Response to Caltrans Attack on Coastal Commission and Revocation Request |
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 Dharma Cloud FoundationP.O. Box 37 Caspar, CA 95420 Tel:. 707 964-6456 Fax: 707 964-7520 June 21, 1999
Dear Mr. Douglas: I see from the contents of the letter sent to Steven Scholl by Mr. Anziano on June 16, 1999 that we share something in common – being attacked by Caltrans for doing our job. This type of response by Caltrans -- belligerent and antagonistic, rather than accommodating and cooperative -- exemplifies the attitude that Caltrans has exhibited toward all sincere efforts to work together to achieve better solutions. I hope that you will not dismiss it as "a standard practice" of Caltrans to which you have become inured through repetition, but reflect on how it magnifies the antagonistic quality of what ideally should be a cooperative process. This type of belligerent response is at the core of what I’m trying to change. Consider that most citizens have nowhere near the resources that the commission brings to reviews of Caltrans projects. When the Caltrans treats all efforts to bring about change as an attack on itself and responds antagonistically, what chance do citizens have to affect the outcome of a design process that vitally affects their community’s well-being? I see the upcoming revocation hearing as an opportunity for the commission to obtain and expose to public scrutiny much more information about the standard operating procedures followed by Caltrans in responding to citizen input. I fervently hope that you will recommend to the commission that it authorize the commission staff to pursue further investigation, including obtaining answers to the questions for Caltrans that I have submitted to the commission. The evidence that I provided in my Grounds for Revocation gives you ample basis for making such a recommendation. Thank you for referring my call to you on June 18 to Bob Merrill. He explained to me that you were planning to recommend that the Commission reject my request for revocation. In view of Caltrans’s failure to meet the commission’s deadline for making a written response to the contentions raised in my request, I am surprised at this decision. I understand that Mr. Anziano met with you and gave you various verbal arguments, some of which Mr. Merrill relayed to me this morning. Without anyone there to rebut his points, you apparently were influenced by them. I consider it irregular and improper that Caltrans can give the staff arguments verbally, rather than in writing as the commission requested. Verbal arguments are not part of the record. I’m thereby put into the position of having to try to answer something that Caltrans can later claim it never said. This may seem an unwarranted anxiety on my part, but based on Caltrans performance in this case to date, I believe it is highly warranted. However, if I don’t respond, Mr. Anziano’s contentions will go unanswered. These are not good choices, but given that these are the choices, I prefer to respond. To avoid this kind of situation in the future, I request that the commission consider only evidence presented in writing, or if Caltrans wishes to make an oral presentation to the staff, that I and/or my lawyer be given the opportunity to attend. I am glad to make the reciprocal offer. In the remainder of this letter, I will respond to Mr. Anziano’s contentions, as I understand them based on my conversation with Mr. Merrill. If there are inaccuracies in my understanding, please let me know and I will modify my responses accordingly. Mr. Anziano apparently made arguments and assertions in two important areas, each of which I will consider separately:
Contention: No alternative railings fully-approved by the federal government were available Apparently, Mr. Anziano attempted to create doubt that there were alternative railings that were fully accepted by the Federal Highway Administration (FHWA) in the fall of 1998, when the controversy arose over the solid concrete railing initially proposed by Caltrans. Please rest assured that there were many, many such railings available at that time. I’ve requested that Mr. Richard Powers of the FHWA send me the May 30, 1997 summary listing of railings accepted by the FHWA as meeting current crash-test standards. I will forward a copy to you for the record as soon as I have received it. Mr. Powers assures me that the listing contains a large number of railings. In my request for revocation, I provided documentation on several railings that had been issued acceptance letters by the FHWA. I understand that Mr. Anziano asserts that, in one case the acceptance letter was issued only two days before the permit hearing, making it unreasonable for me to term this an available approved railing, and in the other cases that the letters of acceptance were qualified. Let me respond. NETC railing availability First, note that with respect to the 2-Bar Curb-Mounted Railing of the New England Transportation Consortium (NETC), it was accepted by the FHWA in May, 1997, as noted in the acceptance letter included in Appendix 2 of my Grounds for Revocation. This 2-bar railing could serve as the traffic railing in the type of railing system that I proposed as an alternative in my testimony at the permit hearing. Thus, there is no question about the availability and relevance of this railing. With respect to the 4-bar railing of the NETC, I explicitly noted in my Grounds for Revocation that the acceptance letter, which was reproduced therein, was issued on March 11, 1999; thus I was not trying to hide this fact from the commission. However, as I also noted:
