recommended Decision fails to recognize that the bridge is still required because of the presence of the railroad tracks below it. Previously, there had been an at-grade crossing at the lower end of Lehigh Street. The bridge was built in 1894 so that the railroad would have the benefit of a separated grade crossing. If the railroad tracks were not located where they are, there would have been no need for construction of the bridge in the first place: the lower end of Lehigh Street could have continued to have been used for ingress and egress to Solomon Gap.1 Likewise, it is the continued presence of the railroad tracks which continues to require the separated grade crossing in this area. The situation is the same in this regard as it was at the time of the previous Commission Orders placing the responsibility for the Mary Street Bridge upon the railroad. * 'In this regard, the Recommended Decision s Proposed Finding of Fact 35 (R.D. page 14), which asserts that Lehigh Street, in the area of the old railroad crossing, was vacated in 1927, is not supported by the Record. Instead, it was the upper end of Lehigh Street, at the other end from the old at-grade crossing, which was vacated in See N.T , 111, 113,

12 Only the ownership of the railroad tracks has changed. What has not changed is the fact that the bridge is made necessary by the presence of the railroad tracks. Therefore, the replacement of the Mary Street Bridge puts FAIRVIEW TOWNSHIP in no better position than it occupied when the existing structure was first constructed by the railroad. The fact that RBM&N may be a smaller railroad than CONRAIL, with fewer train movements, does not justify imposing more of the costs and responsibility on the TOWNSHIP. As the Recommended Decision notes, RBM&N had a full opportunity to review the lines it was purchasing from CONRAIL pursuant to the Deed whereby it agreed to assume all present and future obligations imposed by the Commission with regard to the bridge. In addition, as discussed further below, it must also be noted that, whereas past Commission Orders had required the railroad to maintain the substructure and superstructure of the bridge, the Recommended Decision recommends that the TOWNSHIP be made responsible for the maintenance of the substructure and superstructure of the new bridge. In this case, the Recommended Decision is inconsistent with previous Orders of the Commission and fails to sufficiently follow, distinguish or overrule the Commission s own precedent. Bell Atlantic v. Pennsylvania Public Utility Commission. 672 A.2d 352, 354 (Pa. Cmwlth. 1996). FAIRVIEW TOWNSHIP submits that, of the five factors discussed by the Commonwealth Court in Greene Township v. Pennsylvania Public Utility Commission. 668 A.2d 615, 619 (Pa. Cmwlth. 1995), most, if not all, require that RBM&N, in its own right and as successor-in-title to Central Railroad of New Jersey and CONRAIL, be assigned primary responsibility for removing the existing bridge and building a new bridge at the crossing. In this regard, (1) RBM&N is the

13 successor-in-title to Central Railroad of New Jersey, which originally built the Mary Street Bridge; (2) RBM&N is the successor-in-title to Central Railroad of New Jersey and CONRAIL, which owned and maintained the crossing and have historically been charged with the obligations of maintaining the crossing; (3) the benefit initially conferred with the construction of the bridge was that of the Central Railroad of New Jersey, which received the benefits of a separated grade crossing, benefits which the Recommended Decision finds RBM&N continues to enjoy today; (4) to the extent that the current condition of the Mary Street Bridge is the result of negligent maintenance, the responsibility lies with RBM&N, as the successor-in-title to Central Railroad of New Jersey and CONRAIL; and (5) RBM&N, as noted by the Recommended Decision, will receive substantial benefit from the replacement of the Mary Street Bridge. See Greene Township. 668 A.2d at 619. With regard to the allocation of costs, expenses and responsibility to RBM&N, the following portions of the Initial Brief of F AIRVIEW TOWNSHIP, and the portions of the Record cited therein, are incorporated by reference and citation: Section III, Summary of Testimony, pages 2-6; Section IV, Proposed Findings of Fact, Paragraphs 1 through 8,12,67, and 71; Section VI, Argument, pages 31-36; Section VII, Proposed Conclusions of Law, Paragraphs 4, 5, 6, 8, and 9; and Section VIII, Proposed Order, Paragraph 1. The following portions of the Reply Brief of FAIRVIEW TOWNSHIP, and the portions of the Record cited therein, are incorporated by reference and citation: Section II, Argument, pages 1-4. Allocation to PAWC and PGE 1 (b). FAIRVIEW TOWNSHIP also submits that the Recommended Decision should have allocated a greater share of the costs and expenses to the PENNSYLVANIA-AMERICAN WATER

14 COMPANY ( PAWC ) and to PG ENERGY ( PGE ), which have attached mains to the Mary Street Bridge, since those utilities have derived greater benefit from the existing bridge and will derive greater benefit from the new bridge than is recognized by the Recommended Decision. The Recommended Decision suggests imposing upon them only the burden of removing their own facilities from the bridge before it is demolished and relocating those facilities to accommodate the construction of the new bridge. (R.D. pages 61 and 72, paragraph 13). In this regard, however, the Recommended Decision s Proposed Findings of Fact, at Paragraphs 47 through 51 (R.D. pages 17-18), find that PAWC and PGE have mains attached to the Mary Street Bridge and, if there were no bridge at the crossing, the utilities would have to relocate their facilities or build their own structure across the railroad or suffer the interruption of service to their customers in the area. Further, the evidence demonstrated that neither utility has paid for the use of the bridge to which to attach their mains. At Section IV. 8.F. (R.D. pages 58-61), the Recommended Decision quite appropriately determines that the utilities receive a benefit from the placement of their facilities on the bridge: they occupy the public right-of-way free of charge, do not incur property taxes, save the cost of purchasing a private right-of-way, and gain access to existing public facilities. Further, the Recommended Decision properly cites City of Reading. 62 Pa. PUC 1,10(1986) and PennDOT. 65 Pa. PUC 340 (1987) for the proposition that the utilities benefit by the existence of the bridge by saving the expense of building a utility bridge to support their lines or tunneling their lines under the railroad tracks. (R.D. pages 58-61). Despite this analysis, however, the Recommended Decision inexplicably recommends that the utilities should not bear any cost to construct the new bridge, but should be required only to bear their respective costs to relocate their facilities to accommodate the

