Practicability

This is a subject that was raised at the PHC and has permeated the proceeding. "Practicability" is found in Public Utilities Code Section 1202, which provides in part:

1202. The Commission has the exclusive power:

(c.) To require, where in its judgment it would be practicable, a separation of grades at any crossing established and to prescribe the terms upon which the separation shall be made . . .. (Ital. Added.)

It is similarly encountered in Rules 38(d) and 40 of the Commission's Rules of Practice and Procedure (Rules) pertaining to construction of a road across railroad tracks, or vice versa. Under these Rules the applicant must provide a statement showing why a separation is not practicable.

The leading case on the meaning and application of this term is City of San Mateo, (1982) 8 CPUC2d 572. That case prescribes the definition of practicability to be used in grade crossing cases, sets forth the policy behind its use, and applies this definition and policy to the proceeding before it. Practicable is explained as follows:

And it should be carefully noted that the word used in the statute (and carried over to the requirements for applications in Rule 38(d) of our Rules of Practice and Procedure is "practicable" rather than "practical." "Practicable" means being possible physically of performance, a capability of being used, a feasibility of construction. On the other hand "practical" connotes the means to build, the possibility of financing. For example, "a plan might be practicable in that it could be put into practice, though not practical because . . . too costly . . . " (Webster's New Dictionary of Synonyms (1973) p. 625.) (Supra at 581, fn 8)

The policy in favor of public safety over economy is stated at pages 580-581:

The PU Code provides that no public road, highway, or street shall be constructed at grade across a railroad track without prior permission from this Commission (PU Code § 1201), and places exclusive jurisdiction with this Commission to require, where in our judgment it would be practicable, a separation of grades (PU Code § 1202). The reason for this latter requirement is that railroad grade separations constitute ultimate protection, since all grade crossing accidents and delays then are eliminated. It has long been recognized that the Commission should not grant applications for crossings at grade where there is a heavy movement of trains, unless public convenience and necessity absolutely demand such a crossing. (Mayfield v S.P. Co. (1913) 3 CRC 474). The advantages which might accrue by way of added convenience and financial benefit are outweighed by the dangers and hazards attendant upon a crossing at grade. Accident incidence is related to increases in the number of crossings; therefore, grade crossings should be avoided whenever it is possible to do so. (Kern County Bd. Of Supervisors (1951) 51 CPUC 317). As long ago as 1971, the National Transportation Safety Board declared that "Grade crossings are not compatible with rail rapid transit operations", and in 1978 the Railroad-Highway Grade Crossing Handbook issued by the Federal Highway Administration, stated unequivocally, "Lines for high speed railroad passenger service should have no grade crossings."

And finally, the action that the Commission requires when an at-grade crossing is proposed is found at page 581:

Today in this State a proponent who desires to construct a new at-grade crossing over mainline railroad trackage carrying any appreciable volume of passenger traffic has a very heavy burden to carry. Against the aforestated formidable backdrop of fundamental statutory and professional opprobrium, he must convincingly show both that a separation is impracticable and that the public convenience and necessity absolutely require a crossing at grade. (Ital. Added.)

As noted by Blue Line, this language from City of San Mateo has been repeated in subsequent Commission decisions, such as City of Oceanside (1992) 43 CPUC2d 46 and City of San Diego (1998) D.98-09-059, rhng. den. (O.B. p 34)

Blue Line distinguishes the instant proceeding from San Mateo, Oceanside, and San Diego, supra, on the basis that those cases involved joint usage of tracks by heavy and light rail trains.

Blue Line argues that a "one-size-fits-all" approach to practicability does not make sense. It urges us to consider the differences between light and heavy rail. (O.B. p 37) In considering this approach we first look to Public Utilities Section 1202(c) and Rules 38(d) and 40. None of these distinguish between heavy or light rail operations over a crossing. None require that there be a heavy rail operation over the proposed light rail crossing before practicability is to be considered. Certainly the safety of the proposed crossing is influenced by the characteristics of heavy versus light rail, as noted by Commission's approval for separate general orders for each type system. General Order (GO) 143 specifically for light rail operations.