Because, as I explain later in this letter, the bridge railing would not have had to be available for installation until the end of 1999, I considered and continue to consider the NETC railing as a legitimate alternative that should have been presented by Caltrans to the commission. After Mr. Merrill told me that Mr. Anziano objected to inclusion of the NETC railing as an alternative, I checked with Mr. Richard Powers of the FHWA to see why the railing took more than a year to approve, a delay that might suggest problems with the railing. Upon further checking, he found that the submission date of January 25, 1998 written in the acceptance letter was in error. The correct date is January 25, 1999. This new information led to the following questions: 1) Why did more than a year elapse between crash tests and the request for acceptance, and 2) would Caltrans have been informed of this railing if it had inquired of the FHWA in Fall 1998 of railings approved or about to be approved? Mr. Powers referred me to Charles McDivitt, a Structural Engineer in the Office of Safety, Research, and Development of the FHWA. He was the contracting officer’s technical reference for the NETC railing crash testing, and he explained the reasons for the long delay after the crash tests were performed. The essence of his explanation was that Southwest Research Institute, which performed the tests, was very tardy in preparing the final report, in part because the chief investigator left the organization and in part because of technical problems that were time consuming to resolve. There were not problems with the railing, only with getting the necessary test data prepared for submission to the FHWA. Obviously, because Mr. McDivitt was closely involved in this process throughout 1998, Caltrans would have been informed about the status of the NETC railing if it had asked within the FHWA in Fall 1998 of railings approved or about to be approved. Other referenced railings I understand that Mr. Anziano asserted or implied that the other referenced railings were not fully accepted by the FHWA. This is incorrect. As shown in the letters included in Appendix 2 of my Grounds for Revocation, the Massachusetts and Wyoming railings referenced were fully accepted. The letter of acceptance for the Wyoming railing, dated July 1, 1996, expressed a desire to see some minor design features changed (such as the configuration of the end plate and the use of a brace bar for shipping), but it did not condition its acceptance on these changes being made (which in any event could be easily done). It also expressed a concern that Wyoming use a steel that would not be subject to brittle fracture at extremely low temperatures – obviously not a problem on the coast of northern California. I want to emphasize that the TL-3 version of this railing has been in widespread use in Wyoming for at least 21 years. It is a time-tested design. I emphasize this because this is the railing type that I would have used in the alternative design I proposed in my testimony at the commission hearing on the Noyo Bridge permit, had Caltrans provided information on its availability. However, I relied, as did the commission staff on the unequivocal, unqualified assertions of Caltrans that no other approved railings were available; therefore I proposed use of an unspecified "safety barrier." As we all know now, there were many approved traffic railings that could have been used. Because this type of railing system (traffic railing combined with pedestrian railing) is well known within Caltrans, the Caltrans project staff could have told the commission that this was an acceptable alternative – rather than maintaining to the commission staff, as I document in my Grounds for Revocation, that "the ‘see-through’ barrier incorporated in the project is the only one currently approved." The other referenced railing, the Massachusetts S3-TL-4 Steel Bridge Railing, flush-mounted design, was fully accepted for use on sidewalks of any width. This is the configuration that would be appropriate for the Noyo Bridge. Other discussion in the acceptance letter referred to testing of a curb-mounted design; but this is not relevant to the Noyo Bridge. Summary No points raised by Mr. Anziano detract in any degree from the validity of my contention that at the time Caltrans was denying their existence, there were a number of federally approved railings. Contention: Knowledge of alternative railings would not have affected the commission’s decision As I understand Mr. Anziano’s argument, even had Caltrans presented the commission with alternative, federally safety-approved railings, it would have argued to the commission that incorporating any of these into the Noyo Bridge would have entailed unacceptable delays. Therefore, even though they may have omitted information on alternative, federally safety-approved railings, this omission would have not caused the commission to reach a different decision or impose different conditions. My understanding is that Mr. Anziano gave the following reasons why the other alternative railings would have entailed unacceptable delays:
