Summary - California

?ALJ/PD1/gp2Date of Issuance: 7/1/2020Decision 20-06-036 June 25, 2020BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIAApplication of the California High-Speed Rail Authority to construct proposed high-speed tracks (HST) and rail-rail grade separation (135S-280.4-T) over BNSF’s existing main line track (MP 911.5) at Wasco Avenue in Kern County, CaliforniaApplication 19-08-010DECISION GRANTING THE APPLICATION OF THE CALIFORNIA HIGH-SPEED RAIL AUTHORITY TO CONSTRUCT HIGH-SPEED TRACKS AND RAIL-RAIL GRADE SEPARATION IN KERN COUNTYSummaryPursuant to Public Utilities Code §§ 1201 and 1202 and Rule 3.10 of the California Public Utilities Commission Rules of Practice and Procedure, this decision grants the application of the California High-Speed Rail Authority to construct proposed high-speed tracks and a rail-rail grade separation over an existing main line track at Wasco Avenue in Kern County, California. This proceeding is closed.BackgroundThe California High-Speed Rail Authority (CHSRA or applicant) requests authority to construct proposed high-speed tracks and a rail-rail grade separation over an existing main line track at Wasco Avenue in Kern County, California, as part of the proposed California High-Speed Train System (CHSTS). The proposed crossing will conform to CHSRA and Commission standards. On August 22, 2019, CHSRA filed this application with the Commission requesting authority to construct proposed high-speed tracks (HST) and rail-rail grade separation over an existing main line track operated by BNSF at Wasco Avenue in Kern County, California. On September 26, 2019, the Commission’s Rail Safety Division (RSD) filed a response to the application (RSD Response). RSD evaluates the safety of all requested rail crossings. Based on RSD’s review of the application and site visits to the proposed crossings, RSD reports that the application conforms with the Commission’s Rules of Practice and Procedure and with the safety and engineering requirements of General Order (GO) 26-D. RSD found no safety or other issues with the application and does not object to the application.On September 12, 2019, the Commission issued Resolution ALJ 176-3445, which preliminarily categorized this proceeding as ratesetting, and preliminarily determined that evidentiary hearings would be required. On December 5, 2019, a prehearing conference (PHC) was held at which the applicant and RSD, the only parties to the proceeding, participated. On January 8, 2020, the assigned Commissioner issued a Scoping Memo and Ruling (Scoping Memo) outlining the scope and schedule for the proceeding. The Scoping Memo confirmed the preliminary categorization of this proceeding in Resolution ALJ 176-3445 as ratesetting. As the assigned Commissioner found in the Scoping Memo that evidentiary hearings would not be required because there were no factual issues in dispute, this decision also confirms the finding that evidentiary hearings are not needed. The proceeding was deemed submitted upon the issuance of the Scoping Memo.Jurisdiction The Commission has jurisdiction over railroad crossings pursuant to California Public Utilities Code §§ 1201 and 1202. Commission GO 26-D prescribes the minimum clearance requirements for all construction of tracks or structures adjacent to tracks. Rule 3.10 provides rules for constructing rail-rail crossings.Issues Before the CommissionThe issues to be determined are:Whether the application meets all of the Commission’s requirements, including Rule 3.10, such that the Commission should grant the CHSRA’s application to construct a rail-rail grade separated crossing over the existing railroad tracks at Wasco Avenue.Whether the application poses any safety concerns, and if so, whether the applicant has measures in place to adequately address those concerns.Whether the California Environmental Quality Act (CEQA) documents submitted with the application are sufficient to satisfy the Commission’s environmental review of the project in its role as a responsible agency.Whether the Commission should grant the applicant a period of three years from the application approval date to complete the proposed project.Project Description The proposed crossing in this proceeding concerns a new aerial structure that will carry the proposed California High-Speed Rail System tracks, milepost?280.40, over the existing BNSF Railway Bakersfield Subdivision tracks, milepost 911.50, at Wasco Avenue in Kern County. This aerial structure is known as the Wasco Viaduct aerial structure. The segment of Wasco Avenue through which the viaduct passes will be permanently closed once construction of the structure foundation begins. CHSRA proposes to construct the crossing as part of Construction Package 4 of the Fresno to Bakersfield Section of the California High-Speed Train Project.The applicant worked closely with RSD throughout the application process. RSD conducted a diagnostic review and site visit on April 10, 2018, and reports to the Commission that the