1 BEFORE THE PUBLIC UTILITIES COMMISSION OF OHIO 2 - - - 3 In the Matter of: : : Case No. 08-223-TR-CVF 4 Charles L. Snyder, Sr. : - - - 5 PROCEEDINGS 6 7 before Mr. James Lynn, Hearing Examiner, at the 8 Public Utilities Commission of Ohio, 180 East Broad 9 Street, Room 11-G, Columbus, Ohio, called at 10 a.m. 10 on Thursday, June 5, 2008. 11 - - - 12 13 14 15 16 17 18 19 ARMSTRONG & OKEY, INC. 20 185 South Fifth Street, Suite 101 Columbus, Ohio 43215-5201 21 (614) 224-9481 - (800) 223-9481 Fax - (614) 224-5724 22 - - - 23 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 2 1 APPEARANCES: 2 Ohio Attorney General's Office By Mr. Duane W. Luckey, 3 Senior Deputy Attorney General Public Utilities Section 4 By Mr. Werner L. Margard, III and Mr. Stephen A. Reilly 5 Assistant Attorneys General 180 East Broad Street, 9th Floor 6 Columbus, Ohio 43215 7 On behalf of the Staff of the PUCO. 8 Mr. Charles L. Snyder, Sr. 9 On his own behalf. 10 - - - 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 3 1 INDEX 2 - - - 3 Witness Page 4 Phillip Haskins Direct Examination by Mr. Reilly 5 5 Examination by The Examiner 25 Further Direct Examination by Mr. Reilly 27 6 John Canty 7 Direct Examination by Mr. Margard 29 8 Charles L. Snyder, Sr. Direct Examination 39 9 Cross-Examination by Mr. Reilly 44 Examination by The Examiner 45 10 - - - 11 Staff Exhibit Identified Admitted 12 1 Driver/Vehicle Examination Report 7 28 13 2 Forfeiture Assessment 32 38 14 3 Civil Forfeiture Violation Chart 33 38 15 4 Notice of Apparent Violation and Intent to Assess Forfeiture 36 38 16 5 Notice of Preliminary 17 Determination 37 38 18 - - - 19 20 21 22 23 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 4 1 Thursday Morning Session, 2 June 5, 2008. 3 - - - 4 THE EXAMINER: Let's go on the record at 5 this time. The Public Utilities Commission of Ohio 6 has assigned for hearing at this time and place Case 7 No. 08-223-TR-CVF in the Matter of Charles L. Snyder, 8 Sr., Notice of Apparent Violation and Intent to 9 Assess Forfeiture. 10 And at this time we will have the 11 appearance of counsel on behalf of the Ohio Attorney 12 General's Office. 13 MR. REILLY: Thank you, your Honor. 14 Please enter the appearance of Nancy H. Rogers, 15 Attorney General, by Duane W. Luckey, Section Chief, 16 and Stephen Reilly and Werner Margard, III, Assistant 17 Attorneys General, Public Utilities Commission, 180 18 East Broad Street, Columbus, Ohio 43215 on behalf of 19 the Staff of the Public Utilities Commission. 20 THE EXAMINER: And, Mr. Snyder, if you 21 would like to state your name and address and so 22 forth for the court reporter. 23 MR. SNYDER: Charles L. Snyder, Sr., 338 24 Shanahan Road, Lewis Center, Ohio. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 5 1 THE EXAMINER: How do you spell that, 2 Mr. Snyder, by the way? 3 MR. SNYDER: Shanahan, S-H-A-N-A-H-A-N. 4 THE EXAMINER: Okay. Thank you. 5 All right. Mr. Reilly, are you ready to 6 proceed with your first witness? 7 MR. REILLY: We are, your Honor. We 8 would call to the witness stand Mr. Phillip Haskins. 9 (Witness sworn.) 10 THE EXAMINER: Mr. Reilly, are you 11 submitting, I assume, what will be Staff Exhibit 1? 12 MR. REILLY: We will with this witness 13 actually, your Honor. 14 THE EXAMINER: Okay. That's fine. 15 MR. REILLY: It should be marked. 16 - - - 17 PHILLIP HASKINS 18 being first duly sworn, as prescribed by law, was 19 examined and testified as follows: 20 DIRECT EXAMINATION 21 By Mr. Reilly: 22 Q. Good morning, Mr. Haskins. 23 A. Good morning. 24 Q. Would you spell your name for the court ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 6 1 reporter. 2 A. Phillip Haskins, P-H-I-L-L-I-P 3 H-A-S-K-I-N-S. 4 Q. By whom are you employed, Mr. Haskins? 5 A. State of Ohio Public Utilities 6 Commission. 7 Q. And what's your business address with the 8 Commission? 9 A. Transportation Department, 14th Floor, 10 180 East Broad Street, Columbus, Ohio 43215. 11 Q. And what's your position with the Public 12 Utilities Commission? 13 A. I am a hazardous materials inspector. 14 Q. And what are your duties as a hazardous 15 materials inspector? 16 A. My duties include enforcing the motor 17 carrier safety regulations and hazardous materials 18 regulations through roadside vehicle inspections, 19 facility inspections, and motor carrier 20 facility-owned inspections. 21 Q. How long have you been a hazardous 22 materials inspector? 23 A. Over 20 years. 24 Q. And have you been a hazardous materials ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 7 1 inspector your entire tenure with the Commission? 2 A. I have. 3 Q. Now, as a hazardous materials inspector, 4 have you had an occasion to enforce the State and 5 Federal Motor Safety -- Motor Carrier Safety Rules? 6 A. Yes. 7 Q. And the -- can you tell us, do the 8 federal and state safety rules -- are they -- are 9 they verbatim the same? 10 A. Yes. 11 Q. Okay. Inspector Haskins, I put in front 12 of you a document marked for identification purposes 13 as Staff Exhibit 1. Can you find that document up 14 there on the witness stand for us? 15 A. Yes. 16 Q. Would you take a look at it and review 17 it. Can you tell us what it is? 18 A. This is a copy of an inspection report 19 that I conducted in November of 2007. 20 Q. Have you ever seen a document like this 21 before, an inspection report? 22 A. Yes. 23 Q. Could you tell us how they come into 24 existence? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 8 1 A. In my duties of inspecting commercial 2 motor vehicles I complete the inspection report, and 3 the final copy of the inspection is a document that 4 looks like this. 5 Q. Okay, okay. And this is an inspection of 6 what? 7 A. This is an inspection of a vehicle owned 8 and operated by Flying J Transportation operated by 9 the driver of Charles Snyder. And this was conducted 10 on the Philippi Road in Franklin County, Ohio. 11 Q. Okay. And do you remember the incident 12 that led to this inspection? 13 A. Yes, I do. 14 Q. Can you tell us what happened? 15 A. I was parked on an adjacent property 16 owned by the railroad and observed the vehicle 17 operated by Mr. Snyder, the Flying J Transportation 18 cargo tank vehicle, approach a set of railroad 19 tracks, N&S-operated railroad tracks, and I observed 20 the vehicle make a brief stop at the intersection of 21 the rail and highway, and as a train was approaching 22 from the west, the cargo tank pulled through the 23 intersection. 