Question One: Do California crash-test standards differ from federal standards? The first reason given by Mr. Anziano is that federally approved railings would still require time-consuming additional testing to meet state safety standards. As I documented in my request for revocation, Eldon Davisson, who is Chief or the Office of Structural Design, under whom is conducted all bridge design and state crash testing, told me that California will structurally accept a railing that is accepted by the FHWA. Before you accept a different position from Caltrans, I would think you should require a statement from Mr. Davisson contradicting my citation of him. To my knowledge, Caltrans has not provided you with such a statement, which it could easily have done by now. But, even beyond the statement made by Mr. Davisson, I am highly skeptical that there is any significant difference in federal and state crash-test procedures and standards because the crash-test procedures required for federal acceptance of a railing are extremely detailed, complex, and expensive to conduct. The crash-test procedures required for federal acceptance are specified in NCHRP Report 350. For example, to achieve acceptance by the FHWA as a Test Level 4 (TL-4) railing, the railing must be subjected to a crash tests for 1) a small sedan, 2) a pickup truck, and 3) an 18,000 lb. single-unit van truck. Each of these vehicles must meet specified measurements for center-of-gravity above the ground and distance between wheels. Each of these vehicles must be crashed into the test railing at a specified angle and rate of speed. Detailed acceleration, deceleration, and visual data must be recorded. Given the difficulty and expense of conducting the federal tests, and their very high standards for safety, I have great difficulty in believing that California conducts additional, more demanding crash tests. But, whether I am correct or not is easily resolved by asking Caltrans to provide the commission with copies of its written manuals specifying safety standards that it applies to bridge railings. You should also ask Caltrans to identify specific differences between Caltrans standards and the NCHRP Report 350 standards used by the Federal Highway Administration in certifying railing designs. I want to stress the importance of getting Caltrans to provide copies of its approved specifications, not simply a general description of its standards. The purpose of this proceeding is to determine whether the commission can rely upon statements from Caltrans personnel; therefore it is of the highest importance to require that Caltrans provide detailed documentation of any claims that it makes. Question Two: Would Caltrans policy on concrete railings have precluded the commission’s decision from being influenced by knowledge that alternative, safety-approved railings existed? The second reason given by Mr. Anziano is that current Caltrans policy is to standardize on concrete railings and that changing this policy would take so long that alternative metal railings could not be used on a "time-urgent seismic-safety" project. When I first heard this argument, I didn’t know whether to laugh or cry -- laugh because it is so patently ridiculous a reason for ruling out a railing that would preserve the highly scenic views from the Noyo Bridge, or cry out in frustration because Caltrans once again is citing its internal requirements as justification for rejecting an alternative that it can find no substantive reason to reject. The first point I want to emphasize is that this argument is a perfect example of how Caltrans has responded whenever I’ve refuted one of its "reasons" for rejecting an alternative. It brings up another "reason," then another reason, until when all else fails, it cites "Caltrans requirements." You and the commission should be absolutely clear that during the permit process the only reason that Caltrans cited for not using a better see-through railing was that there were no other safety-approved railings. If Caltrans had other substantive reasons why it couldn’t use alternative railings, it would certainly have cited them. But, it cited no other reason. Rick Knapp said in a letter to the mayor of Fort Bragg, "At that [September 16, 1998] meeting, Caltrans committed to include a see-through railing design if we could get an approved, safety-tested design before construction of the project." Note well the underlined phrase. The only qualification Mr. Knapp made was "an approved, safety-tested design." Karen Tatman, Project Manager for the Noyo Bridge, responding to a citizen complaint about the obliteration of views by the solid concrete railing initially proposed for the Noyo Bridge, wrote:
Again, I want you to note that the only cited requirement for use on the project was passing "the required safety crash tests." Now that I have shown that there are a number of alternative, superior see-through railings that have "passed the required safety crash tests," Caltrans is falling back to its last line of defense: "They don’t meet Caltrans requirements." In this instance, the "requirement" is that the railings must be concrete in order to minimize maintenance costs. Given Caltrans very tardy assertion of this tired class of excuse, I would think the commission staff would attach little weight to it. But, since you appear to be taking it seriously, you should ask Caltrans some questions whose answers will help to inform the commission about this supposed insurmountable barrier to metal railings. The concrete-only railing excuse can be broken down into two parts, both of which must be true if it is to stand as a reason for rejecting all metal railings: 1) current Caltrans policy is that only concrete railings are acceptable to it, and 2) changing this policy would take so long that alternative metal railings could not be used on a "time-urgent seismic-safety" project. Consider each of these in turn. Only concrete railings are acceptable to Caltrans First, it is worth noting that the railing proposed by Caltrans has a metal top rail and numerous vertical bars in the 11" horizontal opening. Thus, Caltrans is currently willing to accept "some" metal components on bridge railings. Second, the Caltrans Redwood Creek Bridge, which I cited in revocation request, has a pedestrian railing that is entirely metal. The engineering drawings supplied to me are dated December 15, 1986 – only 2-1/2 years ago. Thus, if Caltrans has a policy against metal railings, it is less than 2-1/2 years old. Caltrans should be asked to respond to the following:
