V. Discussion

Although subject to some periodic confusion during the proceeding, what is being requested here is not a complete Commission approval of Phase Two testing, but rather an approval of the deviations from provisions of GO 127 that would allow such testing to occur, and mechanisms to have Rail Safety be involved in reviewing every aspect of the testing program.

With those deviations approved, Phase Two testing can occur. The agreement between Rail Safety and BART provides for Rail Safety to approve in advance each proposed component of the Phase Two testing for compliance with the agreed-upon Safety Certification Plan. Rail Safety would have a minimum of 14 days to review any modifications to the Safety Certification Plan. Upon completion of all of the required elements of the Phase Two program, BART would file what is, in the agreement, denominated an "advice letter" to advise the Commission of achieving completion and to provide some notice to the public and the opportunity for any challenges to that status.

As now presented (and as we will require) Phase Three revenue service will necessitate a separate application which will apprise us of the results of the Phase Two testing, the status of all safety certifications necessary and the involvement of the Rail Carrier unit. Therefore, this settlement is not of the ultimate approval to institute a new operational program, but rather to authorize the operational rule changes necessary to permit the proposed new operational program to be evaluated.

Rule 51.1(e) provides that the Commission must find a settlement "reasonable in light of the whole record, consistent with the law, and in the public interest" in order to approve the settlement. These criteria apply to the settlement before us.

BART and Rail Safety have tendered an "uncontested settlement" as defined in Rule 51(f), i.e., a settlement that "...is not contested by any party to the proceeding within the comment period after service of the [] settlement on all parties to the proceeding." Only one other party has noted any comments on any of the various iterations of settlements offered in this proceeding. On November 17, 1999, the United Transportation Union advised the assigned administrative law judge that it "waives any right to comment on the proposed settlement agreement between the San Francisco Bay Rapid Transit District and the California Public Utilities Commission regarding Application 99-02-012." (Letter of Michael N. Anderson, November 17, 1999.)

In San Diego Gas & Electric (1992) 46 CPUC2d 538, the Commission further defined its policy as applicable to all party settlement proposals. As a precondition to approval the Commission must be satisfied that:

a. the proposed all party settlement commands the unanimous sponsorship of all active parties to the instant proceeding;

b. the sponsoring parties are fairly reflective of the affected interests;

c. no term of the settlement contravenes statutory provisions or prior Commission decisions; and,

d. the settlement conveys to the Commission sufficient information to permit it to discharge its future regulatory obligations with respect to the parties and their interests.

This settlement is tendered pursuant to Rule 51, and the settling parties aver that it conforms to all the above criteria.²

Settlements presented to the Commission must necessarily be reviewed and considered with a certain element of caution. Unlike a situation involving purely private litigants and limited to their individual interests, matters before this Commission often involve elements affecting broad public interests. Even those public interests may be quite diverse reflecting all of the participants in the provision of utility service from investors to employees to suppliers to customers, as well as interests impacted by those activities, including the broader public, other public agencies, the environment and other concerns. Here that is clearly the case, where the applicant is itself a public transit district and the issues at stake are the safety of and service to their passengers. The settlement here is between BART and the Commission's Rail Safety unit, our staff division charged with primary responsibility on behalf of the Commission for actively monitoring and reviewing all elements related to public rail transit safety.

We are confident that Rail Safety takes these responsibilities very seriously and will carefully monitor and review all aspects of this evolving program. The public safety demands no less. We need to be sure there is no question as to what exactly the Rail Safety unit's role will be during the implementation and evaluation of the various steps for the Phase Two and, ultimately, Phase Three operations. Comments from Rail Safety's counsel at the third PHC indicated that the role of Rail Safety would be to "monitor BART's progress through these phases." (Tr. PHC 50.) We want to ensure that there is no misunderstanding and that Rail Safety's role will be extensive and not just serve to "monitor BART's progress."

In the last adopted Commission business plan, the role of our staff in maintaining rail safety oversight was specified. Among the adopted strategies for carrying out its rail safety role with respect to rail transit operations such as BART was the following:

"Participate in engineering design reviews, identify oversight focus on safety-critical systems and sub-systems, review design documents, review safety certification process, including verification and validation of software, witness testing, perform sampling inspections, and check records to evaluate compliance with the Commission's safety rules and regulations and other established industry safety standards. Resolve safety issues and insure closure of all open safety concerns prior to opening for revenue service." (Public Utilities Commission, 1999-2000 Business Plan, Rail Safety and Carriers Division Section, 4, Strategy 1.)

We have no reason to believe that that role has changed. We will require that the Rail Safety unit's role is not merely to determine if BART is proceeding to do what it said it would do, but to evaluate each and every step of the process to determine whether the paramount concern of passenger safety is being adequately addressed or modifications are necessary.

The settlement here is limited to approving certain deviations from GO 127 and a prior Commission decision that will permit the testing of the proposed change in control/monitoring technology. It establishes agreed-upon procedures for the Rail Safety unit to continuously monitor all aspects of the Phase Two testing, to review and approve each new element of testing prior to it being undertaken and, in so doing, to provide an on-going exercise of the Commission's statutory obligation BART safety. In effect, the settlement is more an approval of an agreed upon process than an outcome.

We note that the proposed Settlement Agreement language modifying GO 127 is clearer than the proposed language contained in BART's original application. We also note that the Settlement Agreement contains provisions for periodic reporting to staff. Rail Safety's concern regarding the Safety Certification Plan has resolved and, according to the Settlement Agreement, Rail Safety will receive and review any future revisions of the Safety Certification Plan.

When examined as a total product, we find the Settlement Agreement to be reasonable in light of the whole record, consistent with law, and in the public interest.