OSA-0351; C-79081327.O; Borough of Royalton V. National Railroad Passenger Corp
PENNSYLVANIA
PUBLIC UTILITY COMMISSION
Harrisburg, PA 17105-3265
Public Meeting held March 2, 2017
Commissioners Present:
Gladys M. Brown, Chairman
Andrew G. Place, Vice Chairman
John F. Coleman, Jr.
Robert F. Powelson
David W. Sweet
Investigation upon the Commission’s own I-00970069
Motion to determine the condition, disposition
And responsibility for maintenance of the existing
Crossing structure carrying Mary Street (T-439)
Above-the-grade of the track of the Reading, Blue
Mountain and Northern Railroad Company in Fairview
Township, LuzerneCounty (AAR 361 471S)
OPINION AND ORDER
BY THE COMMISSION:
Before the Commission for consideration and disposition is “Fairview Township’s Motion for Extension of Time to Comply with Paragraph 2 of the Commission’s August 2, 2012 Order, and Paragraph 14 of the Pennsylvania Public Utility Commission’s Stipulation and Settlement DocumentDated June 14, 2014” (Motion) filed by Fairview Township, Luzerne County (Township) on January 10, 2017. On February 2, 2017, Pennsylvania-American Water Company (PAWC) filed correspondence indicating it does not oppose the Motion. No other documents have been filed in response to the Motion. For the reasons set forth herein, we will grant the Motion.
History of Proceeding
On October 6, 1997, the Commission initiated the above-captioned investigation of a railroad crossing involving a bridge(Bridge) carrying Mary Street over the tracks of the Reading, Blue Mountain and Northern Railroad Company (Railroad) in the Township. By Order entered May 24, 1999, at this docket number (1999 Order), the Commission directed the Township to demolish and remove the existing bridge,and to construct a new bridge, at the crossing.
Specifically, ParagraphNo. 7 of the 1999 Orderdirected the Township to prepare, and submit to this Commission for approval, plans for the demolition and removal of the existing bridge and the construction of the new bridge. The pertinent plans were to be submitted on or before May 24, 2001. 1999 Order at ¶ 7.
By Opinion and Order entered October 16, 2000, the Township was granted until May 24, 2003, to submit the relevant plans. By Opinion and Order entered June 17, 2003, the Township was granted a further extension until May 24, 2004, to submit the plans. By Opinion and Order entered May 12, 2004, the Township was granted a further extension until May 24, 2005, to accomplish the requirements set forth in ParagraphNo.7 of the 1999 Order.
On February 14, 2005, the Township filed a request for an extension of time, requesting that it be granted until May 24, 2006, to accomplish the requirements set forth in ParagraphNo. 7 of the 1999 Order. The Railroad filed a Reply objecting to the Petition and the Township filed a Response to the Railroad’s Reply. By Order entered June 3, 2005, the Commission granted the Township’s requested extension of time.
The Township was granted another extension of time, until May 24, 2007, to accomplish the requirements set forth in ParagraphNo. 7 of the 1999 Order. On May23, 2007, the Township submitted a detailed right-of-way and construction plan for the Commission’s approval. By Secretarial Letter issued on June 14, 2007, the Commission certified the plans as correct and approved them.
Paragraph No. 9 of the 1999 Order required the Township, within twelve months of Commission approval of the construction plans, to furnish all material and do all work necessary to complete the construction of a new bridge in accordance with the approved plans. On May 20, 2008, the Township filed a Petition for Extension of Time, requesting additional time within which to complete the directives contained in Paragraph No. 9 of the Commission’s 1999 Order. No response to that Petition was filed.
By Order entered herein on October 16, 2008 (October 2008 Order), the Commission granted the Township’s Petition for Extension of Time and extended the previous deadline until December 31, 2009, to allow the Township time in which to complete the requirements set forth in Paragraph No. 9 of the Commission’s 1999 Order.
On October 30, 2008, the Railroad filed a Petition for Reconsideration of the Commission’sOctober 2008 Order. That Petition for Reconsideration was denied by Commission Order of January 23, 2009.