application conforms to the requirements of the Commission’s Rules and General Orders and all crossing-related issues have been resolved.California Environmental Quality ActCEQA applies to discretionary projects to be carried out or approved by public agencies. A basic purpose of CEQA is to inform government decision-makers and the public about potential, significant environmental effects of the proposed activities. Since the project is subject to CEQA and the Commission must issue a discretionary decision for the project to proceed, the Commission must consider the environmental consequences of the project by acting either as a lead or responsible agency under CEQA. The lead agency is either the public agency that carries out the project, or the one with the greatest responsibility for supervising or approving the project as a whole. Here, the CHSRA is the lead agency for this project under CEQA because it intends to construct the proposed crossing. The Commission is a responsible agency because it has jurisdiction to issue a permit for the construction of the proposed crossing. As a responsible agency under CEQA the Commission must consider the lead agency’s environmental documents and findings before acting on or approving the project. Also, as a responsible agency, the Commission is responsible for mitigating or avoiding only the direct or indirect environmental effects of those parts of the project which it decides to carry out, finance or approve.The subject of this proceeding, the construction of proposed high-speed tracks and a rail-rail grade separation over the BNSF Railway’s existing mainline tracks (MP 911.5) at Wasco Avenue in Kern County, constitutes a project under CEQA. A basic purpose of CEQA is to inform governmental decision-makers and the public about potential significant environmental effects.The CHSRA, in conjunction with the Federal Railroad Administration prepared a Draft Environmental Impact Report/Draft Environmental Impact Statement in 2011 and a revised draft in 2012. After public review and comment this document was released as a Final Environmental Impact Report/Final Environmental Impact Statement (FEIR/FEIS) in 2014. The Notice of Determination (NOD) was filed May 7, 2014 and the Record of Decision (ROD) was dated June 27, 2014. (State Clearing House Number: 2009091125).As a responsible agency the Commission must consider the environmental effects identified in the FEIR/FEIS relating to the portion of the project that is before the Commission for approval.? The Commission has the 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.? The Commission must adopt any mitigation measures within the Commission’s jurisdiction that avoid or mitigate the part of the project that the Commission approves, unless the changes or alterations are infeasible for specific, economic, legal, social, technical and other benefits.? The Commission must file an NOD with the State Clearing House certifying that the Commission has considered the environmental document.The environmental document prepared for this project, the FEIR/FEIS, considered numerous categories of possible impacts.? These included: transportation; air quality; noise and vibration; biology; hydrology; geology; hazardous materials; agricultural lands; aesthetics and visual resources; cultural resources; electromagnetic interference and electromagnetic fields; safety and security; parks and recreation; public utilities and energy; socioeconomics, communities and environmental justice; regional and cumulative impacts.?An extensive set of mitigations measures and a mitigation monitoring program was developed to lessen these impacts caused by the project with the goal of keeping all impacts below the level of significance.? When an impact was found to exceed the accepted level of significance a mitigation measure was designed to reduce the impact below the level of significance.? The FEIR/FEIS indicated that there were certain impacts that could not be kept below the level of significance even with the implementation of mitigation measures and therefore were considered significant.? Some of these impacts would only be temporary during the period of project construction.? Others would have long term consequences.? These categories of impacts that would be considered significant even with the application of mitigation measures included: noise and vibration; land use and development; agricultural lands; visual effects; parks, recreation and open space; and adverse effects on socioeconomics, communities and environmental justice.?? However, these significant impacts were not identified as specifically pertaining to the rail crossing that is the subject of this proceeding.The Commission’s Energy Division reviewed and considered the FEIR/FEIS for the proposed rail crossing. Based on our independent judgement, this decision finds that the FEIR/FEIS, along with the mitigation measures and monitoring program adopted for the project, are adequate for our decision-making purposes. The