24 Q. And let's talk a little bit in more ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 9 1 detail about the scene out there. Could you describe 2 just generally the vicinity of this intersection for 3 us. 4 A. The intersection is an industrial area, I 5 would classify as a heavy industrial area with 6 commercial vehicle activity in high numbers operating 7 on the highway. The railroad track is a main line 8 crossing of the N&S Railroad Company which is also a 9 heavily traveled rail track and is utilized between 10 Columbus, Ohio, and Cincinnati, Ohio. And there are 11 also hazardous materials facilities in the area which 12 was what the destination of the vehicle that was 13 inspected was, fuel -- a fuel depo, numerous fuel 14 facilities where loading occurs. The geography is -- 15 again, it's quite industrial. It's relatively flat, 16 and from my viewpoint I had an unobstructed view of 17 the entire crossing at the incident. 18 Q. Now, when we talk about an intersection, 19 you are talking about the intersection of the 20 railroad tracks and Philippi Road? 21 A. Correct. 22 Q. And Mr. Snyder -- well, first of all, you 23 were situated where on Philippi Road? 24 A. No. I was parked on railroad property ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 10 1 adjacent to the railroad and perpendicular to 2 Philippi Road facing westbound. 3 Q. Okay. Did you see Mr. -- and did you see 4 Mr. Taylor's truck as it approached the -- I'm sorry. 5 Did you see Mr. Snyder's truck as it approached the 6 intersection? 7 A. Yes, I did. 8 Q. Okay. And what was going on on the 9 railroad tracks as this truck approached the 10 intersection that you could see? 11 A. As, again, my position was facing 12 westward, I could see the train approaching from west 13 to east, and I saw the Flying J cargo tank vehicle 14 traveling in a northbound direction on Philippi Road 15 come to the crossing and the vehicle briefly stopped 16 at the crossing with the train approaching and then 17 proceeded through the crossing as the train was 18 approaching. I could hear the warning siren from the 19 train crossing and saw the lights activated, and as 20 the vehicle proceeded through the crossing, the gates 21 come down immediately after the vehicle passed 22 through the intersection. 23 Q. So the crossing has a warning gate -- a 24 warning lights and gate? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 11 1 A. It does. 2 Q. Okay. Do you -- have you discovered 3 how -- when the warning lights are typically 4 activated? 5 A. That is a double crossing. The 6 regulatory guidelines from FRA, the Federal Railroad 7 Administration, states that the crossing warning 8 activation will occur approximately 1,500 feet from 9 the train approaching the intersection. 10 Q. Okay. And how long after that did the 11 gates come down? 12 A. I would estimate that to be it's 13 required -- the gates should be activated within 10 14 seconds once the warning signal has activated. 15 Q. Is there some sort of speed limit on the 16 train as it approaches a crossing like this? 17 A. That -- that crossing is regulated by the 18 FRA for the train to operate no greater than 35 miles 19 per hour. 20 Q. Okay. So the train would have been 21 closing from 1,500 feet at in the neighborhood of 22 35 miles an hour. 23 A. Approximately. 24 Q. Okay. Now, when -- you said you have ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 12 1 been a hazardous -- you have been an inspector for 2 over 20 years. Have you ever seen trucks at a 3 railroad crossing before? 4 A. Yes. 5 Q. Have you seen trucks at a railroad 6 crossing with trains approaching before? 7 A. Yes. 8 Q. Okay. In your opinion at the time 9 Mr. Snyder entered the -- started across the railroad 10 tracks, was it safe for him to do so with his truck? 11 A. No. 12 Q. And why was that? 13 A. Because the train was eminently close, 14 the sirens had activated, and the train would have 15 activated his warning signal as well. 16 Q. Now, was your view of the train 17 obstructed in any way? 18 A. No. 19 Q. Did you -- you saw Mr. Snyder's truck 20 stopped. 21 A. Yes. 22 Q. Was his view obstructed in any way that 23 you could see? 24 A. I don't believe so. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 13 1 Q. Now, was there another truck in the area? 2 A. As stated earlier, it is a heavily 3 traveled route for industry and there were commercial 4 vehicles in the area. 5 Q. Okay. Was there any commercial vehicle 6 located around this intersection when he started 7 through it? 8 A. Yes. I can remember several vehicles in 9 the other lanes of travel. 10 Q. Okay. Were there other vehicles on -- 11 that were going in the same direction as -- that he 12 was going? 13 A. Yes. 14 Q. Okay. And they were in the same lane or 15 different lanes or both? 16 A. Both lanes. 17 Q. Okay. Did any other truck try to go 18 across the railroad tracks at the time he tried to go 19 across? 20 A. I don't remember. I do remember vehicles 21 stopped at the intersection, and then Mr. Snyder's 22 vehicle was through the intersection. 23 Q. Now, after you observed Mr. Snyder trying 24 to go through the intersection -- scratch that. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 14 1 After Mr. Snyder started through the 2 intersection, what happened? Can you describe that 3 for us? 4 A. Again, the train was approaching from the 5 west. Mr. Snyder's vehicle came to the intersection, 6 briefly stopped. At that point the lights activated 7 and Mr. Snyder proceeded through the crossing and as 8 he immediately proceeded through the crossing, the 9 gates were activated and they closed the 10 intersection. 11 Q. Okay. What happened then? 12 A. From my position I was able to get -- 13 drive my vehicle back to Philippi Road, waited for 14 the train to cross, and traveled through the 15 crossing, and observed Mr. Snyder's vehicle parked at 16 the loading facility at the Marathon Ashland fuel 17 loading facility. 18 Q. And what -- were you able to ascertain 19 what was in Mr. Snyder's vehicle when he crossed the 20 railroad tracks? 21 A. Yes. 22 Q. What was that? 23 A. At the time he had a residue of flammable 24 liquid. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 15 1 Q. When you talk about residue, roughly what 2 do you mean? 3 A. The vehicle is a bulk approximately 65 to 4 7,000 gallon transport vehicle that had previously 5 transported a hazardous material which in this case 6 bulk transport vehicles remain placarded even while 7 transporting the residue of a hazardous material. 