On November 2, 2009, the Township filed a Motion for Extension of Time to Comply with Paragraph No. 9 of the 1999 Order. Subsequently, on September 15, 2010, the Township filed a Supplementto that Motion. By Order entered November 23, 2010 (November 2010 Order), the Commission granted the Township’s Motion and Supplement extending the previous deadline to June 30, 2012.
On June 29, 2012, the Township filed a Motion for Extension of Time to Comply with Paragraph No. 9 of the 1999 Order, seeking an extension of time until December 31, 2013, to comply with the directives therein set forth. No Answers or Objections to the Motion were filed. By Order entered August 2, 2012 (August 2012 Order), the Commission granted the extension and modified Ordering Paragraph No. 9 of the 1999 Order.
On December 24, 2013, the Township filed (1) a Petition for Partial Rescission and Amendment of the 1999 Order, seeking authority to remove the Bridge and to eliminate the obligation to replace it, and (2) a Motion in the Alternative for Extension of Time to Comply with Paragraph No. 9 of the 1999 Order. The Railroad filed an Answer on January 14, 2014, agreeing that the Bridge should not be replaced, but suggesting that it could be abandoned as a roadway and left in place. By Opinion and Order entered April 3, 2014, the Commission agreed that circumstances have changed since the Bridge has been closed, and referred the matter to the Office of Administrative Law Judge for updating the record and making a recommendation.
On July 14, 2014, the Township, the Commission’s Bureau of Technical Utility Services, the Pennsylvania Department of Transportation (PennDOT), Luzerne County, the Railroad, UGI Penn Natural Gas, Inc., and PAWC filed an executed Stipulation and Settlement (Settlement). In pertinent part, the Settlement provided that “[t]he Bridge should be demolished and removed at the initial cost and expense of the Township. Removal will be completed by December 31, 2016.” Settlement at ¶ 14. The Settlement further provided that the crossing should be abolished. Id. at ¶12. By Order entered August 21, 2014 (August 2014 Order), the Commission adopted the Recommended Decision of Administrative Law Judge Ember S. Jandebeur, which approved the Settlement.
On January 10, 2017, the Township filed the instant Motion. As previously stated, the only document filed in response was a letter stating that PAWC had no objection to the Motion.
Discussion
Legal Standards
In pertinent part, Section 1.15 of our Regulations, 52 Pa. Code § 1.15, provides:
Except as otherwise provided by statute, whenever under this title or by order of the Commission, . . . an act is required or allowed to be done at or within a specified time, the time fixed or the period of time prescribed may, by the Commission, the presiding officer or other authorized person, for good cause be extended upon motion made before expiration of the period originally prescribed or as previously extended. Upon motion made after the expiration of the specified period, the act may be permitted to be done where reasonable grounds are shown for the failure to act.
The Motion was filed on January 10, 2017, which is after the expiration of the specified period. Consequently, as the party requesting relief, Fairview Township has the burden of proving reasonable grounds for the failure to act. 66 Pa. C.S. § 332(a).
Motion
In the Motion, the Township contends that it has undertaken “timely and good faith action” to meet the deadline set forth inParagraph No. 9 of the 1999 Order, as modified. Motion at ¶36. In support, the Township states that it retained Borton-Lawson Engineering, Inc. (Borton-Lawson), to prepare required construction documents, obtain necessary permits, and provide other services with respect to the project. Attached to the Motion is the affidavit of Geoffrey W. Gribble, P.E., of Borton-Lawson, summarizing activities undertaken on behalf of Fairview Township since June 2014. Those activities include:
- Coordinating with PennDOT’s Cultural Resource Unit regarding the potential for an entity to purchase the bridge, once removed from abutments;
- Obtaining Township and PennDOT approval of a new scope of work and price proposal;
- Preparing a new bid package, including Plans, Specs, Cost Estimate, Clearances and Construction Schedule;
- Coordinating with the Railroad to secure engineering review and approval;
- Assisting in having the revised Right-of-Way Plan re-recorded at the Luzerne County Courthouse; and
- Coordinating the drafting of the Railroad Reimbursement Agreement among the Township, PennDOT and the Railroad.
