2. Background
The Commission issued Order Instituting Rulemaking (OIR) 07-09-007 on September 25, 2007, for the purpose of determining the appropriate size ballast1 for use on walkways within railway switching yards for the occupational health and safety of railway employees.2 The Rulemaking required United Transportation Union (UTU) to provide the names of railway switching yards where the conditions of walkways are of particular concern. The Commission's Consumer Protection and Safety Division (CPSD) was ordered to inspect the sites and file a report with the Commission on the findings.
UTU filed a response to the Rulemaking on October 17, 2007, and provided the location of Union Pacific Railroad Company (UP) and Burlington Northern Santa Fe Railway Company (BNSF) switching yards considered most out of compliance with industry best practices regarding ballast size. UTU identified UP switching yards at Roseville, West Colton, Bakersfield, Fresno and
Los Angeles (East Yard). UTU identified BNSF switching yards at Barstow, Stockton (Mormon Yard), Bakersfield, and Fresno. UP and BNSF filed a joint response to the Rulemaking on October 25, 2007.
On January 17 and 18, 2008, CPSD staff conducted inspections at the UP Roseville Yard and the BNSF Mormon Yard, respectively. The inspections were witnessed by representatives of all parties. CPSD filed its inspection report on February 22, 2008, noting multiple exceptions where ballast size exceeded the American Railway Engineering and Maintenance-of-Way Association (AREMA) #5 standard. On April 11, 2008, UP filed comments on the staff inspection report and an amended response to the OIR. On April 23, 2008, BNSF and the Short Lines3 filed comments on the staff inspection report.
The Administrative Law Judge (ALJ) issued a ruling on June 4, 2008, scheduling a CPSD-conducted workshop for July 29 and 30, 2008. On the afternoon of July 29, 2008, the parties informed CPSD staff of the desire to use the remainder of the workshop time to engage in settlement negotiations. The request was granted and CPSD filed its workshop report on September 4, 2008.
The original statutory deadline for resolution of this proceeding was March 25, 2009. In December 2008, by email, the parties notified the ALJ that settlement negotiations were progressing, but due to the number of participants, more time was needed to finalize the agreement. Pub. Util. Code § 1701.5 provides that quasi-legislative cases be resolved within 18 months of the scoping memo unless the Commission makes findings why that deadline cannot be met and issues an order extending the deadline. No single order may extend the deadline for more than 60 days. Decision (D.) 09-03-012 extended the statutory deadline to May 21, 2009.
The parties filed the settlement agreement on March 11, 2009. The ALJ sought additional information from the parties regarding the settlement agreement on April 20, 2009. Because there was insufficient time for the ALJ to review the parties' responses to the ruling and prepare a proposed decision before the May 21, 2009, deadline, the Commission extended the statutory deadline a second time to July 20, 2009, (D.09-05-010). Because of the Commission meeting schedule and the required 30-day public review and comment period, it was necessary to extend the statutory deadline a third time to September 18, 2009. The final decision in this proceeding was held over from the Commission meeting of September 10, 2009, making it impossible to resolve this proceeding by the statutory deadline of September 20, 2009. The statutory deadline was extended a fourth time to November 17, 2009.
1 Ballast is crushed rock placed under and around railroad tracks to provide support and drainage.
2 The Rulemaking was opened pursuant to Petition for Modification 06-12-012 filed by United Transportation Union.
3 California Northern Railroad Co., Central California Traction Co., Central Oregon & Pacific, McCloud Railway Co., Modesto & Empire Traction Co., Pacific Harbor Line, Inc., Richmond Pacific Railroad Corp., Santa Maria Valley Railroad Co., San Diego & Imperial Valley Railroad, and San Joaquin Valley Railroad.
