PENNSYLVANIA
PUBLIC UTILITY COMMISSION
Harrisburg, PA 17105-3265
Public Meeting held June 2, 2005
Commissioners Present:
Wendell F. Holland, Chairman
Robert K. Bloom, Vice Chairman
Kim Pizzingrilli
Investigation upon the Commission’s I-00970069
own Motion to determine the condition,
disposition, and responsibility for maintenance
of the existing crossing structure carrying Mary
Street (T439) above-the-grade of the track of the
Reading, Blue Mountain and Northern Railroad
Company in Fairview Township, Luzerne County
(AAR 361 471S)
OPINION AND ORDER
BY THE COMMISSION:
Before the Commission for consideration and disposition is a Petition for Extension of Time (Petition), filed on February 14, 2005, by Fairview Township (Township). The Petition requests a twelve-month extension within which to complete the directives issued by the Commission in its Order entered herein on May 24, 1999.
Reading Blue Mountain & Northern Railroad Company (RBMN) filed a Reply to the Motion for Extension of Time (Reply). On March 14, 2005, the Township filed a Response to RBMN’s Reply.
History of the Proceedings
On October 6, 1997, the Commission initiated the above-captioned investigation. The Commission entered an Opinion and Order in this matter on May 24, 1999, which directed the Township to prepare, and submit to this Commission for approval, construction plans for the demolition and removal of the existing bridge carrying Mary Street over the tracks of the Railroad. The pertinent plans were to be submitted on or before May 24, 2001.
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 Paragraphs 7 and 8 of the Commission’s Order entered May24, 1999. The instant Petition was filed on February 14, 2005. On February 28, 2005, RBMN filed its Reply objecting to the Petition. On March 14, 2005, the Township filed a Response to RBMN’s Reply.
Discussion
Our Opinion and Order entered on May 24, 1999, contained the following pertinent Ordering Paragraphs:
7. That Fairview Township, at its initial cost and expense, within twenty-four (24) months from the date of service of this Opinion and Order, prepare and submit to this Commission for approval and to all parties of record for examination, a set of detailed construction plans for the demolition and removal of the existing bridge and the construction of a new bridge, including adjustments to the highway approaches, to carry Mary Street over the tracks of Reading, Blue Mountain and Northern Railroad Company. The structure is to be designed to present day design standards and be capable to carry existing legal loads.
8. That Fairview Township, at its initial cost and expense, within twenty-four (24) months from the date of service of this Opinion and Order, prepare and submit metes and bounds description of the railroad property, if any, to be appropriate for the construction of the project, subsequent to which the said property will be appropriate and in accordance with the provisions of Section 2702(b) of the Public Utility Code, 66 Pa. C.S.A. §2702(b).
We note that Section 1.15 of our Regulations, 52 Pa. Code § 1.15, confers upon us the authority and discretion to grant an extension of time. Section 1.15(a) provides, in pertinent part, as follows:
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 the 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.
52 Pa. Code § 1.15(a).
We note that since the issuance of our last Order, the Township has undertaken timely and good faith action to comply with our directives. As noted in previous Orders, the Township has retained the firm of Borton-Lawson Engineering, Inc. (Borton-Lawson) to prepare construction documents as required in Paragraphs 7 and 8 of the Order.
On March 16, 2004, the Township, through Borton- Lawson, received final approval of the Determination of Effect Report from the Pennsylvania Historic Museum Commission (PHMC). Subsequently, a Memorandum of Agreement was circulated to the Pennsylvania Department of Transportation (PennDOT), PHMC, and the Federal Highway Administration (FHWA) for signature.
On May 11, 2004, Borton- Lawson submitted a Programmatic Section 4(f) report to FHWA. Borton-Lawson had revised this report in accordance with comments received from PennDOT. While the PennDOT Central Office and its Engineering District 4-0 Office have already reviewed the Programmatic Section 4(f) report, FHWA has not yet approved it. Consequently, PennDOT has not been able to grant Environmental Clearance and Notice to Proceed for Part II – Final Design. PennDOT cannot grant Environmental Clearance and Notice to Proceed for Part II – Final Design without FHWA’s final approval of the Programmatic Section 4(f) report.