Motion, Exh. A. at 2-3.
Additionally, the affidavit states,“In July [2016], Borton-Lawson was notified by PennDOT that there was not enough money available to fund construction this calendar year. PennDOT also indicated there were no available dates remaining [in 2016] to advertise the project in this calendar year.” Id. at 3. On September 28, 2016, Borton-Lawson submitted final plans for the project to the Commission, which were certified and approved by Secretarial Letter issued December 23, 2016.
Finally, the affidavit outlines the additional steps that the Township must perform to complete the demolition and removal of the Bridge. These steps include:
- When the bid package is approved by PennDOT, it will be advertised. Advertising is expected to begin on March 30, 2017.
- Following the advertising, the bid project must be awarded and a Notice to Proceed must be issued. This process is expected to take three months.
- Construction must be completed. Construction is expected to take five months, and be completed by approximately December 31, 2017.
Id. at 4.
Notwithstanding the statement in the affidavit that construction is expected to be completed by approximately December 31, 2017, the Township requests that the Commission extend the deadline for complying with Paragraph No. 9 of the 1999 Order, as modified, from December 31, 2016, to December 31, 2018. Motion at 10.
Disposition
As amended by the August 2012 Order and the Settlement approved by the August 2014 Order, Paragraph No. 9 of the 1999 Order requiredthat the Bridge be demolished and removed at the initial cost and expense of the Township by December31, 2016. Based upon our review of the unopposedMotion and the supporting affidavit, we find that the Township has shown reasonable grounds for its failure to complete the work by that date. The Motion and supporting affidavit submitted by the Township demonstrate that the Township has not been idle on this matter and is moving the project forward. The requested extension to have the project completed by December31, 2018, would accommodate the anticipated construction schedule, and would include a reasonable time contingency to protect against further delays in the construction process, thereby possibly eliminating the need for a further extension of time by this Commission. Therefore, we will grant the requested extension.
Conclusion
Based on our review of the facts and the applicable law, we will grant the Motion and extend the deadline set forth in the 1999 Order and the Settlement, consistent with this Opinion and Order;THEREFORE,
IT IS ORDERED:
1.That Fairview Township’s Motion for Extension of Time to Comply with Paragraph 2 of the Commission’s August 2, 2012 Order, and Paragraph 14 of the Pennsylvania Public Utility Commission’s Stipulation and Settlement Document Dated June 14, 2014, filed on January 10, 2017, is granted.
2.That Ordering Paragraph No. 9 of the Opinion and Order entered herein on May 24, 1999, as previously modified, is further modified to read as follows:
9.That Fairview Township at its initial cost and expense, by December 31, 2018, demolish and remove the bridge carrying Mary Street over the tracks of the Reading, Blue Mountain and Northern Railroad Company in accordance with the approved plans.
3.That, in all other respects, the Opinion and Order entered May 24, 1999, as modified, remains in full force and effect.
4.That Paragraph 14 of the Stipulation and Settlement filed by Fairview Township, Luzerne County; the Public Utility Commission’s Bureau of Technical Utility Services; the Pennsylvania Department of Transportation; Luzerne County; Reading Blue Mountain and Northern Railroad Company; UGI Penn Natural Gas, Inc.; and Pennsylvania-American Water Company on July 14, 2014, and approved by Order entered August 21, 2014, is modified to read as follows:
14.The Bridge should be demolished and removed at the initial cost and expense of the Township. Removal will be completed by December 31, 2018.
5.That, in all other respects, the Stipulation and Settlement, and the Order entered August 21, 2014, shall remain in full force and effect.
BY THE COMMISSION,
Rosemary Chiavetta,
Secretary
(SEAL)
ORDER ADOPTED: March 2, 2017
ORDER ENTERED: March 2, 2017