before the public utilities commission of the state of … · 2018. 5. 21. · 8. assignment of...
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213478755 - 1 – Dbp 5/7 1:45
ALJ/ZK1/jt2 PROPOSED DECISION Agenda ID #____ Ratesetting BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
Application of the California High-Speed Rail Authority for Approval to Construct Two New Grade Separated Crossings Over the Proposed High-Speed Rail Tracks Operated by California High-Speed Rail Authority at Elkhorn Avenue (MP 210.2) and Fowler Avenue (MP 210.7) Located in the County of Fresno, State of California.
Application 17-09-017
DECISION GRANTING AUTHORIZATION TO THE CALIFORNIA HIGH-SPEED
RAIL AUTHORITY TO CONSTRUCT GRADE-SEPARATED RAILROAD CROSSINGS AT ELKHORN AVENUE (MP 210.2) AND FOWLER AVENUE (MP 210.7) IN FRESNO COUNTY
Summary
Pursuant to Public Utilities Code Sections 1201 and 1202 and the California
Public Utilities Commission (Commission) Rules of Practice and Procedure
Rule 3.7, we grant the California High-Speed Rail Authority authorization to
construct two grade-separated railroad crossings in Fresno County. The crossing
at Elkhorn Avenue, California High-Speed Rail Train System (CHSRTS), Sierra
Subdivision milepost (MP) 210.18, will be identified as Commission Crossing
Number (No.) 135S-210.18-A. The crossing at Fowler Avenue, CHSRTS Sierra
Subdivision MP 210.73, will be identified as Commission Crossing
No. 135S-210.73-A. This proceeding is closed.
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1. Factual Background
The California High-Speed Rail Authority (CHSRA or Applicant) requests
authority to construct two grade-separated railroad crossings, at California
High-Speed Train Rail System (CHSTRS) Sierra Subdivision mileposts
(MP) 210.18 and 210.7. To construct the railroad crossing at CHSTRS Sierra
Division MP 210.18, the County of Fresno plans to modify a section of Elkhorn
Avenue from an at-grade roadway to an overpass, while CHSRA proposes to
install at-grade mainline railroad tracks. Similarly, to construct the railroad
crossing at CHSTRS MP 210.73, the County of Fresno proposes to modify a
section of Fowler Avenue from an at-grade roadway to an overpass while
CHSRA plans to install at-grade mainline railroad tracks. The CHSRA and the
County of Fresno plan to complete construction of the two grade-separated
railroad crossings under the California High-Speed Train Project Cooperative
Agreement: Fresno County.
The two proposed railroad crossings are part of the CHSTRS, which will
connect San Francisco, Sacramento, Los Angeles, Anaheim and San Diego. The
proposed railroad crossings are a small portion of the CHSRA’s Construction
Package 2-3 (CP 2-3), a subset of the CHSTRS located in Fresno, Kings and Tulare
Counties.1 CP 2-3 includes 36 grade separations.2
No current rail operations exist in the immediate vicinity of the Project.
However, the CHSTRS is coincident with the Burlington Northern Santa Fe
Railway Company tracks for a portion of the area encompassed by CP 2-3.
1 Application at 3.
2 Application at 3.
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2. Procedural Background
CHSRA filed its Application on September 22, 2017. On October 26, 2017,
the California Public Utilities Commission (Commission) Safety and
Enforcement Division, Rail Crossings and Engineering Branch (SED) provided a
response to the Application. No parties protested the Application.
On October 31, 2017, the assigned Administrative Law Judge (ALJ) issued
a ruling setting a prehearing conference (PHC). At the November 27, 2017 PHC;
the Applicant, SED, Dragados Flatiron Joint Venture, the County of Fresno and
the assigned ALJ discussed the issues presented by the Application, the schedule
and other relevant procedural matters. Only the Applicant and SED are parties
to the proceeding.
On November 30, 2017, the assigned Commissioner issued a Scoping
Memorandum and Ruling (Scoping Memo). On February 14, 2018, the assigned
ALJ issued a ruling requiring parties to meet and confer and file a joint statement
providing additional information (February Ruling). On March 5, 2018, the
assigned ALJ granted CHSRA’s March 2 request for a 30-day extension to file a
response to the February Ruling by e-mail ruling. On March 12, 208, the
assigned ALJ issued a ruling amending the February Ruling to require separate
party responses to the additional information requested (March Ruling). On
April 16, 2018, CHSRA and SED filed a response to the March Ruling.
