UPRR Leaves, Sort Of

Caltrain and Union Pacific have recently agreed on the terms of a deal for UPRR ceasing to operate freight trains on the peninsula, between Santa Clara (CP Coast) to San Francisco. This is not the end of freight, however. The Deal Terms Sheet (2MB PDF) outlines the process by which a smaller "Short Line" operator would take over the rights and obligations to continue serving rail freight customers on the peninsula. It also unravels a laundry list of contentious issues that pitted UP and Caltrain against each other. In summary, there are three phases to the deal:

1. The agreement recently entered into by Caltrain and Union Pacific, stipulating that:
• UP will start looking for a new short line freight service provider.
• Caltrain will ensure that short line locomotives with freight PTC can operate throughout CBOSS territory, a condition described as "unconstrained interoperability," a great pretext for more CBOSS program blowouts
• Caltrain will ensure that Caltrain rolling stock can operate on UP's freight PTC equipped Gilroy branch, or cease operating on the Gilroy branch.
• Caltrain agrees to never electrify UP's Main Track 1 from CP Coast (Santa Clara) through San Jose to CP Lick (south of Tamien), the land under which Caltrain owns.
• UP agrees not to object to the CPUC safety requirements (1.4 MB PDF) formally adopted on 10 November 2016 for Caltrain's electrification project.
• UP allows Caltrain's SSF station reconfiguration project to proceed, trading some old yard tracks and a loading dock for $2 million plus a new Caltrain-funded freight yard track at Newhall in Santa Clara.
• UP settles some old claims by Caltrain for track maintenance.
   
2. In the coming months, 
• UP will select a Short Line and obtain Caltrain's approval.
• Caltrain will sign a new trackage rights agreement with the short line.
• Caltrain will sign a new trackage rights agreement with UP that replaces the current trackage rights agreement, concerning the "South Terminal Area" around San Jose.
• The Surface Transportation Board will hopefully approve the whole deal, which is the entry criterion into phase 3.
   
3. Upon STB approval,
• Caltrain will own the "common carrier" obligations and be on the hook legally and financially for abandonment of freight service, should that ever be contemplated.
• The Short Line will own the common carrier obligations on the sidings and lead tracks not owned by Caltrain.
• UP will transfer to Caltrain the rights for intercity passenger service north of CP Coast in Santa Clara, but not south of there.
• UP will agree not to pursue legal action against the electrification project.

This agreement could open a tiny sliver of hope for building grade separations that are both cheaper and more community-friendly without stubborn opposition from UP. On the other hand, it gives no hope for relief from freight PTC interoperability, justifying additional costs that have not already been sunk in the bottomless pit that is CBOSS.

High Voltage Rulemaking Update

Caltrain mascot?
(photo by wwarby)

UPDATE 05 November 2014: HSR lawyers hang Caltrain out to dry by amending the scope of the rulemaking process explicitly to apply only to "25 kV electrification systems constructed in the State of California serving a high-speed rail passenger system capable of operating at speeds of 150 mph or higher, located in dedicated rights-of-way with no public highway-rail at-grade crossings and in which freight operations do not occur."  Could Caltrain possibly not have seen this coming?

ORIGINAL POST, 25 May 2014: Feathers are really starting to fly in the Public Utilities Commission proceeding to establish a regulatory framework for 25 kV railroad electrification in California, under CPUC docket number R1303009.  Electric utilities and freight railroads are putting up a big fight against the California High-Speed Rail Authority that threatens to leave Caltrain hanging out to dry.

With the impending electrification of the peninsula corridor clearly in mind, the freight railroads asserted in January comments that "it remains unclear if the proposed rules will be sufficient for high-speed train operation in shared rights-of-way” and that “[i]f the CHSRA does not amend its petition to clearly state the intended scope of the rulemaking, the Commission should order further workshops to ensure that the proposed rules are carefully vetted out for application in shared rights-of-way."

Freight railroads are concerned about a number of compatibility issues, including electromagnetic interference with their signaling systems and vertical clearance for their freight cars.  Electrification could impair vertical clearances especially under bridges.

The CHSRA's response, filed in late March, was crystal clear:

The purpose of these rules is to establish uniform safety requirements governing the design, construction, operation and maintenance of 25 kV ac (alternating current) Railroad Electrification Overhead Contact Systems (OCS) constructed in the State of California in right-of-ways dedicated solely to passenger use with no public highway-rail grade crossings and in which freight operations do not occur.