8 Q. And the hazardous material would have 9 been what in this case? 10 A. A class 3 flammable material. 11 Q. Something like gasoline? 12 A. Yes. 13 Q. Now, just for the record when they -- 14 let's talk about tankers for a second. How do they 15 empty tankers? Do you know? Full tankers. 16 A. Tanks are emptied utilizing pressure and 17 hoses into bulk storage facilities. 18 Q. And is it true that the -- the connection 19 to the tanker that they connect the hose to is above 20 the bottom of the tanker? I mean is at the bottom of 21 the tank? 22 A. The dis -- the discharge dispensing 23 valves are normally located below the cargo tank. 24 Q. Okay. Is there always some residue left ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 16 1 in tankers? 2 A. Yes, there is. 3 Q. If the train had hit the truck, would 4 there have been a danger of fire? 5 A. Yes. 6 Q. Now, let's go back to the event for a 7 moment. After you saw Mr. -- after you proceeded 8 through the intersection and the train has passed, 9 you proceeded through the intersection, you found 10 Mr. Snyder's truck, what happened then? 11 A. I waited for Mr. Snyder to load another 12 load at the Marathon loading facility and inspected 13 the vehicle as he exited the facility. The security 14 is such in that facility where only transport 15 vehicles can enter through a certain gate, so my 16 vehicle would not be permitted to go through that 17 gate. I have to enter on the other side of the 18 facility and wait for those vehicles to get loaded 19 and come through that complex. 20 Q. Okay. And what happened when he came 21 through the complex and out of the complex? 22 A. I made him aware of why I was inspecting 23 him and reviewed the facts of why I was inspecting 24 the vehicle, what happened briefly at the grade ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 17 1 crossing. 2 Q. And what transpired between you when you 3 were inspecting? 4 A. He didn't -- there was some dialogue that 5 were -- we talked about the facts, I discovered the 6 vehicle went through the crossing with the train 7 approaching, and he did make some statements that he 8 saw the train. I write in my notes the driver stated 9 during the inspection that I started to move. I saw 10 the train. I thought the gates were going to hit me. 11 I just kept going was the dialogue that Mr. Snyder 12 had told me during the inspection. 13 Q. After -- what happened then in the 14 inspection? 15 A. Just a normal routine inspection, I 16 conducted an inspection of the driver, Mr. Snyder's 17 credentials, the type of cargo he was transporting, 18 and the vehicle that he was operating at the time. 19 Q. And what did you do then? 20 A. I produced this document Staff Exhibit 1 21 that is a photocopy of the inspection I constructed 22 and provided the driver a copy of it. 23 Q. Do you make notes or record of the 24 inspection in any way? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 18 1 A. Yes, I do. 2 Q. And how is that done? 3 A. The notes that I complete is a 4 biographical summary of the events or facts that took 5 place during the inspection. In this case I made 6 notes of particular events and the occurrence of the 7 significance of the train approaching the 8 intersection at the grade crossing and the vehicle 9 traveling through the intersection. 10 Q. Is there ever a record of that made for 11 federal or -- and state regulatory purposes, a record 12 of the inspection made for state and federal 13 regulatory purposes? 14 A. Yes. 15 Q. And can you explain that to us? 16 A. This document before me, Staff Exhibit 1, 17 is an office copy of the document that I would 18 produce. The actual report that I maintain is an 19 electronic copy that is uploaded into the state data 20 collection and the federal data collection program. 21 Q. And is this normally done after 22 inspections? 23 A. It is. 24 Q. Okay. And why is it uploaded into the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 19 1 federal and state data programs, if you know? 2 A. The Federal Motor Carrier Safety 3 Administration collects data as well as the Public 4 Utilities Commission to obtain statistical facts and 5 analysis of violations relative to the industry. And 6 the offices of the Public Utilities Commission, it 7 collects the data to seek out civil compliance, if 8 necessary, if the violations are significant enough. 9 Q. Now, I would like to talk about Staff 10 Exhibit 1 for just a little bit. If you would look 11 in the upper -- you just talk about how to read it, 12 if you could. If you look at the top of the document 13 under Driver/Vehicle Examination Report, do you see 14 that? 15 A. Yes. 16 Q. Would you describe the items under that 17 heading and what they mean? 18 A. This document has a report number, an 19 inspection report number, that is created 20 sequentially by my state-issued laptop computer. 21 Once I conduct an inspection, the report number is 22 assigned to it. It also includes the inspection date 23 which was 11-9 of 2007, the time that the inspection 24 was started, time the inspection is completed, the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 20 1 type of inspection in this case was a level 2 2 inspection which is a walk-around inspection of the 3 vehicle and its components and it was a bulk 4 hazardous materials inspection by classification. 5 Q. Does the report number differentiate this 6 inspection report from all other inspection reports? 7 A. Yes. 8 Q. Okay. So this is the -- this is the only 9 inspection report that would have that report number? 10 A. Yes. 11 Q. Is the driver involved with -- in the 12 matter indicated anywhere? 13 A. Yes. The next category involves the 14 employer, the motor carrier, in this case it was a 15 Flying J Transportation owned vehicle, and the 16 address of the motor carrier is listed on the left 17 margin, Ogden, Utah, has a telephone number and 18 biographical identification of the company, United 19 States Department of Transportation census number, 20 and motor carrier identification number. Those are 21 all specific to the transporter. And also identifies 22 the name of the driver, his CDL number, CDL state, 23 and the date of his birth. 24 Q. Now, in the next box I see -- the next ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 21 1 group of boxes I see the title origin. What does 2 that mean? Do you see origin? 