The Commission has jurisdiction over this Application under Public
Utilities (Pub. Util.) Code Sections 1201 and 1202, and Rule 3.7.3
3 California Code of Regulations, Title 20, Division 1, Chapter 1; hereinafter, Rule or Rules.
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3. Environmental Review and CEQA Compliance
The Fresno to Bakersfield Section of the California High-Speed Train
Project (Fresno-Bakersfield CHST Project) constitutes a project under the
California Environmental Quality Act of 1970 (CEQA) and the National
Environmental Policy Act (NEPA). (Cal. Pub. Resources Code § 21000 et seq.;
42 U.S.C. 4371 et seq.) Under CEQA, the lead agency is either the public agency
that carries out the project, or has the greatest responsibility for supervising or
approving a project, which may have a significant impact on the environment.
(14 Cal. Code Regs. §§ 15050 and 15051.) CHSRA is the lead agency under CEQA
and the Federal Railroad Administration (FRA) is the lead agency under NEPA
for the purposes of identifying environmental impacts from the
Fresno-Bakersfield CHST Project.
CHSRA and the FRA jointly prepared the Final Environmental Impact
Report/Environmental Impact Statement for the Fresno to Bakersfield Section of the
California High-Speed Train Project (Final EIR/EIS), dated April 2014. FRA
reviewed the Final EIR/EIS under NEPA and filed a Notice of Determination
(NOD), which was certified on May 7, 2014. FRA also issued a Record of
Decision on June 27, 2014. Subsequently, the project design of the East Elkhorn
Overcrossing was elongated by 220 feet and the South Fowler Overcrossing was
realigned to the existing alignment of South Fowler Avenue; the alterations did
not require a change under CEQA or NEPA and no supplemental EIS or EIR was
prepared.4
A responsible agency under CEQA “includes all public agencies other than
the lead agency which have discretionary approval power over the project.”
4 CHSRA, Response to Administrative Law Judge Inquiry at 3-4.
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(14 Cal. Code Regs. § 15381.) Since the Commission has the exclusive authority
to approve railroad crossings pursuant to Pub. Util. Code § 1202 and must issue
a discretionary decision in order for the project to proceed, the Commission is a
responsible agency under CEQA.5
As a responsible agency, the Commission must consider the
environmental effects identified in the Final EIR/EIS relating to the portion of
the project that is before the Commission for approval. (14 Cal. Code Regs.
§ 15096(f).) The Commission has authority to mitigate or avoid only the direct
and indirect environmental effects of those parts of the project which it is called
on to carry out or approve. (14 Cal. Code Regs. §§ 15042 and 15096(g).)
The Commission must adopt any mitigation measures within the
Commission’s jurisdiction that avoid or mitigate the part of the project the
Commission approves (14 Cal. Code Regs. §§ 15091(a)(2) and 15096(g)(1).);
unless the changes or alterations are infeasible for specific economic, legal, social,
technological, or other considerations. (14 Cal. Code Regs. § 15096(g)(2).) The
Commission must balance any unavoidable impacts against specific economic,
legal, social, technical or other benefits. (14 Cal. Code Regs. § 15096(h).) Finally,
the Commission must file a NOD with the CEQA Clearinghouse certifying that
the Commission has considered the environmental document. (14 Cal. Code
Regs. § 15096(i).)
The Final EIR/EIS found significant environmental impacts due to the
Bakersfield-Fresno CHST Project which could be mitigated, with some impacts
5 The Commission is not required to review the project under NEPA because it is not a lead or a cooperating agency within the meaning of Title 14 Cal. Code Regs. §§ 1501.5-1501.6. (14 Cal. Code Regs. §§ 1501.5-1501.6.)
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mitigated to below significant environmental impact. Significant environmental
impacts from the Bakersfield-Fresno CHST Project which could not be mitigated
to below significant include the following: 1) noise effects; 2) adverse effects on
socioeconomics and communities; 3) environmental justice; 4) station planning,
land use, and development; 5) agricultural lands; 6) parks, recreation, and open
space; and 7) aesthetics and visual quality.6
The Commission reviewed and considered the Final EIR/EIS as these
documents relate to the two proposed railroad crossings. The Commission
adopts the mitigation measures detailed in the Final EIR/EIS which apply to the
roadway crossings specifically7 and for the entire project.8 No significant
environmental impacts in the Final EIR/EIS are directly associated with the
proposed, grade-separated railroad crossings. The Commission’s Energy
Division will file a NOD with the CEQA clearinghouse stating that the
Commission considered the environmental documents related to the proposed
railroad crossings.