(...)

[The freight railroads] know that the proposed General Order is not ambiguous and that it will not apply to track where freight operations occur. Their continuing refusal to be satisfied on this point reveals a desire to delay and obstruct this proceeding.

The peninsula corridor, of course, meets none of these criteria.  It is not dedicated solely to passenger use.  It has numerous highway-rail grade crossings.  Freight operations occur daily.  The freight railroads are understandably worried about this issue of scope, given that the legislature has allocated more than a half-billion dollars of HSR funding to electrifying the peninsula corridor; Caltrain plans to complete the electrification project in just five years.

Where does that leave Caltrain?

1. No regulatory framework exists for Caltrain's electrification project
2. CHSRA is explicitly not planning to establish such a framework
3. The freight railroads are vigorously opposed to the idea
4. Time is running out

That leaves Caltrain with few options.

The Short Line Option

It has been suggested that the rulemaking process would be less contentious if a smaller "short-line" freight operator were to buy the trackage rights UPRR enjoys on the peninsula corridor.  Presumably, such a short-line operator would be less adversarial in the negotiation of a mutually agreeable regulatory framework and technical solution for electrification.

This scenario unfortunately fails to take into consideration the precedent-setting nature of placing 25 kV electrification over any track where freight operations occur, regardless of ownership.  The big freight railroads, UPRR and BNSF, will be no less interested in such a proceeding at the CPUC than if their own tracks were being electrified.

The Nuclear Option

Section 8.3.c of the trackage rights agreement with UPRR specifically allows for the wholesale abandonment of freight service on the peninsula, should Caltrain "demonstrate a reasonably certain need to commence construction on all or substantially all of the length of the Joint Facilities of a transportation system that is a significant change in the method of delivery of Commuter Service which would be incompatible with Freight Service."  While 25 kV electrification over freight trains doesn't seem to be such a big deal on the East Coast or the rest of the world, the freight railroads' arguments in the latest CPUC proceedings could be construed as a belief that 25 kV electrification is fundamentally incompatible with freight operations in California.  Do we really want to go there?

Whatever option is pursued, there is little doubt that the freight railroads will have a big hand in the outcome, and that lawyers and judges will be involved.  The freight railroads have clearly demonstrated that they have:

• Intimate familiarity with the intricacies of the CPUC rulemaking process
• Ready access to a deep bench of experts who can testify on any technical subject
• An army of well-paid lawyers

Caltrain will bring a knife to a gunfight if they don't get their act together soon.

Electrification Blues

While overhead electrification using 25,000 volts AC is a widespread technology that is even found in several states in the Northeast, it has never been used in California and the relevant regulations either do not exist or do not allow for it. Caltrain finds itself in the unenviable position of blazing a new regulatory trail, with little success to show thus far.

Regulatory Wild Ride

In 2007, Caltrain filed an application with the California Public Utilities Commission to have a new General Order established for 25 kV overhead railroad electrification. This application was backed by a draft standard and a series of workshops, and attracted participation from electric utilities and freight railroads. Caltrain later realized that the duration for establishing a new GO and only then applying under it for permission to build the project would not meet their schedule for completion by 2014. Despite an FRA reviewer stating that the draft standard was "96% of the way to the finish line," Caltrain withdrew its application, scrapped the draft GO, and decided instead to file for a waiver of existing rules on a project-specific basis.

In June 2009, Caltrain filed a new application requesting authority for variances from portions of CPUC General Order 95, which governs overhead electric line construction in California. This application was shared among interested parties including the Union Pacific Railroad and its key customers on the peninsula.

UPRR protested the application. Its protest brief listed the following issues:

1. Caltrain's proposed variances do not meet industry engineering standards. Among other items, UPRR states: "The issue of clearances is critical. Clearances determine, in part, the types of railcars that can be operated on a track and the types of loads that a car may carry."
   
   
2. Caltrain's proposed variances conflict with UPRR's legal rights and obligations as a common carrier freight railroad. UPRR contends that constraints on the types and loads of railcars would constitute a forced abandonment or partial abandonment of UPRR's peninsula operations, which requires approval from the federal Surface Transportation Board--and not the CPUC.
   
   
3. Caltrain's proposed variance would conflict with the trackage rights agreement established when the peninsula corridor was sold, especially the clauses concerning abandonment of freight service.
   