3 A. Yes. The origin deals with the commodity 4 of the load that was being transported. 5 Q. The origin of that commodity. 6 A. Yes. 7 Q. And the destination, do you see that? 8 A. Was the final destination of Columbus, 9 Ohio. 10 Q. Okay. And who was the shipper? 11 A. The shipper was Marathon Petroleum. 12 Q. Okay. Now, the -- you see where it lists 13 cargo? 14 A. Yes. 15 Q. What is indicated there? 16 A. It indicates that the entire load was 17 hazardous materials. 18 Q. Okay. Now, down in the -- there is a 19 section marked violations. Do you see that? 20 A. Yes. 21 Q. What's in the violation section? 22 A. The violations are the deficiencies that 23 I discovered doing the actual inspection. In this 24 case I discovered two violations of the Federal Motor ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 22 1 Carrier Safety Regulations, one of which was a 2 railroad grade crossing and the ABS brake lamp 3 defective on the trailer. 4 Q. And, now, there is -- looking on down the 5 Staff Exhibit 1 there is an area marked inspection 6 notes. Do you see that? 7 A. Yes. 8 Q. What's in there? 9 A. These are my notes that I complete after 10 the inspection. This category of information is 11 captured on this type of report. The document that 12 the driver receives does not receive the inspection 13 notes. 14 Q. When are the inspection notes recorded? 15 A. During the inspection -- 16 Q. You did -- 17 A. -- upon completing the report. 18 Q. And you did that in this case? 19 A. I did. 20 Q. What happened then? 21 A. I completed the report by printing off a 22 document for the driver and presented the document to 23 the driver on completion of the inspection. 24 Q. Okay. Anything else occur? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 23 1 A. No. 2 MR. REILLY: Could I have a moment, your 3 Honor? 4 THE EXAMINER: Yes. 5 Q. Mr. Haskins, just a few final questions, 6 going back to when Mr. Snyder was driving a truck 7 across the railroad tracks, the residue in the truck 8 was what? A flammable? 9 A. A flammable liquid. 10 Q. Okay. And that would have been a 11 hazardous material? 12 A. Yes. 13 Q. Same kind of a liquid as was in the -- as 14 shown in the cargo when you inspected the truck? 15 A. I believe so. I am not certain what he 16 had at the time of the outbound shipment after I 17 inspected him. At the time I saw him he had the 18 residue of a hazardous material. 19 Q. At the time -- how much time passed 20 between the time you saw him cross the intersection 21 and the time you stopped him and inspected? 22 A. Approximately 20 minutes. 23 Q. Okay. Would that have been enough time 24 to clean a tanker truck? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 24 1 A. In this case the vehicle was not cleaned 2 or vaporized. It was reloaded with another hazardous 3 materials shipment. 4 Q. He was going to a reloading facility. 5 A. Yes. 6 Q. In your experience, Mr. Haskins, would 7 you reload gasoline -- the flammable, the reloading 8 facility was filling his vehicle with what? 9 A. Another shipment of a fuel of some type. 10 Q. Would you have reloaded a fuel into a 11 tanker that contained any other product? 12 A. It's custom that is a cycle of shipments 13 that they reload fuels daily and make delivery daily 14 after certain types of products whether they be 15 different grades of gasoline or fuel oil or diesel 16 fuel. 17 MR. REILLY: Thank you, Mr. Haskins. 18 THE EXAMINER: Mr. Snyder, do you have 19 any questions of the witness? 20 MR. SNYDER: Basically, no. The way I 21 remember is I was sitting -- 22 THE EXAMINER: Mr. Snyder, you can give 23 your version of those facts when you are up on the 24 witness stand but do you have any questions for the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 25 1 witness? 2 MR. SNYDER: No. 3 THE EXAMINER: You don't have any, okay. 4 - - - 5 EXAMINATION 6 By The Examiner: 7 Q. Mr. Haskins, you said you are indicating 8 the vehicle was placarded class 3 at the time it 9 approached the grade crossing. 10 A. Yes. 11 Q. And that the vehicle did stop and then 12 proceed over the tracks and at the time it proceeded 13 over the tracks, that's when the lights and gates 14 were activated, that is, the lights and gates were 15 activated by the approaching train at the time the 16 vehicle went over the tracks. 17 A. The sequence occurs as the train 18 approaches from a distance of less -- 1,500 feet, the 19 lights activate. And then sequentially, 20 approximately 10 seconds, the gates become activated 21 after that signal. As I was positioned, I observed 22 the vehicle approach, make a brief stop, as he was in 23 the intersection, the lights activated, and as I was 24 able to get to the pavement of the Philippi Road ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 26 1 street, I was observing the gates coming down nearly 2 striking the rear of the tanker. 3 Q. So as Mr. Snyder crossed over the tracks 4 in his vehicle, that's when the lights came on, the 5 lights for the train? 6 A. Yes. 7 Q. And then, again, how did you determine it 8 was residue in the tank? 9 A. The shipping document he presented was 10 from a previous delivery that day. 11 Q. I see. 12 A. The vehicle was coming back from a 13 facility, another trucking facility, and making a 14 delivery and he was returning to the Marathon 15 petroleum facility to reload. 16 Q. Okay. So you inspected him before the 17 load had been refilled. 18 A. No. I had to wait for his -- see, I had 19 to wait for the passing train. The vehicle proceeded 20 to the Marathon facility and was already loading 21 another load by the time I got there. 22 Q. But you -- go ahead. 23 A. But then I had to wait. Through their 24 safety and security situation I waited for the ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 27 1 vehicle to reload and exit that facility, and I then 2 inspected him. 3 Q. And apparently he still had the shipping 4 documents from the prior -- 5 A. Yes, he did. 6 THE EXAMINER: Prior trip. Okay. I have 7 no further questions. 8 MR. REILLY: Your Honor, if I might? 9 - - - 10 FURTHER DIRECT EXAMINATION 11 By Mr. Reilly: 12 Q. Mr. Haskins, let's go back to when the 13 train was approaching and the time immediately before 14 Mr. Snyder started onto the railroad tracks, okay? 15 Did you see the train approaching prior to the lights 16 being activated? 