15 project and, if they wish to attach their facilities to the new bridge, to bear the cost to design and construct supports for their facilities on the new bridge. Since the utilities presumably would have to bear these costs in any event, they should, in addition, be allocated some share of the cost and expense to remove the existing bridge and construct the new bridge, since this work will continue to save the utilities the cost of property taxes, the purchase of a private right-of-way and the expenses associated with building a utility bridge across the railroad tracks or tunneling their lines beneath the railroad tracks. In the alternative, the Commission should prohibit the utilities from attaching their facilities to the new bridge unless and until they have negotiated a right-of-way agreement with the party or parties ultimately found responsible for the construction and future maintenance of the new bridge. The following portions of the Initial Brief of FAIRVIEW TOWNSHIP, and the portions of the Record cited therein, are incorporated by reference and citation: Section III, Summary of Testimony, pages 11-12; Section IV, Proposed Findings of Fact, Paragraphs 34,35 and 52; Section V, Summary of Argument, pages 29-30; Section VI, Argument, pages 39-40; Section VII, Proposed Conclusions of Law, Paragraph 11; and Section VIII, Proposed Ordering Paragraphs 2 and 3. The following portions of the Reply Brief of FAIRVIEW TOWNSHIP, and the portions of the Record cited therein, are incorporated by reference and citation: Section II, Argument, subpart 4, at pages Allocation to Pennsylvania Department of Transportation 1 (c). FAIRVIEW TOWNSHIP takes exception to the Recommended Decision s suggestion that PennDOT not be assessed any responsibility for the cost and expense necessary to replace the

16 current Mary Street Bridge, as set out in Recommended Decision at Section IV.8.B, page 51. In this regard, the following portions of the Initial Brief of FAIRVIEW TOWNSHIP, and the portions of the Record cited therein, are incorporated by reference and citation: Section III, Summary of Testimony, pages 5 and 8-11; Section IV, Proposed Findings of Fact, Paragraphs 10,11,12,16,18, 21,22,23,25,26,30,32 and 57; Section V, Summary of Argument, page 29; Section VI, Argument, pages 36 and 39; Section VII, Proposed Conclusions of Law, Paragraph 10; and Section VII, Proposed Ordering Paragraph 2. The following portions of the Reply Brief of FAIRVIEW TOWNSHIP, and the portions of the Record cited therein, are incorporated by reference and citation: Section II, Argument, pages 8 through 11. Exception in the Alternative to Allocation 1 (d). In the alternative, FAIRVIEW TOWNSHIP takes exception to the suggestion of the Recommended Decision that the TOWNSHIP perform all of the work directed by the Proposed Order at the TOWNSHIP S initial cost and expense, to be reimbursed by the other responsible parties only after the completion of the work and certification by the Commission, as set out in the Recommended Decision, Section V, Proposed Order, Paragraphs 6 through 9 and 21 through 23 (R.D. pages and 73-74), since the TOWNSHIP is financially unable to replace the bridge and no funds are currently available to it. In this regard, the following portions of the Initial Brief of FAIRVIEW TOWNSHIP, and the portions of the Record cited therein, are cited and incorporated by reference: Section III, Summary of Testimony, pages 6, 8, 11 and 12; Section IV, Proposed Findings of Fact, Paragraphs 33, 56, 60, 61, 63, 64, 65 and 67; Section VIII, Proposed Ordering

17 Paragraphs 1 and 2. The following portions of the Reply Brief of FAIRVIEW TOWNSHIP, and the portions of the Record cited therein, are cited and incorporated by reference: Section II, Argument. FAIRVIEW TOWNSHIP contends that, if it is to be responsible for performing the work recommended by the Recommended Decision, then the other responsible parties should be required to contribute proportionately to the cost and expense of that work, on a going forward basis, including not only work related to the design and construction of the new bridge, but also to the demolition and removal of the existing bridge, or, at the very least, should be required to reimburse FAIRVIEW TOWNSHIP for their proportionate share of all related costs and expenses, including but not limited to principal and interest incurred in financing such work. FUTURE MAINTENANCE OF BRIDGE 2. FAIRVIEW TOWNSHIP takes exception to the proposed assignment to the TOWNSHIP, at its sole cost and expense, to furnish all materials and do all work necessary to maintain the substructure and superstructure of the Mary Street Bridge, contained in the Recommended Decision s Proposed Order at Paragraph 24 (R.D. page 74) and at Section IV.9, pages and at Proposed Conclusion of Law 11, pages No authority is provided by the Recommended Decision to support its statement at Proposed Conclusion of Law 11 that Bridge Bill funding would require the TOWNSHIP to assume future maintenance of the bridge and, in any event, the Recommended Decision s Proposed Finding of Fact 30 (R.D. page 13) recognizes there is no guarantee that Bridge Bill funding will ever become available to the TOWNSHIP

18 Instead, FAIRVIE W TOWNSHIP submits that, consistent with previous Commission Orders, RBM&N, as the owner of the Bridge, should be required to incur the costs of maintaining the substructure and superstructure. In this regard, the following portions of the Initial Brief of FAIRVIEW TOWNSHIP, and the portions of the Record cited therein, are incorporated by reference and citation: Section III, Summary of Testimony, pages 2 through 4,6, and 12; Section IV, Proposed Findings of Fact, Paragraphs 1 through 5, 36 through 39, 44, and 66 through 69; Section VI, Argument, pages 33-36; Section VII, Proposed Conclusions of Law, Paragraphs 6, 8,9 and 11; and Section VIII, Proposed Ordering Paragraph 7. The following portions of the Reply Brief of FAIRVIEW TOWNSHIP, and the portions of the record cited therein, are incorporated by reference and citation: Section II, Argument, pages 1 through 4. In the alternative, if FAIRVIEW TOWNSHIP is to have any future responsibility for maintaining the substructure and superstructure of the new bridge, it contends that the other responsible parties should be required to contribute a proportionate share of the costs and expenses relating to such future maintenance. TIME PERIOD IN WHICH PROJECT MUST BE COMPLETED 3. Subject to, and without waiving the exceptions discussed above, FAIRVIEW TOWNSHIP takes exception to the Recommended Decision to the extent it provides an inadequate period of time within which to commence and complete the recommended work. The Recommended Decision s Proposed Order, at Paragraphs 6, 7 and 8 (R.D. pages 70-71), appears to require the completion of all of the work within only two years after the date of service of the Commission s