4. Filing, Safety and Engineering Requirements
Applications for the construction of public roads across railroads must
meet the requirement of Rule 3.7 as well as the minimum clearance requirements
of General Order (GO) 26-D.
6 Final EIR/EIS at 6-1 to 6-3.
7 Final EIR/EIS at 3.19-7 to 3.19-9.
8 CHSRA, Resolution # HSRA 14-10, Attachment B, Mitigation Monitoring and Reporting Program for the certified FEIR/EIS.
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SED’s response stated that SED staff participated in a diagnostic meeting
regarding the proposed crossing locations on May 4, 2017.9 SED’s independent
review of the Application found that the proposed railroad crossings met the
requirements of Rule 3.7 and GO 26-D.10
Upon review, the Commission finds the CHSRA provided materials in its
Application and its Response to ALJ Inquiry, dated April 16, 2018, sufficient to
satisfy Rule 3.7 and GO 26-D requirements for the proposed railroad crossing, as
detailed in Appendix A.
5. Request for 72-Month Authority to Construct
CHSRA requests authority to complete the two proposed railroad
crossings within 72 months, or six years, “due to the complexity, size and unique
nature of the CP 2-3 Project.”11 As grade-separated railroad crossings, CHSRA
also argues that the “crossing configurations are well defined and not subject to
the variability common for at-grade crossings.”12
The Commission finds CHSRA’s request reasonable. Accordingly, the
Commission approves CHSRA’s request construct the proposed rail crossings
within 72 months of the date of this Decision.
9 Response of the Safety and Enforcement Division to Application of the California High-Speed Rail Authority to Construct Two Proposed High-Speed Rail Tracks and Overpass Grade Separations at Elkhorn Avenue (MP 210.20) and Fowler Avenue (MP 210.70) in the County of Fresno, State of California (Oct. 26, 2017), Attachment A at 1.
10 Response to ALJ Inquiry of the Safety and Enforcement Division (Apr. 16, 2018) at 2-4.
11 Application at 6.
12 Id.
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6. Conclusion
The Application conforms to our rules for granting authority to construct
railroads across public roads, highways or streets. Accordingly, we grant
CHSRA the authority to construct new grade-separated railroad crossings at
CHSTRS Sierra Subdivision MPs 210.18 and 210.73, in the County of Fresno,
subject to compliance with the terms and conditions set forth in the Ordering
Paragraphs.
7. Waiver of Comment Period
This is an uncontested matter in which the decision grants the relief
requested. Accordingly, pursuant to Section 311(g)(2) of the Public Utilities Code
and Rule 14.6(c)(2), the otherwise applicable 30-day period for public review and
comment is waived.
8. Assignment of Proceeding
Michael Picker is the assigned Commissioner and Zita Kline is the
assigned ALJ in this proceeding.
Findings of Fact
1. The proposed railroad crossings meet the requirements of Rule 3.7.
2. The proposed railroad crossings meet the requirements of GO 26-D.
3. With mitigation agreed to by Applicant, a number of environmental
impacts related to the proposed railroad crossing will be mitigated to less than
significant.
4. Environmental impacts which cannot be mitigated to less than significant,
as described in the Final EIR/EIS, do not directly or indirectly impact the
proposed railroad crossings.
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Conclusions of Law
1. The Commission reviewed and considered the environmental compliance
documents submitted by the CHSRA, including the Final EIR/EIS, and made
findings on each significant impact directly or indirectly related to the two
proposed railroad crossings.
2. CHSRA’s request for Commission authorization to construct the railroad
crossing within 72 months is reasonable.
3. The application should be granted.
O R D E R
IT IS ORDERED that:
1. The California High-Speed Rail Authority is authorized to construct the
proposed railroad crossings at California High-Speed Train Rail System, Sierra
Subdivision mileposts 210.18 and 210.73, in the County of Fresno.
2. The railroad crossing at California High-Speed Train Rail System Sierra
Subdivision milepost 210.18 shall be identified as California Public Utilities
Commission Crossing Number 135S-210.18-A (United States Department of
Transportation Crossing Number 973172U).
3. The railroad crossing at California High-Speed Train Rail System Sierra
Subdivision milepost 210.73 shall be identified as California Public Utilities
Commission Crossing Number 135S-210.73-A (United States Department of
Transportation Crossing Number 973173B).