17 A. Yes. 18 Q. Was there any obstruction to the view of 19 anybody looking west of the -- that would have 20 obstructed the vehicle of the train approaching? 21 A. From my perspective, no. I was the 22 eastern most vehicle in the intersection, and I could 23 see from the direction I faced the train approaching 24 me and the Flying J vehicle operated by Mr. Snyder ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 28 1 and other commercial vehicles come to the crossing. 2 Q. Okay. So you saw him enter the 3 intersection with a train coming. 4 A. I did. 5 MR. REILLY: Okay. Thank you, your 6 Honor. 7 THE EXAMINER: Okay. You may take your 8 seat. Thank you, Mr. Haskins. 9 And, Mr. Snyder, if you would like to 10 come up to the witness stand, please. 11 MR. MARGARD: We have one more witness. 12 THE EXAMINER: I'm sorry. I apologize. 13 MR. MARGARD: Staff would like to call 14 Mr. John Canty to the stand. Thank you. 15 THE EXAMINER: I'm sorry. 16 (Witness sworn.) 17 MR. REILLY: We would move -- excuse me. 18 We would move into evidence Staff Exhibit 1. 19 THE EXAMINER: That will be admitted into 20 evidence. Thank you. 21 (EXHIBIT ADMITTED INTO EVIDENCE.) 22 THE EXAMINER: Please continue, 23 Mr. Margard. 24 MR. MARGARD: Thank you, your Honor. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 29 1 JOHN CANTY 2 being first duly sworn, as prescribed by law, was 3 examined and testified as follows: 4 DIRECT EXAMINATION 5 By Mr. Margard: 6 Q. Please state your name and business 7 address. 8 A. John J. Canty, C-A-N-T-Y, Public 9 Utilities Commission of Ohio, 180 East Broad Street, 10 Columbus, Ohio 43215. 11 Q. And you are employed by the Public 12 Utilities Commission? 13 A. Yes. 14 Q. And what is your job title? 15 A. I am the Assistant Chief of the 16 Compliance Division. 17 Q. And what are your responsibilities? 18 A. I supervise the employees who are 19 responsible for assessing violations that are 20 discovered during roadside inspections. 21 Q. You have been present for almost all of 22 the hearing so far today, haven't you? 23 A. Yes. 24 Q. And have you seen the document that has ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 30 1 been admitted as Staff Exhibit No. 1, the report of 2 the investigation? 3 A. No, I have not. 4 MR. MARGARD: May I approach, your Honor? 5 THE EXAMINER: Yes. 6 Q. Does that refresh your recollection at 7 all, Mr. Canty? 8 A. Yes. 9 Q. Have you seen this document? 10 A. I have seen this document before, yes. 11 Q. And is this something you reviewed in 12 preparing your testimony today? 13 A. Yes, it is. 14 Q. And something that's maintained as part 15 of the Commission's file in this particular case? 16 A. Yes. 17 Q. And do you note the violations section? 18 You note the section with regard to failing to stop 19 at the railroad crossing? 20 A. Yes. 21 Q. There is an indication there that the 22 unit is D. What does that represent? 23 A. D is for the driver. The violation was 24 cited against the driver. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 31 1 Q. There are two violations here. The other 2 violation, I take it, then is for the carrier. 3 A. That's correct. It was on the unit 2 4 which would have been the trailer as opposed to the 5 tractor. 6 Q. There is only one violation that's being 7 assessed here today against Mr. Snyder. 8 A. That's correct. 9 Q. And can you tell me the process or the 10 procedure by which you determine the calculation of 11 the civil forfeiture to be assessed? 12 A. Yes. We have a civil for -- civil 13 forfeiture matrix that we use. It breaks the 14 violations down into various categories, and it 15 assigned them numerical values ranging from 1 up to I 16 believe 10. We then take those values and plug them 17 into our assessment matrix, do some math on that, 18 take into consideration what was being transported, 19 the amount of material and several other factors as 20 well. Then we come up with a dollar amount for the 21 fine, forfeiture. 22 MR. MARGARD: May I approach, your Honor? 23 THE EXAMINER: Yes, sir. 24 MR. MARGARD: Thank you. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 32 1 Q. Mr. Canty, I have handed you a document 2 that's been marked for purposes of identification as 3 Staff Exhibit No. 2. You indicated you placed a 4 number of values into a form, a forfeiture assessment 5 form? 6 A. Yes. 7 Q. This is the form to which you referred? 8 A. This is the form, yes. 9 Q. And specifically is this the form that 10 was used with respect to this particular 11 investigation? 12 A. Yes, it was. 13 Q. And I believe you indicated that the 14 values that are placed in this form are from a matrix 15 that is maintained by the Commission; is that 16 correct? 17 A. That is correct. 18 Q. And how is that matrix developed? 19 A. It was developed internally through the 20 experience of the Staff here at the PUCO. 21 Q. And are those determinations, those 22 values or the monetary values, assessed based on any 23 particular standard? 24 A. We reference the CVSA, Commercial Vehicle ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 33 1 Safety Alliance, recommendations for the minimum 2 compliance standards, yes. 3 Q. And so the fines and the different 4 weights and values are consistent with the CVSA 5 standards? 6 A. Yes. 7 MR. MARGARD: May I approach, your Honor? 8 THE EXAMINER: Yes. 9 MR. MARGARD: Thank you. 10 Q. Mr. Canty, I have handed you a multiple 11 page document marked for purposes of identification 12 as Staff Exhibit No. 3. Is this the matrix that 13 contains the values that are then placed into the 14 forfeiture assessment document marked as Staff 15 Exhibit No. 2? 16 A. Yes. 17 Q. Would you please demonstrate for us how 18 the forfeiture was determined in this case using 19 these documents. 20 A. Yes. Looking at Staff Exhibit 2 the 21 first violation -- the only violation noted there is 22 392.10A4, railroad crossing violation with a cargo 23 tank. The number -- the first value in the column 24 underneath that for nature and gravity you would turn ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 34 1 to the -- the fourth page, here we go, of Staff 2 Exhibit 3. There are several violations listed 3 there. One of them is failure to stop at a railroad 4 grade crossing. That has a point value of 1 so that 5 value of 1 was then entered into the column under 6 nature and gravity. The next row going down is 7 extent of violation. The value 0 is in that. Actual 8 harm is the next column. 