19 Order. However, the TOWNSHIP submits that this is an inadequate period of time within which to commence and complete the necessary work and, instead, submits that a period of three to five years from the date of service of the Commission s Order should be allowed within which to complete the work required by the Recommended Decision, which would include preliminary engineering work, final design, bidding, the removal of the existing bridge, and the construction of the new bridge. In this regard, the time limits set out in the Proposed Order are shorter even than the periods recognized by the Recommended Decision at other sections as necessary for the work and, further, are shorter than the periods established by the Record as necessary for the conduct of the work. For example, at Page 43, the Recommended Decision notes: I realize it will take twelve to eighteen months to design the bridge and relocate the utilities. Then another nine to twelve months to construct the new bridge and highway approaches. Staff engineer, Mr. Ron Hull, estimated it would take two years to prepare plans and obtain review and approval to replace the crossing structure. (N.T. 262)... Accordingly, by the Recommended Decision s own calculation, it might take as long as two and one-half years to design and construct the new bridge and highway approaches. Mr. Hull, however, estimated that it will take two years merely to prepare plans and obtain review and approval. His two-year estimate does not include the time necessary to actually remove the existing bridge and construct the new bridge. (N.T. 262). Likewise, FAIRVIEW TOWNSHIP S engineering consultant, Michael Hannagan of Borton-Lawson Engineering, testified that it would require three to five years to replace the bridge. (N.T. 150). Therefore, the two years provided by the Recommended Decision within which to design and construct the new Mary Street Bridge is inadequate. Instead, the Commission should order that the

20 party or parties responsible for replacing the Bridge make good faith efforts to complete the replacement of the Bridge within a three- to five-year period. INSTALLATION OF METAL GUIDE RAILS 4. FAIRVIEW TOWNSHIP takes exception to Section IV. 4 of the Recommended Decision, at page 36, to the extent it suggests the TOWNSHIP has not complied with the Commission s Order to effectively close the Bridge to all traffic. On the contrary, the TOWNSHIP has done so. In any event, with regard to Paragraphs 3 through 5 of the Proposed Order, FAIRVIEW TOWNSHIP has already installed metal guide rails across both ends of the bridge, thereby effectively closing the bridge to vehicular traffic, in accordance with Paragraph 3 of the Proposed Order. Accordingly, this obviates Paragraphs 3 and 4 of the Proposed Order, thereby imposing upon RBM&N the responsibilities set out at Paragraph 5 of the Proposed Order. CONCLUSION For all of the reasons stated above, FAIRVIEW TOWNSHIP takes exception to the Recommended Decision issued December 30, 1998 and, instead, respectfully requests that the Commission adopt the Proposed Ordering Paragraphs submitted by FAIRVIEW TOWNSHIP at Section VIII of its Initial Brief, or in the alternative, that (1) a greater share of the cost and expense to perform the necessary work be allocated to RBM&N, PAWC, PGE and PennDOT; (2) if FAIRVIEW TOWNSHIP is required to perform all of the work directed by the Proposed Order, then

21 the other responsible parties should be required to contribute proportionately to the cost and expense of that work, on a going forward basis, including not only work related to the design and construction of the new bridge, but also to the demolition and removal of the existing bridge; (3) if PAWC and PGE are not required to contribute to the cost and expense of removing the existing bridge and constructing the new bridge, they should be prohibited from attaching their facilities to the new bridge unless and until they have negotiated a right-of-way agreement with the party or parties responsible for the construction and future maintenance of the new bridge; (4) if FAIRVIEW TOWNSHIP is to have any future responsibility for maintaining the substructure and superstructure of the new bridge, the other responsible parties should be required to contribute a proportionate share of the costs and expenses relating to such future maintenance; and (5) if FAIRVIEW TOWNSHIP is to be responsible for performing the work necessary to demolish and remove the existing bridge and construct the new bridge, it should make good faith efforts to complete the replacement of the bridge within a three- to five-year period, rather than the two-year period suggested by the Recommended Decision. ROSENN, JENKINS & GREENWALD, L.L.P. ROBERT N. GAWLAS,fR., ESQUIRE Attorney I.D. # South Franklin Street Wilkes-Barre, PA (717) Attorneys for FAIRVIEW TOWNSHIP

22 COMMONWEALTH OF PENNSYLVANIA BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION Investigation Upon the Commission s Own Motion to determine the condition, disposition, j and responsibility for maintenance of the Docket Number existing crossing structure carrying Mary Street j (T439)above-the-gradeofthe track of the Reading, Blue Mountain and Northern Railroad Company in Fairview Township, Luzerne County (AAR S). CERTIFICATE OF SERVICE The undersigned certifies that on January 19,1999, he filed the original and nine (9) copies of the Exceptions of Fairview Township, by First Class U.S. Mail addressed to: Commonwealth of Pennsylvania Pennsylvania Public Utility Commission Prothonotary s Office P.O. Box 3265 Harrisburg, PA The undersigned certifies that on January 19,1999, he served one (1) copy of the Exceptions of Fairview Township upon each the following by First Class U.S. Mail: The Honorable Richard M. Lovenwirth Administrative Law Judge Room 317, State Office Building 100 Lackawanna Avenue Scranton, PA David Salapa, Esquire Pennsylvania Public Utility Commission Bureau of Transportation and Safety P.O. Box 3265 Harrisburg, PA AND

23 Susan Simms, Esquire Pennsylvania-American Water Company 800 West Hershey Park Drive P.O. Box 888 Hershey, PA Jason D. Sharp, Esquire Commonwealth of Pennsylvania Department of Transportation Forum Place - Ninth Floor 555 Walnut Street Harrisburg, PA Jeffery H. Sunday, Esquire PG Energy, Inc. One PEI Center Wilkes-Barre, PA Eric M. Hocky, Esquire 213 West Miner Street P.O. Box 796 West Chester, PA Benjamin C. Dunlap, Jr., Esquire Nauman, Smith, Shissler & Hall 18th Floor, 200 North Third Street P.O. Box 840 Harrisburg, PA H. James Brozena County of Luzerne Luzerne County Courthouse 200 North River Street Wilkes-Barre, PA ROSENN, JENKINS & GREENWALD, L.L.P. BY: ROBERT N. GAWLASr R., ESQUIRE Attorney LD. No South Franklin Street Wilkes-Barre, PA (717) Attorneys for FAIRVIEW TOWNSHIP

