I. INTRODUCTION
In this Order we dispose of the application for rehearing of Decision
(D.) 11-10-025 (or "Decision") filed by BNSF Railway Company ("BNSF").
On October 21, 2010, Tessera Solar LLC ("Tessera") filed a Complaint against BNSF on behalf of its then subsidiary, Calico Solar LLP ("Calico"). The Complaint sought immediate temporary use of BNSF's private at-grade rail crossing
at Hector Station consistent with Public Utilities Code Section 7537.1 On
December 3, 2010, the Complaint was amended to add Calico as a complainant, and to also request approval of a new permanent grade-separated bridge crossing at a different location.2
Both crossing approvals were sought in connection with development of
the Calico Solar Project ("Project"), a utility scale solar power plant to be located in
San Bernardino County, California. The Project is subject to licensing by the California Energy Commission ("CEC"),3 and was originally approved by the CEC in
December 2010.4 CEC was the Lead Agency for the Project under CEQA.5 In
March, 2011, Calico amended the Project proposal, approval of which is still pending before the CEC.6
Decision 11-10-025 (or "Decision") approved both crossing requests. BNSF filed a timely application for rehearing alleging: (1) the Commission did not have authority to approve Calico's use of BNSF's Hector Station property; and (2) the Commission failed to fulfill its duty under CEQA to conduct environmental review. A response was filed by Calico.
We have carefully considered the arguments raised in the application for rehearing, and are of the opinion that good cause has been established to modify the Decision. In particular, we will modify the Decision to: (1) clarify the CEQA exemption relied on in approving Calico's use of the Hector Station crossing; and (2) deny approval of the new grade-separated crossing until we have fulfilled our obligation as a Responsible Agency under CEQA. In all other respects, we deny the application for rehearing of D.11-10-025, as modified herein, because no legal error has been shown.
1 All subsequent Section references are to the Public Utilities Code unless otherwise stated. Section 7537 provides in pertinent part:
The owner of any lands along or through which any railroad is constructed or maintained, may have such...private crossings over the railroad and railroad right of way as are reasonably necessary or convenient for ingress to or egress from such lands, or in order to connect such lands with other adjacent lands of the owner....The commission shall have the authority to determine the necessity for any crossing....
(Pub. Util. Code, § 7537.)
2 The Commission has authority over the construction and location of new rail crossings, including authority to require grade-separated crossings, where practicable, under Sections 1201 and 1202.
3 Pub. Res. Code, § 25540.6; CEQA Guidelines Section 15251(a) & (j). (Cal. Code of Regs., tit. 14,
§ 15251, subds. (a) & (j).)
4 CEC Decision approving the Calico Solar Project, dated December 2010 ("CEC 2010 Decision"), at
p. 2, located at:
http://www.energy.ca.gov/2010publications/CEC-800-2010-012/CEC-800-2010-012.CMF.PDF. As proposed, the Project would provide 663.5 megawatts ("MW") of generation to be produced by solar collectors called "Suncatchers." (See Exhibit ("Exh.") 128, Attachment O, at p. 1-1 [Calico Petition to Amend, dated March 18, 2011].)
5 See CEC 2010 Decision, at p. 2. The Bureau of Land Management ("BLM") was the Lead Agency for the Project under the National Environmental Protection Act ("NEPA").
6 Exh. 128, Attachment O, at p. 1-1 [Calico Petition to Amend, dated March 18, 2011]. Project amendments would, among other things, allow up to 563 MW of total generation to be provided by photovoltaic ("PV") technology.