Caltrain folded immediately and withdrew its application, stating sheepishly:

Caltrain has learned that certain interested parties had more serious concerns with the Application than were anticipated. Rather than undertake discussion with such parties under the scheduling constraints of a Commission proceeding, Caltrain prefers to resolve these concerns separately and resubmit the Application at a later date.

In its protest, UPRR suggested the following timetable to resolve the issue:

• 1 September 2009 - Prehearing conference
• 14 October 2009 - Workshop re: engineering issues
• 9 December 2009 - Further prehearing conference
• 4 May 2010 - Hearing
• 15 July 2010 - Final decision

What this reveals, if nothing else, is that UPRR will vigorously defend its rights on the peninsula corridor, even without prodding from local residents who oppose HSR. This does not bode well for other regulatory changes that will be required, in particular a waiver of GO-26D to allow level boarding at station platforms--another move that is sure to attract a protest from UPRR.

Vertical Clearance Issues

The basic issue that underlies all this legal maneuvering is one of clearance dimensions, especially vertical clearances, where high-voltage overhead electrification infrastructure (contact wire, supports, etc.) might interfere with the operation of excess-height freight cars.

• UPRR and its customers (especially the Port of San Francisco) want the unimpeded future ability to operate so-called excess-height freight cars, such as autoracks and double-stack container cars, none of which currently operate on the peninsula north of Santa Clara.
• Such excess-height freight cars are up to 20'3" tall measured ATOR (above top of rail), with a recommended clearance of 23 ft ATOR for any obstacles such as bridges and tunnels.
  
• Caltrain's plans to electrify the peninsula showed the 25 kV contact wire at a typical vertical height of 23 ft (7.0 m) ATOR, in compliance with these recommendations.
• High-voltage wires require additional stand-off clearances (about 1 foot) to prevent arcing to trains or bridges, i.e. short circuits.
• The peninsula corridor has numerous bridges with clearances at or less than 23 ft ATOR (see graphic at right), where the overhead wire would get closer to the top of freight cars than the recommended clearance.
• Caltrain has proposed de-energizing the overhead electrification at night when freight trains operate. This might allow the wire to get down to about 21 ft ATOR (shown as a black dotted line in the graphic.)
  
• Electrification support infrastructure underneath bridges can take up several feet vertical clearance, especially when configured for high speeds (125 mph) where a single trolley wire is insufficient.
  
• Increasing vertical clearances under existing bridges and tunnels by undercutting the rail bed is often complicated by utility lines, culverts or creeks that pass under the tracks.

Clearly, excess-height freight cars will considerably complicate if not preclude electrification, and something will have to give.

The simplest solution, one that is in the best interest of the people footing the electrification / HSR bill (yes, that's you), is for Caltrain to file an application with the STB for a partial abandonment of freight service, resulting in a permanent restriction to AAR Plate F clearances (freight cars 17 ft ATOR, with overhead wire at 20 ft as shown by the green dotted line in the graphic above). This would not impede any of the current freight operations on the peninsula, and would facilitate the construction of trenches for certain grade separations in sensitive residential areas.

A Clash of Titans

Ultimately, Caltrain's role in this situation is secondary. The players who hold the cards are the UPRR, the California High Speed Rail Authority, and the Federal Railroad Administration. It is unclear if these players have any interest in the simple solution. Will they think about who should pay for this? Freight is and always will be a minority rail user on the peninsula, and it's hard to think of a reason why taxpayers should spend millions of dollars to buy UPRR and its customers complicated and maintenance-intensive solutions like movable overhead conductor rails or gauntlet tracks, especially when excess-height freight cars already have ample access to key regional facilities like the Port of Oakland.

We've already seen what gold plating for freight can do: expensive infrastructure is built on the taxpayer's dime for some hypothetical future need, and then languishes unused. Exhibit A is the Kelly Moore freight spur in San Carlos, which has yet to see its first freight car.

Atherton et al. Lawsuit Decided

The Honorable Michael P. Kenny has now ruled on Sacramento Superior Court case number 34-2008-8000022, better known as the Atherton lawsuit. The basics were discussed here a few months ago. Today's decision is a mixed bag, with some claims ruled in favor of the plaintiffs (Atherton et al.) and others in favor of the defendant (the California High Speed Rail Authority).