Commission’s Energy Division will file a NOD with the State Clearing House stating the Commission considered the environmental documents related to the proposed crossing.ConclusionThe application satisfies the requirements of Public Utilities Code §§?12011202, GO 26-D and Rule 3.10. The mitigation measures adopted by the applicant are satisfactory to reduce the environmental impacts of the project under CEQA. The applicant’s plans include significant public safety measures, and the applicant has addressed all safety concerns addressed by RSD. The application should be approved subject to the ordering paragraphs of this decision.Waiver of Comments on Proposed DecisionThis is an uncontested matter in which the decision grants the relief requested. Accordingly, pursuant to Public Utilities Code § 311(g)(2) and Rule 14.6(c)(2), the otherwise applicable 30-day period for public review and comment is waived.Assignment of ProceedingGenevieve Shiroma is the assigned Commissioner and Patrick Doherty is the assigned Administrative Law Judge in this proceeding.Findings of FactThe proposed railroad crossing meets the requirements of Rule 3.10.The proposed railroad crossing meets the requirements of GO 26-D.The environmental documents pertaining to this application were reviewed and found to be sufficient for the Commission’s role as a responsible agency under CEQA.With the mitigation measures adopted by the applicant, a number of environmental impacts relating to the proposed crossings which are able to be mitigated will be mitigated to less than significant.The applicant has addressed any safety issues or concerns of the Commission’s RSD.Conclusions of LawThe application to construct a new aerial structure that will carry the proposed California High-Speed Rail System tracks, milepost 280.40, over the existing BNSF Railway Bakersfield Subdivision tracks, milepost 911.50, at Wasco Avenue in Kern County should be approved subject to the provisions of the ordering paragraphs, below.The applicant should be given authority to construct these tracks and crossings for a period of 36 months from the date this decision is issued.This proceeding should be closed.ORDERIT IS ORDERED that:California High-Speed Rail Authority is authorized to construct one new rail-rail grade separated crossing of the California High-Speed Train System over the existing BNSF Railway tracks in Kern County. The rail-rail grade-separated crossing for the California High-Speed Train System shall be identified as California Public Utilities Commission Crossing Number 135S-280.40-BT; the BNSF crossing shall be identified as California Public Utilities Crossing Number 002-911.50-AT. Rail-rail crossings are not assigned United States Department of Transportation Numbers. The rail-rail grade separated crossing shall have the configuration specified in the application and its attachments. California High-Speed Rail Authority shall comply with all applicable rules, including California Public Utilities Commission General Orders. California High-Speed Rail Authority shall notify the California Public Utilities Commission’s Rail Crossings and Engineering Branch of the Rail Safety Division at least five business days prior to the opening of the crossing. Notification should be made by e-mail to rceb@cpuc.. California High-Speed Rail Authority shall notify the California Public Utilities Commission’s Rail Crossings and Engineering Branch of the Rail Safety Division of any changes to the milepost assigned to this location at least five business days prior to the opening of the crossing. Notification should be made by e-mail to rceb@cpuc.. Within 30 days after completion of the work authorized by this decision, California High-Speed Rail Authority shall notify the California Public Utilities Commission’s Rail Crossings and Engineering Branch of the Rail Safety Division by submitting a completed Commission Standard Form G (Report of Changes at Highway Grade Crossing and Separations), for the completion of the authorized work. Form G requirements and forms can be obtained at the California Public Utilities Commission web site, Form G page at cpuc.crossings. The completed report should be submitted via email to rceb@cpuc..This authorization shall expire if not exercised within 36 months of the issuance of this decision unless time is extended or if the above conditions are not satisfied. Authorization may be revoked or modified if public convenience, necessity or safety so require. A request for extension of the 36-month authorization must be submitted to the California Public Utilities Commission’s Rail Crossings and Engineering Branch of the Rail Safety Division at least 30 days before the expiration of that period.Application 19-08-010 is closed.This order is effective today.Dated June 25, 2020, at San Francisco, California.MARYBEL BATJER PresidentLIANE M. RANDOLPHMARTHA GUZMAN ACEVESCLIFFORD RECHTSCHAFFENGENEVIEVE SHIROMA Commissioners ................
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