0 is in that and other 9 circumstances 0 is in that. You add up those 10 three -- I'm sorry, four columns there, four rows in 11 that column, you come to a subtotal of 1 point. 12 In the row marked B hazardous material, 13 we then reference the very next page of Staff Exhibit 14 3 where it says material hazard chart -- hazard class 15 division, what was being transported that day was a 16 combustible liquid. If we look near the bottom of 17 the chart point value for combustible liquid is .5 so 18 the value of .5 is entered in that box there. 19 The next column down -- next row down in 20 that column C the amount of material was a residue. 21 If you turn to the next page in Staff Exhibit 3, you 22 can see the point value for residue is .2. The next 23 row down, D, you add together the values in B and C 24 and multiply them times the subpoint in row A, you ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 35 1 come up with a point value of .7. The next two 2 values moving down the column are respondent 3 culpability and history, both of those values are 1. 4 The next value down is still a .7 because what we 5 have done is multiplied .7 times 1. Obviously that's 6 still .7 and the very last row of that column you 7 take the point value from G which is .7, multiply it 8 times $75 which is the baseline for all hazardous 9 material violations and .7 times 75 is $52.50. 10 Q. Just so I'm clear here, as I take a look 11 at the extent of the violation, the actual harm, the 12 other circumstances, none of those things enhanced in 13 any way the amount of forfeiture here; is that 14 correct? 15 A. No, no, it did not. 16 Q. The same is true with respect to the 17 culpability and the history here? 18 A. That is correct. 19 Q. In your professional opinion is the 20 amount owed for forfeiture in this case appropriate 21 and reasonable? 22 A. Yes. 23 MR. MARGARD: May I approach, your Honor? 24 THE EXAMINER: Yes. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 36 1 Q. Mr. Canty, I have handed you a single 2 page document marked for purposes of identification 3 as Staff Exhibit No. 4. Do you recognize this 4 document? 5 A. Yes. 6 Q. Is this document part of the Commission's 7 file in this case? 8 A. Yes, it is. 9 Q. Can you tell me what this document is, 10 please? 11 A. Yes. This is what we refer to as the 12 Notice of Apparent Violation and Intent to Assess 13 Forfeiture. It's regarding the inspection that 14 occurred on November 9. This is a notice that is 15 required be sent to the party responsible for the 16 violation, in this case it was Charles L. Snyder. It 17 references the violation that was discovered that day 18 which was violation 392.10A4, failure to stop at a 19 railroad grade crossing, and listed the amount of 20 forfeiture, $57.50. 21 Q. You indicate this notice is required to 22 be given to the respondent, Mr. Snyder in this case. 23 A. Yes. 24 Q. In your opinion was this notice properly ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 37 1 and timely given to Mr. Snyder? 2 A. Yes, it was. 3 MR. MARGARD: May I approach, your Honor? 4 THE EXAMINER: Yes. 5 Q. Mr. Canty, I have handed you a two-page 6 document that's been marked for purposes of 7 identification as Staff Exhibit No. 5. Have you seen 8 this document before? 9 A. Yes. 10 Q. And can you tell me what this document 11 is, please? 12 A. Yes. This is what we refer to as the 13 Notice of Preliminary Determination. This is the 14 document that we send to the responsible party after 15 a conference has been conducted. It informs the 16 party of the Commission's -- of our recommendation to 17 the Commission, and in this case we recommended that 18 the fine be maintained at the amount that was 19 assessed, $57.50. 20 Q. This notice is required to be given to 21 the Respondent? 22 A. Yes. 23 Q. And in your professional opinion was this 24 notice properly and timely given to Mr. Snyder in ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 38 1 this case? 2 A. Yes. 3 Q. This document is also maintained as part 4 of the Commission's file in this case? 5 A. Yes, it is. 6 MR. MARGARD: Your Honor, I would 7 respectfully move for the admission of Staff Exhibits 8 2 through 5 subject to cross-examination and would 9 tender the witness for that purpose. 10 THE EXAMINER: Thank you. 11 Mr. Snyder, did you have any questions of 12 Mr. Canty -- 13 MR. SNYDER: No, sir. 14 THE EXAMINER: -- concerning the 15 calculation of the fine or any of the exhibits that 16 were put in front of you? 17 MR. SNYDER: No. 18 THE EXAMINER: Mr. Canty, thank you. 19 MR. MARGARD: And I would renew my 20 motion, your Honor. 21 THE EXAMINER: And Staff Exhibits 2 22 through 5 will be admitted into evidence. 23 (EXHIBITS ADMITTED INTO EVIDENCE.) 24 MR. MARGARD: Thank you. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 39 1 THE EXAMINER: Mr. Snyder, now, you have 2 your opportunity to come up to the witness stand. 3 - - - 4 CHARLES L. SNYDER, SR. 5 being first duly sworn, as prescribed by law, was 6 examined and testified as follows: 7 DIRECT EXAMINATION 8 THE EXAMINER: This is your 9 opportunity -- actually, Mr. Snyder, first, if you 10 would like to state any comments you have about the 11 violation, your recollections of it, and so forth, 12 and then it will be the opportunity for Mr. Reilly to 13 ask some cross-examination questions. 14 THE WITNESS: Okay. On the morning of 15 the incident I was approaching the railroad crossing. 16 I was slowing down. I looked to my right. I saw the 17 officer sitting there. I stopped at the crossing as 18 normal. I looked to the left. I noticed box cars 19 that -- the back end of box cars, and I could not 20 tell which direction they were going. As I looked 21 back, checked the other direction, I saw nothing. 22 The vehicles were moving. I looked back to my -- to 23 the west. 24 THE EXAMINER: That would have been to ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 40 1 your left? 2 THE WITNESS: To my left again. As I 3 started to look back, I noticed there was a Swift 4 truck just speeding across the track. I -- 5 THE EXAMINER: You mean Swift as in Swift 6 Transportation? 7 THE WITNESS: Swift Transportation. 8 THE EXAMINER: It had a tractor-trailer 9 or something? 