PENNSYLVANIA

PUBLIC UTILITY COMMISSION

Harrisburg, PA 17105-3265

Public Meeting held March30, 2000

Commissioners Present:

John M. Quain, Chairman

Robert K. Bloom, Vice Chairman

Nora Mead Brownell

Aaron Wilson, Jr.

Terrance J. Fitzpatrick

Application of the Commonwealth of Pennsylvania, Department of Transportation, for approval of the alteration of the crossing, at grade, of State Route0403 and the tracks of Consolidated Rail Corporation, in East Mahoning Township, Indiana County (AAR148771R) / A00109417

OPINION AND ORDER

BY THE COMMISSION:

Before us for disposition is a Petition to Modify Order which purports to be a Petition for Extension of Time (Petition), filed by the Pennsylvania Department of Transportation (PennDOT) on October1, 1999, pursuant to 52Pa. Code§1.15. The Commission’s Bureau of Transportation (BTS) filed opposition to PennDOT’s Petition on October8, 1999.

History of the Proceeding

The Commission entered an Opinion and Order in this matter on March23, 1992, which directed alteration of the subject crossing. The Commission’s Order directed, among other things, that the flashing light signals at the crossing be modernized by installing new, automatically operated flashing light signals. The Commission directed that this work be completed on or before January30, 1993. As evidenced by PennDOT’s Petitions for Extension of Time, this work has never been completed.

On May25, 1993, PennDOT filed a Petition for Extension of Time alleging that the Buffalo and Pittsburgh Railroad (Railroad), then the operator at this crossing, had filed with the Interstate Commerce Commission (ICC) a request that the ICC permit the Railroad to discontinue its operation on the line. Therefore, PennDOT requested that the Commission grant an extension of time until June30, 1994, so that the ICC could enter an order in the proceeding and determine the status of the line.

By Order entered August4, 1993, the Commission granted PennDOT’s Petition and directed PennDOT and other Parties to complete the work on this project on or before June30, 1994.

Subsequently, the Commission referred this matter to the Office of Administrative Law Judge (OALJ). On April23, 1996, Administrative Law Judge (ALJ) RobertP. Meehan issued a Recommended Decision in this matter. The Recommended Decision incorporated the terms of a Stipulation of Settlement. In particular, the Parties stipulated that Consolidated Rail Corporation was then operating over the tracks owned by CSX Transportation, Inc. The ALJ recommended that the Commission extend the time within which to complete this project to June30, 1997.

By Order entered June14, 1996, the Commission adopted the Recommended Decision of ALJ Meehan and directed the Parties to complete work on this project by June30, 1997.

On September12, 1997, PennDOT filed another Petition for Extension of Time. In the Petition, PennDOT alleged that the crossing had not been used by rail traffic since February, 1997. PennDOT requested that the Commission grant an extension of time until June30, 1999, for the Parties to complete the work.

By Secretarial Letter dated December30, 1997, the Commission granted PennDOT’s Petition and directed that the Parties complete the work on this project on or before June30, 1999. The Petition now before us was filed on October1, 1999. On October8, 1999, the BTS filed a response with New Matter to PennDOT’s Petition.

Discussion

In its Petition, PennDOT proffers, in pertinent part, as follows:

4. The rail line which is the subject of this crossing is now operate[d] under a lease from CSX Transportation, Inc., to Consolidated Rail Corporation. Norfolk Southern Railway has taken the place of Consolidated Rail Corporation at this location.

5. The Department has been unable to obtain a commitment from Norfolk Southern Railway Corporation regarding the future plans for the rail line.

6. Due to the uncertain future of the crossing and the line, an inability of Norfolk Southern Railroad Corporation to give any commitment to the Department regarding future use of the line, Department is respectfully requesting a time extension until such time or definitively determined on this line.

7. The Public Utility Commission, Bureau of Transportation and Safety, Be directed to schedule a field conference with the appropriate railroads and that the Department of Transportation be invited and in attendance so that a discussion can be had regarding the future of the line and commitments, if necessary, made.

8. The Department respectfully requests that work ordered to be performed be held in abeyance until such time as the future of the line is determined and the railroads make a commitment regarding their need for this line and the crossing.

In light of the foregoing, PennDOT requests that our Order of June14, 1996, be modified consistent with its Petition.

The BTS opposes the grant of any further time extension in this matter. Furthermore, the BTS rejoins that scheduling a Field Conference in this proceeding will be inappropriate. Instead of a Field Conference, the BTS argues that this matter should be referred to the OALJ for the scheduling of a hearing. The BTS contends that PennDOT and the railroads involved should be afforded an opportunity to explain why they have not complied with the Commission’s previous Orders. The BTS also asserts that the Commission should consider the imposition of sanctions.

The BTS vehemently opposes the request of PennDOT that we stay or otherwise hold in abeyance our prior Orders in this proceeding. The BTS contends that PennDOT and the railroads have had more than adequate time to determine the need for this line and crossing.

Our review of the record indicates that, on March23, 1992, we issued an Order in this proceeding directing alteration of the subject bridge. Specifically, we directed that the flashing light signals at the crossing be modernized by installing new, automatically operated flashing signals. We note further that PennDOT was granted at least three(3) separate extensions of time within which to complete the work set forth in our Order.

Examining the totality of the facts and circumstances in this proceeding, we are not convinced that, at this juncture of the proceeding, scheduling a Field Conference is the best course of action to adopt. Rather, we believe that it is reasonable, appropriate and in the public interest to refer this matter to the OALJ for the prompt scheduling of such hearings as deemed appropriate, consistent with this Opinion and Order.

We shall direct the ALJ assigned to this matter to develop a complete record incorporating an explanation from PennDOT and the railroads involved as to the reasons for not complying with the Commission’s Order in a timely fashion. The ALJ should also examine whether the conduct of PennDOT and the relevant railroads constitutes a violation or violations of the Public Utility Code and our Regulations. The evidentiary hearing in this matter should be conducted as expeditiously as possible culminating in the issuance of a Recommended Decision; THEREFORE,

IT IS ORDERED:

1. That the Petition to Modify Order filed on October1, 1999, is denied, consistent with this Opinion and Order.

2. That this proceeding at Docket No.A00109417, be assigned to the Office of Administrative Law Judge for the prompt scheduling of such hearings as deemed appropriate, consistent with this Opinion and Order.

3. That in all other respects not inconsistent herewith, the Order of March23, 1992, shall remain in full force and effect.

THE COMMISSION,

James J. McNulty

Secretary

(SEAL)

ORDER ADOPTED: March30, 2000

ORDER ENTERED:

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