24 * 4 PHILADELPHIA OFFICE: SIXTEENTH FLOOR TWO PENN CENTER PLAZA PHILADELPHIA, PA (215) Gollatz, Griffin & Ewing, p.c. ATTORNEYS AT LAW 213 WEST MINER STREET POST OFFICE BOX 796 WEST CHESTER, PA Telephone (610) Telecopier (610) GGE@GGE.ATTMAIL.COM DELAWARE COUNTY OFFICE: 205 NORTH MONROE STREET POST OFFICE BOX 1430 MEDIA, PA (610) ERIC M. HOCKY January 19, 1999 RECEIVED JAN 19 1SS3 FedEx James J. McNulty, Secretary Pennsylvania Public Utility Commission North Office Building, Room B-20 North Street and Commonwealth Avenue P.O. Box 3265 Harrisburg, PA 'A PUBLIC UTILITY COMMISSiC SECRETARY'S BUREAU Re: Investigation upon the Commission's own motion to determine the condition, disposition, and responsibility for maintenance of the existing crossing structure carrying Mary Street (T-439) above the grade of the track of the Reading, Blue Mountain and Northern Railroad Company in Fairview Township, Luzerne County (AAR S). Docket No Exceptions of Reading Blue Mountain & Northern Railroad Company Dear Secretary McNulty: Enclosed for filing in the above-captioned proceeding are an original and nine (9) copies of the Exceptions of Reading Blue Mountain & Northern Railroad Company. In accordance with 52 Pa. Code 1.11(a)(2), attached to this letter is the FedEx "receipt." Copies of the Exceptions have been served on the parties of record as stated on the Certificate of Service attached to the Exceptions. EMH/bah H:\WPDATA\TRANS\RBMN\MARY\PUC05.WPD

25 James J. McNulty, Secretary January 19, 1999 Page 2 Kindly time stamp the extra copy of this letter to indicate receipt and return it to me in the stamped self-addressed envelope provided for your convenience. Respectfully, Enclosures cc: {w/encl.) The Honorable Richard M. Lovenwirth, ALJ Parties of Record EMH/bah H:\WPDATA\TRANS\RBMN\MARY\PUC05.WPD

26 Before the RECEIVED JAN IS PENNSYLVANIA PUBLIC UTILITY COMMISSION A PUBLIC UTILITY COMMISSIO SECRETARY'S BUREAU Investigation upon the Commission s own motion to determine the condition, disposition, and responsibility for maintenance of the existing crossing structure carrying Mary Street (T439) above the grade of the track of the Reading, Blue Mountain and Northern Railroad Company in Fairview Township, Luzerne County (AAR S) ) ) ) ) Docket No ) ) ) ) ) EXCEPTIONS OF READING BLUE MOUNTAIN & NORTHERN RAILROAD COMPANY docketed jan 21 ra" Dated: January 19,1999 Eric M. Hocky GOLLATZ, GRIFFIN & EWING, P.C. 213 West Miner Street P.O. Box 796 West Chester, PA (610) Attorneys for Reading Blue Mountain & Northern Railroad Company H:\WPDATA\TRANS\RBMN\MARY\EXCEPTNS.DOC

27 EXCEPTIONS OF READING BLUE MOUNTAIN & NORTHERN RAILROAD COMPANY Pursuant to 52 Pa. Code 5.533, Reading Blue Mountain & Northern Railroad Company ("RfiMN") hereby files the following exceptions to the Recommended Decision of Administrative Law Judge Richard M. Lovenwirth dated December 7, 1998 (issued by the Commission on December 30, 1998): 1. Exception to Proposed Finding of Fact No. 11 This Finding of Fact is accurate so far as it goes. However, it is incomplete. As the testimony presented at the April 14, 1998, hearing made clear, because of the rock gap noted in the Proposed Finding of Fact, no at-grade crossing is possible at this location. See Initial Brief of RBMN at 5 and Appendix A at 2, 8. Accordingly, RBMN believes the Proposed Finding of Fact should be amended to add the following: teno at-grade crossing is possible at this location. Tr. 165; Blue Mountain Statement No Exception to Proposed Conclusion of Law No. 18, Proposed Order No. 21 In determining that RBMN be allocated 40% of the cost of removal and reconstruction of the Bridge, ALJ Lovenwirth relied to a great extent on the benefit RBMN receives from the crossing. See Proposed Conclusion of Law No. 18. However, the only benefit to RBMN described in the Recommended Decision, is the benefit RBMN is perceived to receive from H:\WPDATA\TRANS\RBMN\MARY\EXCEPTNS.DOC

28 a separated crossing. See Recommended Decision at While a change from an at-grade crossing to separated crossing may benefit a railroad as well as the traveling public, that is not the situation here where the overhead bridge is merely being replaced. See Initial Brief of RBMN at 11. Additionally, because of the topography, no at-grade crossing is physically possible. See Exception No. 1 above. Thus, the purpose of replacing the Mary Street Bridge is not to reduce liability risks to the railroad, but is necessary merely to span the rock gap to provide the desired access between two sections of the Township. Thus, Proposed Conclusion of Law No. 18 should be revised to provide that the bridge replacement will not benefit RBMN, and the allocation to RBMN set forth in Proposed Order No. 21 should be eliminated or substantially reduced. 3. Exception to Proposed Order No. 21 The ordering paragraphs, and specifically the order allocating a portion of the cost to RBMN, should acknowledge that if state or federal funds become available, then the requirements of such funding will supersede the cost allocations set forth in the order. ALJ Lovenwirth acknowledges that the requirements of such funding are inconsistent with the allocations he is recommending. Recommended Decision at 47. If federal funds are used, applicable federal law prohibits any part of the cost being allocated to a railroad. Recommended Decision at 47-48; Initial Brief of RBMN at 11 n.5. Similarly, if state bridge bill funds are used, the statutes provide that the local municipality be responsible for 20% of the project cost, with the remaining 80% coming out of the State Motor License Fund. Recommended Decision at 48 (citing Borough of South H:\WPDATA\TRANS\RBMN\MARY\EXCEPTNS.OOC 2

29 Greensburg v. PUC, 117 Comwlth Ct 361, 367 (1988)). Accordingly, if such funds become available, they should supersede the allocations set forth in the proposed order, and no portion of the cost of removal or reconstruction should be allocable to RBMN. Conclusion For the foregoing reasons, RBMN requests that the Recommended Decision and Proposed Order be modified as set forth above. Respectfully submitted, Dated: January 19, 1999 & EWING, P.C. 213 West Miner Street P.O. Box 796 West Chester, PA (610) Attorneys for Reading Blue Mountain & Northern Railroad Company H:\WPDATA\TRANS\RBMN\MARY\EXCEPTNS.DOC 3

