4. Discussion

4.1 Configuration

The principal issue is how to reconcile the close proximity of FSSC, with its pick-up and delivery traffic, the combination of other traffic, and the two closely spaced diagonal crossings. SCVTA's original plan proposed to solve the problem of the very close proximity of the Sunol crossing to the Sunol driveway for the FSSC will call lot by closing that driveway to vehicular traffic. This would have left the 17-foot-wide Auzerais driveway as the sole means of both ingress and egress to FSSC's will call lot. This configuration would raise a new safety problem. Trucks trying to maneuver in and out of the substandard lot could have accidents or come to a standstill, creating queues across the nearly adjacent tracks, uncontrolled by the traffic signals at the intersection or the crossing gates.

FSSC proposed that SCVTA reconfigure the location of its light rail track, and thus of the crossing warning devices, by placing the SCVTA track roughly where the UPRR freight track now is, and relocating the freight track to the south side of the corridor. FSSC asserts that this would move the tracks about 16 to 18 feet further away from FSSC and would allow the crossing warning devices to be located within the right-of-way. On the Sunol side, the will call driveway would no longer be between the gates and the track, but would be just north of the gates. The Auzerais driveway would remain 17 feet wide, but would be further removed from the tracks. FSSC notes that if SCVTA in addition gave it the use of a small piece of land on the Auzerais side, the driveway could be made wide enough to support two-way traffic.

This idea is simple: put the first of two potential SCVTA tracks in the middle of the corridor, and add any second track on the north side, just reversing the temporal order of building the SCVTA tracks and moving the UPRR freight track. On this record, however, this idea is insufficiently developed to be viable. It is presented only in the form of a sketch by FSSC's witness, Daniel Smith. Although Mr. Smith's expertise underlies this approach, the details necessary to evaluate it (e.g., the exact location of crossing warning devices, the traffic signal timing, the location of the presignal) have not been brought forward. These details are crucial, since small differences between Mr. Smith's sketch and a practical engineered plan could render this idea impossible to implement.

FSSC objects to SCVTA's proposal set out in Appendix B, noting among other things the awkwardness for drivers of adjusting to the exclusive entrance on Sunol. A driver coming eastbound on Auzerais would turn north on Sunol, be unable to turn left into the Sunol entrance, and would have to find a way to come back southbound on Sunol. Since FSSC is a wholesale business, however, its facility is used by many repeat customers and by professional transport drivers. Professional drivers and contractors are likely to assimilate the new layout quickly, in order to avoid the time lost in driving around. This temporary inconvenience is preferable to forcing drivers to use the Auzerais driveway as the sole entrance and exit for the will call lot.

With some changes, the SCVTA proposal set out in Appendix B will provide an acceptable level of safety at these crossings without requiring changes to FSSC's operation that could create additional safety problems. Converting the Auzerais driveway to a one-way exit eliminates the problem of trucks and other vehicles maneuvering in a two-way driveway of substandard width, with the potential of causing vehicles to get stuck in the driveway or on the tracks. The exit gate in the three-quadrant gate design will prevent left turns from the will call lot when a train is coming. If a vehicle turns left onto the tracks near the time a train is coming, the combination of the clear-out interval of the traffic signals, and the installation of vehicle detection technology within the crossing area will allow the vehicle to clear the tracks ahead of the approach of a train.¹⁰

Using the Sunol driveway as a one-way entrance, accessible only by a right turn from southbound Sunol, preserves the driveway for use by FSSC but greatly reduces the safety hazards of its continued operation. The presignal north of the driveway will stop traffic when a train is coming; if a vehicle has started to enter the driveway before the presignal turns red, it will be able to enter but vehicles behind it will be stopped. Since the Sunol side of the intersection is subject to the first clearance interval, a vehicle entering the driveway near the time a train arrives will have at least 24 seconds (the length of the Auzerais clearance interval) to succeed in entering the driveway.

The accompanying change to a right-turn-only entrance to the delivery area will reduce the possibility of traffic on northbound Sunol backing up onto the tracks as large semi tractor-trailer rigs headed north back into the delivery area. Any back-up of traffic north of a backing big rig on southbound Sunol will not affect the crossing. Commission staff should monitor compliance with the no-left-turn restriction.

SCVTA also proposes that a set of traffic control tire spikes be placed in the will call lot near the Sunol entrance, to prevent vehicles from exiting on Sunol. This draconian proposal creates the potential of having a truck, disabled by the tire spikes, blocking the Sunol entrance, or - worse - straddling the tracks, for an extended period of time. This plainly disastrous prospect is not necessary, if additional steps are taken to improve safety in other ways. The most important is the addition of flashing light units facing the Sunol driveway for FSSC to the Standard No. 9 warning devices directed to traffic on southbound Sunol. This active warning device for the Sunol driveway will provide drivers with the standard warning for a highway-rail crossing and make clear the nature of the hazard.