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4. The two grade-separated railroad crossings shall have the crossing
treatments and configuration specified in Appendix A.
5. The California High-Speed Rail Authority shall comply with all applicable
rules, including California Public Utilities Commission General Orders and the
California Manual on Uniform Traffic Control Devices.
6. The California High-Speed Rail Authority shall notify the California Public
Utilities Commission’s Rail Crossings and Engineering Branch of the Safety and
Enforcement Division at least 30 days prior to the opening of the crossings.
Notification should be made by email to [email protected].
7. Within 30 days after completion of the work authorized by this decision,
the California High Speed Rail Authority shall notify the California Public
Utilities Commission’s Safety and Enforcement Division, Rail Crossings and
Engineering Branch, that the authorized work is completed by submitting a
Standard Form G (Report of Changes at Highway Grade Crossings and
Separations). Form G requirements and forms can be obtained at the California
Public Utilities Commission website at http://www.cpuc.ca.gov/crossings. The
completed report may be submitted via e-mail to [email protected].
8. Within 30 days after completion of the work under this order, the
California High-Speed Rail Authority shall notify the Federal Railroad
Administration of the existence of the public, grade-separated, highway-rail
crossings by submitting United States Department of Transportation Crossing
Inventory Forms (FRA F6180.71). Concurrently, California High-Speed Rail
Authority shall provide a copy of the inventory forms to the California Public
Utilities Commission’s Safety and Enforcement Division, Rail Crossings and
Engineering Branch. Copies of this form may be submitted electronically to
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9. This authorization shall expire if not exercised within 72 months of the
issuance of this decision unless time is extended or if the above conditions are
not satisfied. The California Public Utilities Commission may revoke or modify
this authorization if public convenience, necessity, or safety so requires.
10. A request for extension of the 72-month authorization period must be
submitted to the California Public Utilities Commission’s Safety and
Enforcement Division, Rail Crossings and Engineering Branch at least 30 days
before the expiration of that period. A copy of the request must be sent to all
interested parties.
11. The application is granted as set forth above.
12. Application 17-09-017 is closed.
This order is effective today.
Dated , at San Francisco, California.
APPENDIX A
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Appendix A
SUMMARY OF FILING REQUIREMENTS
Rule 3.7.
1. Elkhorn Avenue Overcrossing
Rule
3.7(a) California High-Speed Rail Train Rail System, Sierra Subdivision, MP
210.18. The legal location is included in Attachment 1.
3.7(b) At-grade crossing at Conejo Avenue (Commission Crossing No. 002-
982.10/ DOT No. 028442L/ BNSF MP 982.1) to the north of the
crossing.
3.7(c) Not applicable.
3.7(d-f),
3.9 (c)
The required maps and figures are provided in the Application, see
Attachment 2.
2. Fowler Avenue Overcrossing
Rule
3.7(a) California High-Speed Rail Train Rail System, Sierra Subdivision, MP
210.73. The legal location is provided in Attachment 1.
3.7(b) At-grade crossing at Elkhorn Avenue and BNSF (Commission
Crossing No. 002-980.00/DOT No. 028439D/ BNSF MP 980) to the
west of the proposed crossing.
3.7(c) Not applicable.
3.7(d-f) Applicant provided the required maps and figures in the
Application, see Attachment 2.
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General Order (GO) 26-D
1. The proposed vertical clearance of 27 feet (‘) 5 inches (“) for both Elkhorn
and Fowler Avenue railroad crossings meets the GO-26 minimum
overhead clearance requirement of 22.6’. (GO 26-D § 2.1.)
2. The proposed side clearance of 35’ 1”and 33’ 6” from the centerline of the
track to the nearest obstruction for Elkhorn and Fowler Avenue railroad
crossings, respectively, meets the GO 26-D minimum side clearance
requirements of 8’ 6” from the centerline of the track closest to the
obstruction. (GO 26-D § 3.2)
3. The side clearance between parallel tracks of 16’ 6” for both proposed
railroad crossings is greater than the minimum clearance of 15‘. (GO 26-D
§ 5.2)
Appendix A
Attachment 1
LEGAL DESCRIPTION OF THE PROPOSED RAILROAD CROSSINGS
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Appendix A
Attachment 2
MAPS AND FIGURES OF PROPOSED RAILROAD CROSSINGS
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(End of Appendix A)