30 CERTIFICATE OF SERVICE I hereby certify that I have this day served a true copy of the foregoing document by first class mail, postage prepaid, upon the participants listed below, in accordance with the requirements of 1.54 (relating to service by a participant): David Salapa, Esq. Pennsylvania Public Utility Commission Bureau of Transportation and Safety North Office Building Commonwealth Avenue and North Harrisburg, PA Jeffery H. Sunday, Esq. PG Energy Inc. One PEI Center Wilkes-Barre, PA H. James Brozena County of Luzerne Luzerne County Courthouse 200 North River Street Wilkes-Barre, PA Jason D. Sharp, Esq. Assistant Counsel Department of Transportation Forum Place - 9th Floor 555 Walnut Street Harrisburg, PA Susan D. Simms, Esq. Associate Corporate Counsel Pennsylvania-American Water Co. 800 West Hershey Park Drive Hershey, PA H:\WPDATA\TRANS\RBMN\MARY\EXCEPTNS.DOC

31 Robert N. Gawlas, Jr., Esq. Rosenn, Jenkins & Greenwald 15 South Franklin Street Wilkes-Barre, PA Benjamin C. Dunlap, Jr., Esq. Nauman, Smith, Shissler & Hall 200 North Third Street, 18th FI. Harrisburg, PA and one true copy of the foregoing document by first class mail, postage prepaid, upon: Dated this 19th day of January, Administrative Law Judge Richard M. Lovenwirth Room 317 State Office Building 100 Lackawanna Avenue Scranton, PA ERIC M. HOCK" GOLLATZ, GRIFFIN & EWING, P.C. 213 West Miner Street P.O. Box 796 WestChester, PA (610) Attorneys for Reading Blue Mountain & Northern Railroad Company H:\WPDATA\TRANS\RDMN\MARY\EXCEPTNS.DOC

32 Pennsylvania-American Water Company 800 West Hershey Park Drive P.O. Box 888 Hershey, PA (717) FAX (717) Susan D. Simms Associate Corporate Counsel VIA UPS OVERNIGHT DELIVERY James J. McNulty, Secretary Pennsylvania Public Utility Commission North Office Building, Room B-20 North St. & Commonwealth Ave., P. O. Box 3265 Harrisburg, Pennsylvania January 28, 1999 V JAN PA PUBLIC UTILITY COMMISSION- P-'^.ETARY S Dear Secretary McNulty: Re: Investigation upon the Commission s own Motion to determine the condition, disposition, and responsibility for maintenance of the existing crossing structure carrying Mary Street (T-439) above-the-grade of the track of the Reading, Blue Mountain and Northern Railroad Company in Fairview Township, Luzerne County faar SI at Docket No Enclosed for filing in the above-captioned proceeding are an original and nine (9) copies of the Reply Exceptions of Pennsylvania-American Water Company. A copy of the Reply Exceptions is being served on the Honorable Richard M. Lovenwirth, Administrative Law Judge, and one (1) copy is being served on each party of record, as evidenced by the enclosed Certificate of Service. In accordance with 52 Pa. Code 1.11 (a)(2), attached to this letter is the UPS Overnight Delivery receipt. Please time stamp the extra copy of this letter and return it to me in the stamped self-addressed envelope enclosed for your convenience. Respectfully, Enclosure c: The Honorable Richard M. Lovenwirth Parties of Record Associate Corporate Counsel Dedicated to Quality Water and Superior Service An E.E.O. Employer M/F//H/V

33 BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION INVESTIGATION UPON THE COMMISSION S OWN MOTION TO DETERMINE THE CONDITION, DISPOSITION AND RESPONSIBILITY FOR MAINTENANCE OF THE EXISTING CROSSING STRUCTURE DOCKET NO CARRYING MARY STREET (T-439) ABOVE- THE-GRADE OF THE TRACK OF THE READING, BLUE MOUNTAIN AND NORTHERN RAILROAD COMPANY IN FAIRVIEW TOWNSHIP, LUZERNE COUNTY (AAR S). REPLY EXCEPTIONS OF THE PENNSYLVANIA-AMERICAN WATER COMPANY Susan D. Simms Associate Corporate Counsel DOCKETED FEB Pennsylvania-Amcrican Water Cot Company 800 West Hershey Park Drive P. O. Box 888 Hershey, Pennsylvania (717) DATED: January 28, 1999 ItCEiVt JAN S P. PUBLIC UTILITY COMMISJ? SECRETARY'S

34 L INTRODUCTION On December 30, 1998, the Recommended Decision of Administrative Law Judge Richard M. Lovenwirth (ALJ) was issued in this proceeding. On January 19, 1999, the Fairview Township ( Township ) and Reading, Blue Mountain & Northern Railroad Company ( RBMN ) filed Exceptions.1 In these Reply Exceptions, Pennsylvania-American Water Company ( PAWC ) responds to the Exceptions filed by the Township. II. REPLY EXCEPTIONS A. THE COMMISSION SHOULD NOT ALLOCATE A GREATER PORTION OFTHE COST AND EXPENSES ASSOCIATED WITH THE REMOVAL OF THE EXISTING MARY STREET BRIDGE AND THE CONSTRUCTION OF A NEW BRIDGE TO PAWC The ALJ, in his Recommended Decision, determined that the fixed utilities in this proceeding, PAWC and PG Energy, Inc. ( PGE ), should not bear any of the cost to construct a new bridge; however, the utilities should be responsible for bearing all of the cost associated with relocating their facilities in order to accommodate the construction project. (R. D., p. 61). Furthermore, the utilities should bear all costs associated with the design and construction of supporting facilities to accommodate the attachment of water and gas facilities to the new bridge. The Township, however, excepts to the Recommended Decision because the ALJ, among other things, did not allocate to PAWC and PGE, a greater portion of the cost and expenses associated with the removal of the existing Mary Street Bridge and the construction of a new bridge. (Township Exc., p. 2). PAWC submits that the ALJ, after reviewing the record, appropriately concluded that the Township is the party responsible for the construction of a new bridge and highway approaches and bears 50 percent * 'By letter dated January 11, 1999, Pennsylvania-American Water Company informed the Pennsylvania Public Utility Commission that it would not be filing Exceptions. -2-

