III. CONCLUSION

For the reasons stated above, D.11-10-025 is modified as discussed herein and specified below. The application for rehearing of D.11-10-025, as modified, is denied because no legal error has been shown.

THEREFORE, IT IS ORDERED that:

D.11-10-025 is modified as follows:

a. The Summary Section on page 1 is modified to read:

"This decision orders BNSF Railway Company to allow Calico Solar, LLC (Calico) immediate access to the Hector Station crossing for pre-construction activity related to the development of the Calico Solar Project. Approval of the new grade-separated bridge crossing is denied until the Commission has fulfilled its obligation as a Responsible Agency under the California Environmental Quality Act (CEQA). Calico may resubmit its request for approval of the new grade separated crossing after the Lead Agency has completed its final environmental review."

b. The title of Section 7.3 on page 14 is modified to read:

"Use of the Hector Station Crossing is Exempt From CEQA Review"

c. The text of Section 7.3 on pages 14-15 is deleted and replaced as follows:

"BNSF argues the Commission may not authorize a railroad crossing pursuant to Section 7537 without first conducting an environmental review pursuant to CEQA. That is incorrect.

CEQA requires environmental review for actions deemed to be "projects." (CEQA Guideline Section 15378(a).) In this instance, Calico's use of the Hector Station involves no new construction or modification. In addition, the approved temporary use is consistent with Calico's past use of the crossing. Thus, the use is not a "project" since it will not have a direct physical change or reasonably foreseeable indirect change on the environment. Even if it were a "project", BNSF did not establish that Calico's use will have any significant environmental effect. Thus, it is also exempt under CEQA Guideline Section 15061(b)(3).

d. Modify the title of Section 8 on page 21, to replace the words "At-Grade"

with "Grade-Separated."

e. The last paragraph on page 22 is deleted and replaced as follows:

"In cases such as this, where the Commission is asked to approve construction of a new rail crossing, the Commission typically acts as a Responsible Agency under CEQA (CEQA Guideline Section 15096.) That statute requires the Commission to consider the environmental document prepared by the Lead Agency before rendering any determination. (CEQA Guideline Section 15096(a) & (f).)

The new grade-separated crossing is part of the Calico Solar Project, which is subject to review by the CEC as the Lead Agency for CEQA. However, as already noted the CEC has not completed its environmental review of the proposed Project amendments. Therefore, there is no final environmental document for the Commission to consider at this time and any immediate approval would be premature. For that reason, we must deny approval of the new grade-separated crossing until we can fulfill our duty as a Responsible Agency under CEQA. Calico may resubmit its request for approval as an application, along with the CEC's final environmental document, after the CEC has completed its environmental review."

f. Section 8.2 on page 23, addressing the cost and timeframe for completing the new grade-separated crossing is deleted.

g. Finding of Fact Number 17 on page 27 is modified to read:

"The CEC approved the original Calico Solar Project, including the new grade-separated bridge crossing at milepost 710.8, in December 2010.

h. Finding of Fact Number 18 on page 28 is modified to read:

"In March 2011, Calico filed its Petition to Amend the Calico Solar Project with the CEC."

i. Finding of Fact Number 19 on page 28 is modified to read:

"The CEC has not completed its Lead Agency CEQA review of the amended Calico Solar Project."

j. Finding of Fact Number 20 on page 28 is modified to read:

"CEQA Guideline Section 15096 establishes requirements for Responsible Agencies under CEQA."

k. Conclusion of Law Number 6 on page 28 is modified to read:

"Calico's use of the Hector Station crossing is exempt from CEQA review pursuant to CEQA Guideline Section 15378(a) and/or Section 15061(b)(3)."

l. Conclusion of Law Number 12 on page 30 is modified to read:

"Pursuant to CEQA Guideline Section 15096 the Commission, as a Responsible Agency under CEQA, must consider the environmental document of a Lead Agency before making any determination."

m. Conclusion of Law of Fact Number 13 on page 30 is modified to read:

"Calico's request for approval of a new permanent grade-separated crossing at milepost 710.8 is premature."

n. Conclusion of Law Number 14 on page 30 is modified to read:

"The Commission cannot consider Calico's request for approval of the new grade-separated crossing until it has fulfilled its duty as a Responsible Agency under CEQA and reviewed the final environmental document of the CEC."

o. Conclusion of Law Number 15 on page 30 is deleted.

p. Conclusion of Law Number 16 on page 30 is deleted.

q. Ordering Paragraph Number 4 on page 32 is modified to read:

"Calico Solar LLC's request for approval of a new grade-separated crossing is denied, without prejudice.

The application for rehearing of D.11-10-025, as modified, is denied.

This order is effective today.

Dated February 16, 2012, at San Francisco, California.

MICHAEL R. PEEVEY President

TIMOTHY ALAN SIMON

MICHEL PETER FLORIO

CATHERINE J.K. SANDOVAL

MARK J. FERRON  Commissioners