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STATE OF CALIFORNIA ARNOLD SCHWARZENEGGER, Governor

PUBLIC UTILITIES COMMISSION

505 VAN NESS AVENUE

SAN FRANCISCO, CA 94102-3298

September 18, 2008 Agenda ID #7943

TO PARTIES OF RECORD IN RESOLUTION ROSB-002

NOTICE OF ALTERNATE RESOLUTION ORDERING ALTERNATIVE DISPUTE RESOLUTION BETWEEN PARTIES IN ORDER TO DETERMINE WHETHER TO ADOPT A RAILROAD CITATION PROGRAM FOR ENFORCING COMPLIANCE WITH GENERAL ORDERS AND OTHER REQUIREMENTS INCLUDING PROCEDURES FOR APPEAL OF CITATIONS ISSUED TO RAILROAD CARRIERS.

A draft resolution (ROSB-002) by the Consumer Protection and Safety Division recommending adoption of a Railroad Carrier Citation Program was scheduled for consideration on the September 18, 2008 Commission meeting agenda. Commissioner Simon has issued the attached alternate resolution. The Commission may vote on the resolution at the November 6, 2008 Commission meeting, or it may postpone a vote. The Commission may adopt all or part of ROSB-002, or the alternate, or may amend or modify it, or set it aside and prepare a different resolution.

The Commission will consider the draft and alternate resolutions at its November 6, 2008 meeting. Railroads subject to the Railroad Carrier Citation Program may file comments on the draft resolution. An original and 2 copies of comments must be filed with the Consumer Protection and Safety Division by October 7, 2008, at the address set forth below, and served electronically on Paul Phillips, advisor to Commissioner Simon, at psp@cpuc.ca.gov. Commenters must also serve comments on the other railroads potentially subject to the Citation Program, and send copies of comments by electronic mail to the e-mail address below. Comments shall focus on factual, legal or technical error in the draft resolution. (See Rule 14.5 for detailed requirements.)

Richard W. Clark, Director

Consumer Protection and Safety Division

California Public Utilities Commission

505 Van Ness Avenue

San Francisco, CA 94102

Telephone: (415) 703-2349

E-mail rwc@cpuc.ca.gov

Attachments

ATTACHMENT

Resolution ROSB-002: Resolution Ordering Alternative Dispute Resolution Between Parties In Order To Determine Whether To Adopt A Railroad Citation Program For Enforcing Compliance With General Orders And Other Requirements Including Procedures For Appeal Of Citations Issued To Railroad Carriers.

Pursuant to Public Utilities Code § 311(e), this is the digest of the substantive differences between the proposed resolution prepared by the Consumer Safety and Protection Division (CPSD) (mailed on April 15, 2008) and the alternate proposed resolution of Commissioner Timothy Alan Simon, (mailed on September 18, 2008).

CPSD's proposed resolution recommends that the Commission approve a citation program under the administration of the Director of CPSD for enforcing compliance with certain General Orders and other requirements for railroad carriers operating in California. Specifically, the citation program will enforce compliance with the requirements for walkways, clearances, notification of hazardous materials release, and certain railroad operating rules agreed to by the Union Pacific Railroad Company (UPRR) and BNSF Railway Company (BNSF) in Union Pacific Railroad Co. v. CPUC, Case No. 07-cv-001 (E.D. Cal. June 1, 2007) ("AB 3023 Suit"). Staff is delegated authority to draft and issue citations for specific violations and levy penalties in specified amounts as set forth in Appendix A of the proposed resolution.

The alternate proposed resolution recommends that a mediation be convened by the Commission's Administrative Law Judge Division to discuss and attempt to resolve differences between CPSD and the railroad carriers regarding the citation program. The Administrative Law Judge Division is directed to report back to the Commission three months after the resolution is effective.

PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Consumer Protection and Safety Division San Francisco, California Railroad Operations Safety Branch Date: September 18, 2008

R E S O L U T I O N

ALTERNATE RESOLUTION ORDERING ALTERNATIVE DISPUTE RESOLUTION BETWEEN PARTIES IN ORDER TO DETERMINE WHETHER TO ADOPT A RAILROAD CITATION PROGRAM FOR ENFORCING COMPLIANCE WITH GENERAL ORDERS AND OTHER REQUIREMENTS INCLUDING PROCEDURES FOR APPEAL OF CITATIONS ISSUED TO RAILROAD CARRIERS.

SUMMARY

On August 30, 2007, staff presented ROSB-001 with the stated purpose of creating a citation program for enforcing railroad compliance with selected general orders and certain other requirements. Staff later withdrew the resolution and refilled it in an amended form as ROSB-002.

Staff and the railroads appeared to have broad agreement about the importance of compliance, but they disagree about the most appropriate and effective process for achieving this goal. The parties have met together to discuss their differences regarding the resolution, but have not had the benefit of a mediator to help them resolve their outstanding issues. This matter has not been a subject of a formal proceeding, and there is no factual record on which to base a proposed Citation Program.

THEREFORE, IT IS ORDERED THAT:

1. For a period of three months from the date of this order,

staff and the railroads, subject to Commission jurisdiction, shall participate in an Alternative Dispute Resolution (ADR) process consistent with Commission rules for the purpose of attempting to settle upon an appropriate process for efficiently ensuring compliance with the Commission's General Orders and other requirements that would be the subject of a proposed Citation Program. The Administrative Law Judges Division shall assign an ALJ to serve as a neutral mediator for the ADR process. Three months from the date of this order, the assigned ALJ neutral shall submit a written report to the Commission on the status of the discussions and make a recommendation regarding whether the Commission should place the resolution implementing the proposed Citation Program back on the Commission Agenda.

I certify that the foregoing resolution was duly introduced, passed, and adopted at a conference of the Public Utilities Commission of the State of California held on _________________, 2008, the following Commissioners voting favorably thereon:

Updated ROSB Service Lists

Altamont Commuter Express

949 East Channel Street

Stockton, CA · 95202

AMTRAK

Joe Deely, Gn'l Mgr

530 Water Street

Oakland, CA 94607

Arizona & California Railroad Co.

Tanya Cecil

1301 California Avenue

Parker, AZ 85344

Tanya.cecil@railamerica.com

BNSF

Doug Werner, Counsel

P.O.Box 961056
Fort Worth, TX 76161-0056

douglas.werner@bnsf.com

Brotherhood of Locomotive Engineers and Teamsters

Tim Smith-Chairman, State Legislative Board

610 Auburn Ravine Road,Ste C

Auburn, CA 95603

United States of America

tsmith@sbcglobal.net

California Short Line Railroad Association

Jalene Forbis

Executive Director

P.O. Box 1500
McCloud, CA 96057

cslra@hotmail.com

California Northern Railroad Co. (Sub of: RailAmerica)

Don Seil, General Manager

1100 Main Street Suite 210

Woodland, CA 945695

530-392-5032 (c)

Don.seil@railamerica.com

CalTrain

Peninsula Commute Service Joint Powers Board

Jose Cisneros (Chair)

1250 San Carlos Ave.
P. O. Box 3006
San Carlos, CA 94070-1306

Chris Payne, Safety Officer paynec@samtrans.com

Carrizo Gorge Railway Inc.

Ken Kahan

2295 Fletcher Pkwy. Suite 101
El Cajon, CA 92020

newkenak@cox.net

Central California Traction Company

Dave Buccolo

2201 W. Washington Street, #12
Stockton, CA  95203

dbuccolo@cctrailroad.com

Central Oregon & Pacific (Sub of: RailAmerica)

Patrick Kerr

PO Box 1083

Roseburg, OR 97470

Patrick.kerr@railamerica.com

Fillmore & Western Railway

Dave Wilkinson

351 Santa Clara Avenue

Fillmore, CA 93015

dave@fwry.com

Lake County Railroad

513 Center Street
Lakeview, OR 97630

Los Angeles Junction Railway

Marion Alexander

4433 Exchange Avenue

Los Angeles, CA 90058

Olivia.chavez@bnsf.com

McCloud Railway Co.