35 of the project cost. (R. D., pp. 44, 54). The ALJ s conclusion was based upon unrebutted facts and sound legal analysis. The testimony and evidence presented at the hearing as well as the Main Briefs and Reply Briefs that were subsequently filed make several facts clear in this proceeding. First, Mary Street is a Township road and not a state or county road. (Tr.,p. 5; RBMN St. No. 1). Second, the bridge was originally designed and constructed to accommodate railroad traffic. (Tr., p. 37; RBMN St. No. 1 and attached Exhibits). Furthermore, since its construction in the late 1800's, the Mary Street bridge has been used for vehicular traffic until it was closed to vehicular traffic only in (Tr., pp. 37, ). Lastly, prior to the closing of the bridge to vehicular traffic, Mary Street, and the crossing that is the subject of this proceeding, provided access to the Solomon Gap section of the Township for the Township residents, emergency agencies, school buses and businesses. (Tr., pp. 97, , 183,205, 207). The Township s own witnesses clearly demonstrated that the Township and its residents would reap considerable and significant benefit from the construction of a new bridge. The Chairman of Fairview Township Board of Supervisor testified that due to the closing of the Bridge there is only one access to the Solomon Gap section. (Tr, pp , 101). This access requires the crossing of property which is owned by the Mountaintop Hose Company No. 1, and the Company, from time to time, barricades the property that is used for access to the Solomon Gap section. (Tr., pp , 128; Fairview Ex. No. 2). The Township readily admitted in its Main Brief that the current access to the Solomon Gap section is problematic because the steep grade of Lehigh Street results in vehicles that make left turns from Route 437 onto Lehigh Street bottoming out. (M. B., p. 5). Additionally, the Chairman testified that due to the fact that there is only one access to the Solomon Gap section, there is an increase in traffic congestion. (Tr., pp ). -3-

36 Several other Township witnesses testified as to the inadequacies of the only existing access to the Solomon Gap section and the need to have an alternative or additional access to this section of the Township. The Township s Chief of Police testified as to several public safety concerns, including increased accidents, traffic congestion and slippery road conditions during the winter months. (Tr.,pp ). Township witness Peter Kohl, the Fire Chieffor the Mountaintop Hose Company No. 1, presented testimony as to the fire truck s access problems. (Tr.,pp ). The Mountaintop Area Community Ambulance witness also testified as to the access problems experienced by ambulances since the closing of the Bridge. (Tr., pp ). The Director of the T ransportation for the Crest wood School District, which includes the T ownship, presented testimony regarding the public safety concerns for the children of the Solomon Gap section and the seven (7) school buses that provide service to this section of the Township. (Tr., pp. 202, , 209). It is clear, however, that the Township received substantial benefit during the time period that the Bridge was opened. The bridge served as an essential part ofthe transportation infrastructure for the Township s Solomon Gap section. The businesses, schools, public safety entities, religious institutions and the residences were dependent upon this alternative and additional access to Solomon Gap section ofthe Township for the public safety, emergency and day to day needs. The construction of a new bridge which would permit vehicular and pedestrian traffic would provide an alternative and additional access route to the Solomon Gap section. The Township would have the Commission believe that it is PAWC who has derived a greater benefit from the existing bridge without paying for the use of the bridge. The facts of this case, however, demonstrate that the Township received a substantial benefit from the existing bridge but did not bear any of the cost of the construction or maintaining the bridge. The purpose and use of the bridge have dramatically changed since it was constructed in the late 1800's and even since the -4-

37 water facilities were installed in The construction of a new bridge that would replace the more than 100 year old bridge will by its very nature benefit the Township. The evidence throughout this proceeding more than adequately demonstrates that the Township has been at a disadvantage since the closing of the bridge. Thus, it is only appropriate that the Township should bear at least 50 percent of the cost to construct a new bridge. Therefore, PAWC request the Commission deny the Township s Exceptions and adopt the ALJ s Recommended Decision. B. THE COMMISSION SHOULD NOT PROHIBIT PAWC FROM ATTACHING ITS FACILITIES TO THE NEW BRIDGE The ALJ directed PAWC bear the cost of the design and construction of the necessary supports for the water facilities to be attached to the new bridge. (R. D., p. 61). Additionally, PAWC would be responsible for maintaining its facilities at the crossing. (R. D., p. 63). In its Exceptions, the Township wants the Commission to prohibit PAWC from attaching its facilities to any new bridge unless it negotiates a right of way agreement with the parties responsible for the construction and future maintenance of the new bridge. There is no dispute that PAWC maintains a 6-inch steel and cast-iron water main attached to the bridge that is in a public right of way. PAWC is willing to maintain its facilities on the closed Bridge. In the alternative, PAWC is willing to bear the cost of the relocation of its facilities in order to accommodate a construction project that would result in the replacement of the bridge and the cost to design and construct supports for water facilities on a new bridge. It would seem that the Township s alternative is an illustration of the Township s sour grapes. Perhaps the Commission should consider directing the Township to pay for its residents, schools, emergency agencies and businesses prior use of the bridge which may provide sufficient monies for the construction of a new bridge. PAWC respectfully requests the Commission deny the Township s Exceptions. -5-

38 «III. CONCLUSION The Commission must, in determining the allocation of the cost for the repair or replacement of the Bridge, consider several factors including the relevant benefit parties will receive from the repair or replacement of the Bridge. Greene Township v. Pa. P.U.C A.2d 615 (Pa. Commw. Ct. 1995). The Township advocated the replacement ofthe bridge in order to provide an alternative and additional access route to the Solomon Gap section of the Township. The Township, however, advocated this position at the expense of the other parties including PAWC. The ALJ concluded that the existing bridge should be replaced, and he appropriately concluded that the Township should bear 50 percent of the cost of the construction of the new bridge Accordingly, the Township s Exceptions should be denied. Respectfully submitted. Dated: January 28, 1999 Susan D. Simms Pennsylvania-American Water Company 800 West Hershey Park Drive P. O. Box 888 Hershey, Pennsylvania (717)