The requested answers and information will let the commission know exactly what is the regulation being cited as preventing the use of metal railings, how long the policy has been in place, and how strictly it has been enforced. If the responses show that the policy does not exclude all use of metal railings, the concrete-only excuse would not have been a valid reason for Caltrans to reject the alternative see-through railings. Further, the responses will be relevant to determining the validity of the second part of the concrete-only railing excuse. The time required to change the concrete-only railing policy would be unacceptably long If the staff is to determine that knowledge of alternative see-through railings wouldn’t have affected its decision, it needs to accept Mr. Anziano’s assertion that changing this policy would have taken and "unacceptably long time." The first point is that accepting a metal railing on the Noyo Bridge would not require a change in overall policy. As I noted in my oral testimony at the March hearing:
In the context of this hearing, where the staff report stated that Caltrans said it would take 2-4 years to develop and test an alternative railing, the ability of Caltrans to make exceptions to its design standards did not persuade a majority of the commission to deny the permit. However, even in this circumstance, the vote for the permit was only 5 to 4. Suppose instead that the commission knew of the alternative railings and that the issue had come down solely to whether or not Caltrans was willing to make an exception to its concrete-only railing policy. Mr. Douglas, are you certain in your own mind that in this circumstance the commission would have made the same decisions? Are you certain enough to recommend to the commission that it reject, without further investigation, my request for revocation? I would like to receive your answers to these questions. How much time is available to Caltrans to fully qualify a railing for the Noyo Bridge? In judging the merits of Mr. Anziano’s contention that delays in approval of federally approved railings for the Noyo Bridge would have taken "too long" given that the bridge replacement is a seismic-safety project, the staff and commission should recognize that the railing would not have been needed for quite some time. Even on the accelerated bidding schedule proposed by Caltrans in testimony submitted to the commission, a contractor was not expected to begin work until August 1, 1999. Then, according to Caltrans:
Thus, even under the most optimistic schedule Caltrans could imagine, construction of the new bridge sections could not begin until the phase of work described above were completed, presumably in March 2000. The railings would not have been needed prior to that time. As the alternative railings are already in use in other parts of the country, the railing components should be readily obtainable. At a minimum, therefore, Caltrans would have had until January 2000 to make whatever qualifications, policy changes, and exceptions were required to utilize the superior railing alternatives. Not every aspect of the alternative railings would have needed to be resolved at the time of the permit hearing. Delays in the Noyo Bridge not "unacceptable" to Caltrans Throughout the permit process Caltrans emphasized that the Noyo Bridge project was an important seismic safety project and that any delays in the project were unacceptable. Mr. Anziano rang the same tocsin in his June 16, 1999 letter to Steven Scholl, chastising the commission’s actions on "a very delicate matter pertaining to a significant safety project." From the statements coming forth from Caltrans, one would think that it would do everything in its power to move the project ahead as fast as possible. Its actions however, show that the vital necessity of replacing the bridge "as quickly as possible" disappeared once it had its Coastal Commission in hand. Following the imposition of the $1 million mitigation fee by the commission, Caltrans undertook an internal review that was not completed until April 16, 1999. The self-imposed delay meant that Caltrans could not meet the tight schedule that it had proposed to the commission for completing in-water construction by October 15, 1999. In announcing the outcome of its review, Caltrans stated, "… it is not likely that significant work will be accomplished this year." Because of the conditions of its permits, the delay caused by Caltrans meant that work on the Noyo Bridge could not begin until June 2000. Caltrans may rejoin that the delay in seeking funding approval was caused by the lack of a permit from the Regional Water Quality Control Board, North Coast Region, rather than by its internal review. This would be disingenuous, because without obtaining this permit, Caltrans did apply for and receive funding approval at the June 7-8 meeting of the California Transportation Commission. In Conclusion Upon analysis, none of the assertions or arguments made verbally by Mr. Anziano have any validity. The information I have provided herein should persuade you to recommend to the commission that they authorize you to further investigate my contentions and to request answers from Caltrans to the questions that I have provided to the commission. Sincerely,
Vince Taylor |