10 THE WITNESS: Yes. So I started to move 11 my head back. I started to give the truck a little 12 gas because I have -- I did not hear the bells or the 13 whistles yet. As the truck started to move forward, 14 I looked back to my right. At that point I noticed 15 in the side of the flat warning lights, they have 16 like a little breather hole, and I saw the white 17 lights start flashing. 18 THE EXAMINER: At that point you were 19 still not moving. 20 THE WITNESS: I was moving forward. 21 THE EXAMINER: You were moving. 22 THE WITNESS: I was moving forward 23 because of the -- the transmission and the engine in 24 the truck I have to give it fuel to get it started ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 41 1 and then there is a slight little grade and the truck 2 was moving at that time. And as I saw it, I figured 3 to myself, well, if I stop, I am going to be sitting 4 partially on the track. The gate is going to be 5 coming down. I could damage the truck or the gate. 6 I just -- I went, made a judgment call, bad one, and 7 got through and I was watching in the mirrors. And 8 as the officer stated, the gate closed as the rear of 9 the truck on my truck passed through it. 10 And I proceeded down to the loading rack 11 of Marathon because that was the safest haven to park 12 and waited. I'm not -- I guess I am here to state 13 that I feel like I didn't fail to stop at the tracks. 14 I feel like the officer said I was a brief stop. I 15 disagree. I mean, I don't know how long. I mean, I 16 looked to my right, I looked to my left, I looked 17 back to my right, I looked to my left, and as I 18 started to give fuel to the truck to go, I always 19 look back to my right. It's just a habit. And I 20 don't know how long that took or how long it takes. 21 The next thing that I remember is I 22 was -- got in the Marathon, started going through the 23 cycle to load. I saw the officer pull up outside the 24 gate. I made no attempt to leave the incident. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 42 1 I just -- I feel that the failure to stop 2 and the penalty that I face under the fine I have no 3 problem with. I did something wrong. I just -- I 4 just guess I can't afford the reprehens -- I don't 5 know the word. I need to work. I feel that I did 6 stop. I did look both ways normal. As I say, I 7 normally look, and to me I could not tell which way 8 the train was coming. I did not know if it had 9 already passed. I just saw the end of the box car, 10 and when I looked back to get another judgment, my 11 view was blocked, and I was already starting to give 12 the truck fuel so I wouldn't roll backwards. 13 And it was a bad decision. I am not 14 denying that I did something wrong, but I feel in my 15 heart that I did stop and proceed like I should have. 16 I didn't fail to stop. Maybe I didn't obey a signal, 17 or I made the wrong call when I noticed that the 18 signal was starting. 19 Basically everything else the officer 20 said was true except the way I remember he was -- he 21 stopped over on Philippi by the fence. I sort of 22 made eye contact, but I was moving at the time. When 23 I got out of the vehicle, he was -- I think he came 24 around on Fishinger and came into the exit gate area ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 43 1 which has a bigger place to park. I accidentally 2 clipped the back of a Marathon truck and busted his 3 left side clearance light, so we were in the office 4 taking care of that. And the officer and I met as we 5 were coming out of the office to take care of that 6 problem and the way I remember is I gave you all the 7 paperwork and we sort of did the inspection as I was 8 moving through line. And it was my turn to load. 9 You told me to go ahead and load and you would do all 10 the paperwork in your vehicle outside the gate and as 11 I was getting my paperwork getting ready to leave the 12 gate, the officer and I met semi between the gate and 13 received all the paperwork and we did bid ourselves 14 farewell and we went on. 15 Like I said, I committed a violation. I 16 just -- the failure to stop and the fact that it was 17 on my record is -- I am working poor. I need to 18 work, and I just can't take the time, you know, that 19 I know what the penalty is. I guess that's it. 20 THE EXAMINER: Mr. Reilly, do you have 21 any questions of Mr. Snyder? 22 MR. REILLY: Just a couple. 23 - - - 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 44 1 CROSS-EXAMINATION 2 By Mr. Reilly: 3 Q. Mr. Snyder, I know this is difficult. 4 The -- have you been across this railroad track, this 5 crossing, before? 6 A. Many times, I was coming out of Grove 7 City from FedEx. I delivered a load of ultra load 8 diesel. I don't like crossing it. I try to avoid it 9 for the simple fact it is busy, vehicle traffic and 10 train traffic. It is a busy crossing. 11 Q. And it's -- it's a regular crossing that 12 the trains go up and down it going places regularly, 13 right? 14 A. Yes. 15 Q. You didn't see anything unusual there 16 like stop signs -- like a stop signal or an officer 17 directing traffic? 18 A. Not -- there was no -- I do not remember 19 any officer directing traffic. I know the signals 20 are there; the gates are there. 21 Q. And there's really no dispute you pulled 22 onto the tracks with the train coming. 23 A. I pulled on the tracks. I am not 24 disputing that I did pull on the tracks. But as I ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 45 1 said, I did not hear or notice any lights until I got 2 where I could see the little side light and noticed, 3 and by then the nose of the truck was sitting on the 4 first set of the tracks. 5 Q. If you know, do you know that the lights 6 are activated by trains coming? 7 A. Yes, sir. I didn't know how far. I live 8 in an area surrounded by tracks. 9 Q. In that area that's a pretty straight 10 track, isn't it, for a good distance? 11 A. Yes, sir. You can see fairly long 12 distances to the west and to the east. 13 MR. REILLY: That's all I have got, 14 Mr. Snyder. Thank you. 15 - - - 16 EXAMINATION 17 By The Examiner: 18 Q. Mr. Snyder, I will ask a few questions to 19 make sure I understood some of your earlier 20 statements. You said you were traveling north on 21 Philippi Road and that you approached the crossing, 22 you looked to the left. 23 A. My initial when I approach a track is 24 look to my right. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 46 1 Q. Oh, to look to your right, okay. 2 A. And as I stop, I look to my left. 3 Q. And you look to your left. 4 A. And then out of habit as I look back to 5 the right after the left and as I said, I usually 6 start to give the truck a little fuel to keep it from 7 rolling back. 8 Q. There is a slight grade as you approach 9 the crossing. 