39 BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION Investigation upon the Commission s own motion to determine the condition, disposition, and responsibility for maintenance of the existing crossing structure carrying : Docket No Mary Street (T-439) above the grade of the track of the Reading, Blue Mountain and Northern Railroad Company in Fairview Township, Luzerne County (AAR S) CERTIFICATE OF SERVICE I hereby certify that I have this day served a true copy of the foregoing document upon the participants, listed below, in accordance with the requirements of 1.54: VIA FIRST CLASS MAIL H. James Brozcna County of Luzerne Luzerne County Courthouse 200 North River Street Wilkes-Barre, PA Eric M. Hocky, Esq. Gollatz, Griffin & Ewing, P C. 213 W. Miner Stceet P. O. Box 796 West Chester, PA David Salapa. Esquire Pennsylvania Public Utility Commission Transportation & Safety Rail Division North Office Building, P. O. Box 3265 North St., & Commonwealth Ave. Harrisburg, PA Jeffrey H. Sunday, Esq. PG Energy Inc. Wilkes Barre Ctr., 39 Public Square Wilkes-Barre, PA Benjamin C-Dunlap, Jr., Esq. Naumon, Smith, Shisslcr & Hall 200 North Third Street, 18lh Floor P.O. Box 840 Harrisburg, PA Jason D. Sharp, Assistant Counsel Department of Transportation Forum Place, 9th Floor 555 Walnut Street Harrisburg, PA Robert N. Gawlas, Jr., Esquire Roscnn, Jenkins, & Grccnwald 15 South Franklin Street Wilkes-Barre, PA 18711

40 Certificate of Service Page 2 VIA UPS OVERNIGHT DELIVERY Honorable Richard M. Lovenwirth, Administrative Law Judge Pennsylvania Public Utility Commission Scranton State Office Building, Room Lackawanna Avenue Scranton, PA Dated this 28th day of January, 1999 Susan D. Simms, Esq. Pennsylvania-American Water Company 800 West Hershey Park Drive, P.O. Box 888 Hershey, Pennsylvania (717)

41 LAW OFFICES t Rosenn Jenkins & Greenwald^Tl.p 15 Soutk Franklin Street Wilkes-Barre, Pennsylvania EUGENE ROTH DANIEL G. FLANNERY MARSHALL S. JACOBSON MURRAY UFBERG BRUCE C. ROSENTHAL DONALD H. BROBST ANTHONY J. DIXON JOSEPH L. PEPSICO HOWARD M. LEVINSON ALAN S. HOLLANDER GARRY S. TAROLI RICHARD A. RUSSO JAMES P. VALENTINE MARK A. VAN LOON LEE S. PIATT ROBERT D. SCHAUB ROBERT N. GAWLAS, JR. STEVEN P. ROTH JAMES C. OSCHAL *t JOSEPH G. FERGUSON GEORGE F. SHOVLIN tt MARY GRIFFIN CUMMINGS MARY JO KISHEL PATRICIA ERMEL LAKHIA» MARK W. DRASNIN LAWRENCE W. ROTH ELIZABETH C. LEO * NICHOLAS C. STROUMBAKIS MICHAEL K. DURICKO ERNEST A. SPOSTO. JR. THOMAS J. MacNEELY MICHAEL BRIECHLE Of Counsel: HAROLD ROSENN JOSEPH J. SAVTT2 Telephone Telecopier 570-a26-5e-40 Direct Dial l Direct Fax I -72 I 5 Also admitted to practice in: New York H Washington, D.C. J New Jerset tt Florida Internet RJG@NEPALAW.COM Hazleton Office l 20 East Broad Street West Hazleton, PA I 820 I Telephone I l 2 Telecopier January 28, 1999 Pennsylvania Public Utility Commission Prothonotary s Office P.O. Box 3265 Harrisburg, PA Re: In Re: Investigation - Fairview Township Docket No HECEIVEU JAN PA PUBLIC UTILITY COMMISSlOf SECRETARY S BURF f'1 To Whom it May Concern: Enclosed for filing in the above matter are the original and nine (9) copies of Fairview Township s Reply to Exceptions of Reading, Blue Mountain & Northern Railroad Company, with an attached Certificate of Service, as well as a United States Postal Service Form 3817 Certificate of Mailing, attached to the cover of the original Reply to Exceptions. Also enclosed is an extra copy of Fairview Township s Reply to Exceptions of Reading, Blue Mountain & Northern Railroad Company, which we would appreciate your time-stamping and returning to us in the stamped, self-addressed envelope enclosed for your convenience. As indicated on the Certificate of Service, one (1) copy of Fairview Township s Reply to Exceptions of Reading, Blue Mountain & Northern Railroad Company is being served on each party of record, as well as the Honorable Richard M. Lovenwirth, Administrative Law Judge.

42 Rosenn, Jenkins & Greenwald, l.l.p. Pennsylvania Public Utility Commission January 28, 1999 Page 2 Thank you for your attention to this matter. If you should have any questions, of course, please don t hesitate to call at your convenience. Sincerely, RNG/Iao Enclosures ROBERT N. GAWLAS, JR. cc: Honorable Richard M. Lovenwirth, Administrative Law Judge (w/enclosures) David Salapa, Esquire (w/enclosures) Susan Simms, Esquire (w/enclosures) Jason D. Sharp, Esquire (w/enclosures) Eric M. Hocky, Esquire (w/enclosures) Benjamin C. Dunlap, Jr., Esquire (w/enclosures) Jeffrey H. Sunday, Esquire (w/enclosures) H. James Brozena (w/enclosures)

43 COMMONWEALTH OF PENNSYLVANIA BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION Investigation Upon the Commission s Own Motion to determine the condition, disposition, and responsibility for maintenance of the existing crossing structure carrying Mary Street (T439) above-the-grade of the track of the Reading, Blue Mountain and Northern Railroad Company in Fairview Township, Luzerne County (AAR S). Docket Number HECEiVED JAN PA PUBLIC UTILITY COMMISSK* SECRETARY S BUPEA'1 FAIRVIEW TOWNSHIP S REPLY TO EXCEPTIONS OF READING. BLUE MOUNTAIN & NORTHERN RAILROAD COMPANY DOCKETED FEB ROSENN, JENKINS & GREENWALD, L.L.P. Dated: January ZL 1999 BY:_ IZum. 6L6* ROBERT N. GAWLAS, M., ESQUIRE Attorney LD. No South Franklin Street Wilkes-Barre, PA (717) Attorneys for FAIRVIEW TOWNSHIP