The need to address practicability does not disappear with the reduction of heavy rail movements. In City of San Mateo there was the possibility of 60 commuter trains daily over the proposed crossing, plus unnumbered freight operations. (Supra at 578.) City of Oceanside showed 16 heavy rail movements per day and only 6 freight movements per day, with additional Amtrak and commuter trains planned. (Supra at 49.) Yet it cited City of San Mateo, and the need for a convincing showing that a separation was impracticable, in denying the application for an at-grade crossing. City of San Diego, supra indicated there would be 150 light rail movements over the crossing in question and only two freight movements. (Mimeo. p 3) Once again the Commission denied an at-grade crossing, relying on City of San Mateo. The Commission has not been restricting City of San Mateo to instances where there are major, or even moderate, heavy rail movements.

Finally Blue Line would have us change the definition of "practicable" from that contained in City of San Mateo to one that would consider a cost-benefit analysis. (O.B. p. 38) We have some sympathy with this argument. The dictionary approach to this word presents a much more formidable barrier to all at-grade crossings than "the very heavy burden" and need to "convincingly show" test mentioned in City of San Mateo. Dr. Stone, project manager for Blue Line, stated that if cost were not a consideration there would be no physical reason preventing construction of separations for light rail lines. (Tr 1714) But this is the real world, and cost to taxpayers is a consideration. Indeed, even in this proceeding D.02-01-035 authorized the construction of at-grade crossings in A.00-10-020, A.00-11-033, and A.00-11-034. These were crossings where Blue Line fully explained the provisions it was making for safety. There was no evidence of problems and no protest at the conclusion of the evidentiary hearings. Staff analysis gave us some assurance of safety. While not employing a formal cost-benefit approach we do take these factors into consideration in applying the judgment allowed to us under Public Utilities Code Section 1202(c).

We have and will give consideration to the cost of a separation in comparison to the cost of an at-grade crossing. However, we will not demand a formalized cost-benefit study for every crossing for which application is made. Such a requirement would quickly become a duel of calculators and economists. We are also aware that the cost of a separation will, with very few exceptions, be multiples of the cost of an at-grade crossing. Were this not so there would be no desire for at-grade crossings.

Our determination in this and future applications will continue to apply the "heavy burden" and "convincing" standard enunciated in City of San Mateo, supra. When an application is filed to construct an at-grade, rather than a separated crossing, we shall look for the following:

1. A convincing showing by applicant to eliminate all potential safety hazards.

2. The concurrence of the local community authorities.

3. The concurrence of local emergency authorities.

4. The opinions of the general public, and specifically those who may be affected by an at-grade crossing.

5. Also relevant, though much less persuasive than safety considerations, should be the comparative costs of an at-grade crossing in comparison with as grade separation.

6. A recommendation by staff indicating that it concurs in the safety of the proposed at-grade crossing, though there may be conditions recommended.

When a hearing is deemed necessary we expect the evidence to include these issues. The weight to be accorded each issue will vary, depending on our evaluation of the overall presentation made. Applicant bears the heavy burden of proving safety, rather than protestants proving unsafe conditions. Where there is a request for an at-grade separation a mere preponderance of evidence will not suffice. The safety of the proposed at-grade crossing must be convincingly shown. We start with the presumption that a separation is appropriate. To overcome this presumption we expect evidence on future pedestrian and vehicle traffic over the crossing, the protective measures to be employed, the sight lines for trains and vehicles, the speed of trains and vehicles at the crossing, the number of train movements and length of trains, the ease of evasion of crossing protection by vehicles and pedestrians, and any other factors peculiar to the crossing. The detailed analysis of the crossing placed in evidence by our staff and the staff recommendation will be of great concern.