On September 21, 2004, Borton-Lawson received approval from PennDOT’s Engineering District 4-0 to conduct the Drilling Exploration Program for the purpose of determining bridge foundation design parameters. On February 8, 2005, Borton-Lawson completed the Drilling Exploration Program field work. Additional work to follow includes the testing of core samples in a laboratory, determination of foundation design parameters, and presentation of information in Geotechnical Foundation Report, which will be submitted to PennDOT’s Engineering District 4-0 for final approval.
The Township anticipates PennDOT will grant the Environmental Clearance and Notice to Proceed within one month of FHWA’s approval of the Programmatic Section 4(f) report. The Township asserts that all other submissions made to PennDOT have been satisfactorily completed and does not foresee any impediment to the advancement to Part II – Final Design.
Borton-Lawson anticipates being able to make its Ninety Percent Submission to PennDOT within approximately two months of when it receives the Environmental Clearance and Notice to Proceed. Township anticipates receiving PennDOT’s comments thirty days after the Ninety Percent Submission’s arrival. PennDOT’s comments will be incorporated into the Final Design within two months following their receipt.
We note at this time that RBMN filed objections to the Petition. RBMN’s objections to an extension are speculative and lack support for their assertions. We note further that the Township has been proceeding as expeditiously and as diligently as possible, given the submission review/approval process and the considerable time needed to obtain the approvals and environmental clearance necessary, as above outlined.
The Township has been advised by Borton-Lawson that, in light of the necessary approvals and clearances still outstanding, it is unlikely that the current May24, 2005 deadline for completion of design documents can be met. Under the circumstances and consistent with the criteria outlined above at Section 1.15 of our Regulations, we believe that it is reasonable, appropriate and in the public interest to grant the instant petition.
Conclusion
We have carefully reviewed the record as developed in this proceeding. Premised upon our review, we find that the Township’s Petition is meritorious. We admonish the Township to be diligent in completion of this project. No further extensions will be granted absent extenuating circumstances; THEREFORE,
IT IS ORDERED:
1. That the Petition for Extension of Time filed by Fairview Township on February 14, 2005, is granted consistent with this Opinion and Order.
2. That the previous deadline is extended by twelve(12) months, or until May 24, 2006, to allow time within which Fairview Township can accomplish the requirements set forth in Paragraphs 7 and 8 of the Commission’s Order entered May24, 1999, as previously extended by the Commission’s Order entered May 12, 2004.
3. That Ordering Paragraphs Nos. 7 and 8 of our Opinion and Order entered herein on May 24, 1999, are modified to read as follows:
7. That, on or before May 24, 2006, Fairview Township, at its initial cost and expense, prepare and submit to this Commission for approval and to all parties of record for examination, a set of detailed construction plans for the demolition and removal of the existing bridge and the construction of a new bridge, including adjustments to the highway approaches, to carry Mary Street over the tracks of Reading, Blue Mountain and Northern Railroad Company. The structure is to be designed to present day design standards and be capable to carry existing legal loads.
8. That, on or before May 24, 2006, Fairview Township, at its initial cost and expense,
prepare and submit metes and bounds description of the railroad property, if any,
to be appropriate for the construction of the project, subsequent to which the said property will be appropriate and in accordance with the provisions of Section 2702(b) of the Public Utility Code, 66 Pa. C.S.A. §2702(b).
4. That, in all other respects, our Order entered May 24, 1999, as amended, remains in full force and effect.
BY THE COMMISSION,
James J. McNulty
Secretary
(SEAL)
ORDER ADOPTED: June 2, 2005
ORDER ENTERED: June 3, 2005
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