Jeff Forbis

801 Industrial Way
PO Box 1500
McCloud, CA 96057

jforbismcrwy@yahoo.com

Modesto & Empire Traction Company

Ken Beard

530 11th Street

Modesto, CA 95353

kbeard@metrr.com

Napa Valley Railroad Co. (Wine Train)

Jeff Hullquist

800 8th Street

Napa, CA 94559-3422

nvrpd@sbcglobal.net

Niles Canyon Railway

Pacific Locomotive Association

P.O. Box 2247

Fremont, CA 94536-0247

North Coast Railroad Authority

Part of the Northwestern Pacific Railway Co., LLC

419 Talmage Road, Suite M

Ukiah CA 95482

North County Transit District (NCTD)

810 Mission Avenue
Oceanside, CA 92054

Pacific Harbor Line, Inc.

Andrew Fox, President

340 West Water Street

Wilmington, CA 90744

afox@anacostia.com

Quincy Railroad Co.

Eric Shelby

P O Box 420

Quincy, CA 95971

eshelby@spi-ind.com

Richmond Pacific Railroad Corp.

John Cockle

402 Wright Avenue

Richmond, CA 94804

johnck@levinterminal.com

San Joaquin Valley Railroad Co. (Sub of: RailAmerica)

Randy Perry, General Manager

221 N. "F" Street
Exeter, CA 93221
randy.perry@railamerica.com

Santa Cruz, Big Trees & Pacific Railway, Co.

Gary Guttebo

P.O. Box G-1

Felton, CA 95018

G_guttebo@yahoo.com

San Diego & Imperial Valley Railroad (Sub of: RailAmerica)

Pete Jesperson

1501 National Avenue, Suite 200
San Diego, CA 92113

Pete.jespersen@railamerica.com

Santa Maria Valley Railroad

Dave Jennings, VP/COO
Santa Maria Valley Railroad Co.
628 S. McClelland Street
Santa Maria, CA 93454
P: 805-922-7941
F: 805-922-9554
C: 805-598-8566
E:
jennings@smvrr.com
W:
www.smvrr.com

Skunk Train, Fort Bragg-Willits, CA (Sub of Sierra Northern Railway)

220 South Sierra Avenue

Oakdale, CA 95361

Sierra Northern Railway

Dave Magaw-President

341 Industrial Way

Woodland, CA 95776

dmagaw@att.net

Southern California Regional Rail Authority (SCRRA)

David Solow, CEO

Metrolink
700 South Flower Street, Suite 2600
Los Angeles, CA 90017

solowd@scrra.net

Stockton Terminal & Eastern Railroad

Greg Carney, President
1330 N. Broadway Ave.
Stockton, CA 95205

greg@sterailroad.com

Trona Railway Co.

Mark Bennett, Mgr of Operations

13068 Main St.

Trona, Ca. 93562

bennettm@svminerals.com

(760) 372-2280 phone

(760)384-8917 cell

Union Pacific Railroad Company

Carol Harris-General Commerce Counsel

49 Stevenson Street, STE 1050

San Francisco, CA 94105

caharris@up.com

United Transportation Union

James P. Jones, State Legislative Director

1005 12th Street, STE 4

Sacramento, CA 95814

utucslb@mindspring.com

Ventura County Railroad Company, Inc. (Sub of: RailAmerica)

Pete Jespersen, General Manager

333 Ponoma St
Port Hueneme, CA 93041 and

Pete.jespersen@railamerica.com

West Isle Line, Inc.

Randy Wuehler

3201 Avenue 54

Alpaugh, CA 93201

randyw@agriumretail.com

Yreka Western Railroad

Court Hammond

300 East Miner Street

Yreka, CA 96097

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