10 A. That's right. 11 Q. And you made a couple of comments 12 earlier. You said you had seen the rear of some box 13 cars or something. 14 A. Yes, sir. I looked to the west. I saw 15 the rear of box cars. I did not see an end. 16 Q. That would have been to your left? 17 A. Yes. 18 Q. West. You did not see a train 19 approaching; you saw the rear of a train. 20 A. I saw the rear of box cars. I did not 21 know which way it was moving. 22 Q. Okay. And then you mentioned a Swift 23 Transportation vehicle. 24 A. As I -- as I started to look back my ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 47 1 final time to my left, the Swift truck just went over 2 the tracks, and I lost sight of that box car and 3 that's habit, I started to give the truck fuel, moved 4 forward, and I started to look back to my right. As 5 the truck was moving forward, that's when I noticed 6 the lights had started flashing. 7 Q. And the train was approaching from which 8 direction? 9 A. The train would have been from my left. 10 Q. I see. 11 A. And I know now that it was coming from 12 the west to the east. 13 Q. So the train was coming from the 14 direction where the Swift Transportation -- train was 15 coming from the direction where you had just seen a 16 Swift Transportation vehicle cross, so the Swift 17 Transportation was off to your left, and you had box 18 cars you had saw were off to your left as well. 19 A. Yes, sir. 20 Q. I see. And that the only point where you 21 noticed that the lights had been activated was when 22 you actually committed to go on forward, you had 23 given the vehicle additional fuel, and then you 24 noticed, I guess, a small portion of the crossing ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 48 1 lights; you could see that. 2 A. Yes, sir. 3 Q. I see. All right. And you feel you did 4 stop before you approached the crossing, looked both 5 directions multiple times. 6 A. Yes, sir. 7 THE EXAMINER: Okay. Thank you. 8 Mr. Reilly, do you have any further 9 questions? 10 MR. REILLY: We have nothing further. 11 THE EXAMINER: Mr. Margard? 12 MR. MARGARD: No, your Honor. 13 THE EXAMINER: Okay. I have no further 14 questions either, Mr. Snyder. Thank you for 15 attending today. I am sure that wasn't easy. 16 Mr. Reilly and Mr. Snyder, filing of 17 briefs. 18 MR. REILLY: Your Honor, if I could, you 19 know, I think we would like to make a brief 20 statement, but I don't think there are any serious 21 disputes of fact here. 22 THE EXAMINER: Sure. 23 MR. REILLY: I think it's pretty clear. 24 We would like to sort of sum up, but if we can do ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 49 1 that, then Staff would be willing to waive briefs. 2 THE EXAMINER: You could do that here if 3 you wish. 4 MR. REILLY: Yes, we would like to. 5 THE EXAMINER: Mr. Snyder, if you could 6 take your seat as well and you will have an 7 opportunity to summarize things too if you wish. 8 MR. REILLY: Thank you, your Honor. 9 We're here about fines, civil forfeiture, of $50. 10 Whatever any other governmental agencies do because 11 of the events that transpired in this incident are 12 not a matter for this tribunal. We're here about a 13 fine of $50. The citation was cited for what is -- 14 for a violation that as I've listened to the 15 testimony, as you listened to the testimony, the 16 facts are essentially uncontested. 17 Mr. Snyder pulled onto the railroad 18 tracks at Philippi Road with a train coming and about 19 that there is no question. The lights were activated 20 showing the train was coming. The testimony of 21 Mr. Haskins who was also there saw the train coming 22 when he pulled onto Philippi Road. There is no 23 question that there was a train coming when he pulled 24 onto Philippi -- when he pulled onto the railroad ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 50 1 tracks at Philippi Road, none at all. 2 The regulation in question does not limit 3 its applicability or does not limit its requirements 4 to the driver stopping. The driver has got to stop. 5 He's got to ascertain whether a train is coming, and 6 he has got to be right because he can't pull onto the 7 tracks unless it is safe to do so. You have got a 8 train closing at 35 miles an hour. It will be there 9 in a matter of seconds. Lights go off, he's got 10 seconds to get a tanker truck across the tracks. 11 That's not safe. 12 Mr. Haskins testified it's not safe. 13 Mr. Snyder did not contest it to his credit. It 14 clearly was not. There's no dispute on this. There 15 are three things that have to happen at a railroad 16 crossing. Stop, have to ascertain a train is not 17 coming, and be right, and can only pull onto the 18 tracks if it is safe. At least two of those things 19 being right, about a train not coming and only 20 pulling onto the tracks if it's safe, did not occur 21 here under any rendition of the facts. 22 There is really no question that the rule 23 was violated and there is no objection to the fine. 24 We think the case is clear and the civil forfeiture ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 51 1 proposed by the Staff should be upheld, the violation 2 should be upheld, and the civil forfeiture proposed 3 by Staff should be upheld. 4 THE EXAMINER: Thank you. 5 Mr. Snyder, any final remarks you would 6 like beyond what you have already said? 7 MR. SNYDER: No, sir. I guess I admitted 8 and I have always admitted. I never argued that I 9 was fighting the fine. I just wanted to plead my 10 case, sir. 11 THE EXAMINER: Okay. Thank you. Thank 12 you for taking the time to do so. 13 I believe there are no other matters to 14 come before us today, so with that we will consider 15 this hearing adjourned. 16 (Thereupon, the hearing was concluded at 17 11:04 a.m.) 18 - - - 19 20 21 22 23 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 52 1 CERTIFICATE 2 I do hereby certify that the foregoing is 3 a true and correct transcript of the proceedings 4 taken by me in this matter on Thursday, June 5, 2008, 5 and carefully compared with my original stenographic 6 notes. 7 8 _______________________________ Karen Sue Gibson, Registered 9 Merit Reporter. 10 (KSG-4909) 11 - - - 12 13 14 15 16 17 18 19 20 21 22 23 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481