Emphasizing the one way in/one way out nature of the will call lot will also increase the effectiveness of the plan set out in Appendix B. FSSC currently has a sign with its name and address painted on the wall of the warehouse building just north of the Sunol will call driveway. To aid in identifying this as the exclusive entrance to the will call lot, SCVTA should pay for the prominent addition of the words "Entrance (No left turn)" or similar wording to the sign area. SCVTA should also pay for painting signs on the side of the FSSC building closest to the Auzerais driveway, facing the will call lot, and on the driveway pavement, with "Exit Only" or similar wording. The pavement marking should consist of durable thermoplastic. In addition, SCVTA should pay for the installation of thermoplastic arrows on the pavement of the will call lot, indicating the one-way direction through the lot.¹¹

Because of the unusual geometry of the crossings and the truck traffic in close proximity, as well as the absence of a physical barrier to prevent vehicles from exiting the will call lot onto Sunol, SCVTA must reduce the speed limit for its LRVs to 35 mph approaching and traveling through the crossings, to enable operators to see problems at the crossings more readily and to allow increased response times for the operators.

In order to increase compliance with the design we authorize, SCVTA should prepare, print, and deliver to FSSC's premises flyers, in appropriate languages, explaining the system and the dangers of ignoring it or violating the traffic signs.¹² These flyers should be provided to FSSC for distribution to employees, customers, suppliers, and delivery service drivers in the month before and first two months of revenue operation of the Vasona Project.

It is evident that this plan needs the cooperation of FSSC. FSSC must cooperate with SCVTA on the signs and striping for its premises. FSSC must encourage its employees and suppliers to comply with the new traffic flow pattern of its will call lot and the right-turn-only delivery area entrance on Sunol. We do not have jurisdiction to order FSSC to do this. We rely on the safety benefits of this plan, combined with its minimal disruption of FSSC's business, to align FSSC's interests with those of SCVTA and the general public in making it work.

4.2 CEQA

FSSC's request that the Commission undertake additional CEQA review is based on CEQA's standards for the preparation of subsequent or supplemental environmental impact reports, set out in Pub. Res. Code § 21166:

When an environmental impact report has been prepared for a project pursuant to this division no subsequent or supplemental environmental impact report shall be required by the lead agency or by any responsible agency, unless one or more of the following events occurs:

(a) Substantial changes are proposed in the project which will require major revisions of the environmental impact report.

(b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report.

(c) New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available.¹³

FSSC relies on the "new information" prong of these requirements, and asks the Commission, as a responsible agency, to take on this task pursuant to CEQA Guidelines §§ 15052, 15162, and 15163.

The legal standards for requiring a subsequent or supplemental EIR on the basis of new information are exacting. The information claimed to require the new study must not only be new¹⁴, but must lead to the conclusion that the certified EIR did not address significant effects, or that significant effects addressed in the EIR will be more severe, or that better mitigation measures are both feasible and required. CEQA Guidelines § 15162. The courts have made it clear that these requirements are meaningful and must be met. See, e.g., A Local and Regional Monitor v. City of Los Angeles (1993) 12 Cal.App. 4th 1773, in which the court refused to require a responsible agency to prepare a subsequent EIR for a downtown redevelopment project in Los Angeles in response to the presentation of assertedly new information about traffic issues.

FSSC contends that the changes in land use planning and zoning to allow dense residential and commercial development in the area of San Jose close to the crossings, described in § 3.6 above, constitute such new information. FSSC also argues that because the EIR did not include any study of the Sunol/Auzerais intersection, any specific, current information developed about the intersection and the crossings is new information for CEQA purposes.

SCVTA asserts that the impacts of the Vasona Project as a whole were properly considered in the EIR, because the EIR noted that redevelopment projects throughout the area of the Vasona Project were tending toward residential and commercial development and away from industrial development. The identification of particular rezoning actions or redevelopment projects in the vicinity of the crossings does not rise, SCVTA asserts, to the level of genuinely new information requiring that the environmental review be reopened.

We do not need to choose between FSSC's claim that the EIR needs more detailed information about the area of the crossings as now known, and SCVTA's assertion that any deficiencies that may be found to exist in the EIR are too minor to warrant revisiting the CEQA process. Our own authority over rail crossing safety under Pub. Util. Code § 1202 allows us to set requirements for warning devices at these two crossings based on the evidence in the record of this proceeding, including the EIR and other studies. This record is sufficient for us to make the necessary determinations. The further CEQA study that FSSC seeks is unnecessary in this case. FSSC's motion should therefore be denied.

¹⁰ SCVTA has not specifically identified vehicle detection technology as part of the plan for the Auzerais crossing. We will order that it be included as an added measure to help ensure that vehicles will not be stranded in the crossing. ¹¹ SCVTA proposes to take easements from FSSC to allow it to install and maintain the signs and other warnings on FSSC property. We express no opinion on the method -whether easement, contract, or other device - by which SCVTA and FSSC arrange to allow the work required by this order to be accomplished. ¹² SCVTA and FSSC should confer about what languages other than English, if any, would be best for communicating with drivers using FSSC's premises. ¹³ These requirements are explained and elaborated in CEQA Guidelines §§ 15162 (subsequent EIR or negative declaration) and 15163 (supplemental EIR). ¹⁴ The CEQA Guidelines note that this must be "[n]ew information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified. . ." CEQA Guidelines § 15162, subd. (a)(3).