44 FAIRVIEW TOWNSHIP S REPLY TO EXCEPTIONS OF READING. BLUE MOUNTAIN & NORTHERN RAILROAD COMPANY FAIRVIEW TOWNSHIP, through its attorneys, Rosenn, Jenkins & Greenwald, L.L.P., files the following Reply to the Exceptions of READING, BLUE MOUNTAIN & NORTHERN RAILROAD COMPANY ( RBM&N ) to the Recommended Decision of the Honorable Richard M. Lovenwirth, Administrative Law Judge, which was issued on December 30, Reply to Exception to Proposed Finding of Fact No. 11 RBM&N contends that Finding of Fact No. 11 is incomplete and, because of the existence of a rock gap, should be amended to provide that [N]o at-grade crossing is possible at this location. This Exception is without merit. The rock gap referenced is actually an excavation through the rock to accommodate the railroad tracks. (N.T. 164). Further, as the testimony presented at the hearing made abundantly clear, there had been, in the past, and continues to be an at-grade crossing at the lower end of Lehigh Street, which is paved on both sides ofthe railroad tracks. (N.T ). However, the Lehigh Street at-grade crossing was closed years ago. (N.T. 111). See also Initial Brief of Fairview Township, Proposed Findings of Fact 12 and 17, which are incorporated by reference and citation. Therefore, it would be inappropriate to amend Proposed Finding of Fact No. 11 to provide that no at-grade crossing would be possible in this area. 2. Reply to Exception to Proposed Conclusion of Law No. 18. Proposed Order No. 21 RBM&N s Exception to Proposed Conclusion of Law No. 18 and Proposed Order No. 21, on the purported basis that RBM&N would derive no benefit from the replacement of the bridge, is

45 likewise without merit and contradicted by the evidence of record. On the contrary, as discussed in the Exceptions of Fairview Township, which are incorporated by reference, a greater allocation should have been assigned to RBM&N by the Recommended Decision because it and its predecessors-in-title have enjoyed, and RBM&N will continue to enjoy, the benefits ofthe separatedgrade crossing. (See Exceptions of Fairview Township, pages 2 through 7.) By way of further reply, see Reply to Exception No. 1 above. 3. Reply to Exception to Proposed Order No. 21 RBM&N s Exception to Proposed Order No. 21 contends that, if federal or state funds become available, they should supersede the allocations set forth in the Recommended Decision s Proposed Order, with no allocation to RBM&N. This Exception ignores the portions of the Recommended Decision which provide that federal funds will not be used for the recommended project. (See, e.g.. Proposed Conclusion of Law No. 11, Page 65; Page 47). Likewise, it ignores those portions of the Recommended Decision which conclude, in accordance with the record, that no Bridge Bill funds are available for the project at this time. (See, e.g.. Proposed Finding of Fact Nos. 27 through 30, Pages 12-13; Page 47). In any event, at Page 47 of the Recommended Decision and in the context of restrictions place upon federal and/or Bridge Bill funds, ALJ Lovenwirth states: Therefore, I will recommend that my cost allocations will be without prejudice to the parties rights to recover their cost in accordance with any lawful agreement. Proposed Order No. 29 provides for the same ! 3

46 By way of further reply, see Page 11 of Exceptions of Fairview Township, which are incorporated by reference. CONCLUSION For all of the reasons stated above, as well as in the Exceptions of Fairview Township, FAIRVIEW TOWNSHIP respectfully requests that the Commission reject the Exceptions of Reading, Blue Mountain & Northern Railroad Company and, instead, grant the relief requested by the Exceptions of Fairview Township. ROSENN, JENKINS & GREENWALD, L.L.P. BY: ROBERT N. GAWLAS, JR? ESQUIRE Attorney I.D. No South Franklin Street Wilkes-Barre, PA (570) Attorneys for FAIRVIEW TOWNSHIP

47 COMMONWEALTH OF PENNSYLVANIA BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION Investigation upon the Commission s Own Motion : To Determine the Condition, Disposition, and Responsibility for Maintenance of the Existing Crossing Structure Carrying Mary Street (T-439) Docket Number Above the Grade of the Tracks of the Reading, Blue : Mountain and Northern Railroad Company in Fairview Township, Luzerne County : (AAR S) CERTIFICATE OF SERVICE The undersigned certifies that on January af. 1999, he filed the original and nine (9) copies of Fairview Township s Reply to Exceptions of Reading, Blue Mountain & Northern Railroad Company, by First Class U.S. Mail addressed to: Commonwealth of Pennsylvania Pennsylvania Public Utility Commission Prothonotary s Office P.O. Box 3265 Harrisburg, PA The undersigned certifies that on January PL, 1999, he served one (1) copy of the Fairview Township s Reply to Exceptions of Reading, Blue Mountain & Northern Railroad Company upon each the following by First Class U.S. Mail: The Honorable Richard M. Lovenwirth Administrative Law Judge Room 317, State Office Building 100 Lackawanna Avenue Scranton, PA David Salapa, Esquire Pennsylvania Public Utility Commission Bureau of Transportation and Safety P.O. Box 3265 Harrisburg, PA AND

48 Susan Simms, Esquire Pennsylvania-American Water Company 800 West Hershey Park Drive P.O. Box 888 Hershey, PA Jason D. Sharp, Esquire Commonwealth of Pennsylvania Department of Transportation Forum Place - Ninth Floor 555 Walnut Street Harrisburg, PA Jeffery H. Sunday, Esquire PG Energy, Inc. One PEI Center Wilkes-Barre, PA Eric M. Hocky, Esquire 213 West Miner Street P.O. Box 796 WestChester, PA Benjamin C. Dunlap, Jr., Esquire Nauman, Smith, Shissler & Hall 18th Floor, 200 North Third Street P.O. Box 840 Harrisburg, PA H. James Brozena County of Luzerne Luzerne County Courthouse 200 North River Street Wilkes-Barre, PA ROSENN, JENKINS & GREENWALD, L.L.P. BY: ROBERT N. GAWLAS, JR.#SQUIRE Attorney I.D. No South Franklin Street Wilkes-Barre, PA (717) Attorneys for FAIRVIEW TOWNSHIP

49 OS-2 (4-95) f OMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION James McNulty, Secretary Pennsylvania Public Utility Commission P.O. Box 3265 Harrisburg, PA Office of Chief Counsel Forum Place 555 Walnut Street - 9th Floor Harrisburg, Pennsylvania Telephone No. (717) Fax No. (717) January 29, 1999 (.n O r' -7J r' c:, Q ;-3 V.O In Re: Docket No Dear Secretary McNulty: Enclosed for filing please find the original and nine (9) copies of the Reply Exceptions of the Department of Transportation in the above-captioned matter. 1 1 hereby certify that the parties indicated on the Certificate of Service have been served with two (2) copies of said Exceptions. Very Truly Yours, EEF 220/JDS :jds cc: Honorable Richard Lovenwirth All Parties of Record William D. Pickering, P.E. (Attn: Fred Daniels) District 4-0 (Attn: Joe Strok) FOLDER