Summary of Ruling

The complete ruling can be downloaded from the Sacramento Superior Court's document server. Select 2008 (the year the lawsuit was filed), and enter the case number 80000022, then hit the search button. This will dredge up all the case documents, including the ruling dated August 26th, 2009. Here is a quick summary, with the plaintiffs' claims and the judge's respective rulings:

1. The CHSRA's Final Program EIR failed to provide an adequate description of the project between San Jose and Gilroy (on or near Union Pacific's right of way adjacent to Monterey Highway) before selecting the Pacheco alignment. Ruling: in favor of Atherton et al.
   
   
2. The CHSRA's cost estimates were inadequate and resulted in favoring the Pacheco alignment over the Altamont alignment. Ruling: against Atherton et al.
   
   
3. The CHSRA did not adequately consider "train-splitting" as an operational alternative that might make Altamont alignment operate as well or better than Pacheco alignment. Ruling: against Atherton et al.
   
   
4. The CHSRA's ridership analysis did not fairly evaluate the Pacheco and Altamont alignment alternatives, and was generally flawed. Ruling: against Atherton et al.
   
   
5. The CHSRA's analyses of biological impacts to the Grasslands Ecological Area (along the Pacheco alignment) and the Don Edwards National Wildlife Refuge (along the Altamont alignment) were inadequate, neither equal nor impartial, and lacking in detail. Ruling: against Atherton et al.
   
   
6. The CHSRA's analysis of growth-inducing impacts (a.k.a. sprawl) was inadequate for San Benito, Santa Cruz and Monterey counties. Ruling: against Atherton et al.
   
   
7. The CHSRA's analysis of noise impacts on the peninsula was inadequate. Ruling: against Atherton et al.
   
   
8. The CHSRA's analysis of vibration impacts on the peninsula was inadequate. Ruling: in favor of Atherton et al.
   
   
9. The CHSRA's analysis of visual impacts on the peninsula was inadequate. Ruling: against Atherton et al.
   
   
10. The CHSRA did not acknowledge the potential for extensive land taking (eminent domain) in peninsula communities. Ruling: in favor of Atherton et al. because of the related Union Pacific issue.
    
    
11. The CHSRA's analysis of impact to mature and heritage trees along the peninsula right of way was inadequate. Ruling: against Atherton et al.
    
    
12. The CHSRA's analysis of alternatives was improperly biased towards the Pacheco alignment, and improperly determined that Altamont alternatives were infeasible. Ruling: against Atherton et al.
    
    
13. The CHSRA improperly omitted the possibility of reusing the existing Dumbarton rail bridge for the Altamont alignment, and overstated the difficulty of constructing the Altamont alignment. Ruling: against Atherton et al.
    
    
14. The CHSRA's analysis of alignments along highways 101 and 280 on the peninsula was deficient and improperly eliminated those options. Ruling: against Atherton et al.
    
    
15. The CHSRA failed to amend and recirculate the EIR after Union Pacific forcefully reiterated its position that its right of way was not available. Ruling: in favor of Atherton et al.
    
    
16. The CHSRA failed to respond to Menlo Park's comment letter. Ruling: against Atherton et al.

Implications

While the plaintiffs will no doubt spin the favorable rulings on four of their contentions as a big victory, the fact remains that most of their contentions were found without merit, as evidenced by more red than green in the above summary. With Atherton et al. prevailing on this subset, largely on the back of the Union Pacific issue, some questions immediately come to mind.

Is the Pacheco Pass alignment being overturned in favor of Altamont? No. The CHSRA must now amend and recirculate its Bay Area to Central Valley EIR, in order to re-certify it under CEQA. The result is still likely to favor a Pacheco alignment, although the CHSRA will need to address in detail how it plans to circumvent Union Pacific's unwillingness to share its right-of-way.

Does this ruling stop HSR on the peninsula dead in its tracks? No. At worst, it may delay it a bit, possibly enough to miss the boat on federal stimulus funding.

Does this ruling prevent the CHSRA from continuing the San Francisco - San Jose project level EIR work, and will HNTB be told to stop work? Probably not. The work being performed at the project level could just as well be re-purposed to serve the "patching" of the program-level EIR. Tiering under CEQA allows a program-level EIR to be certified prior to project-level detailed work, primarily to relieve the agency preparing the material from having to delve into overwhelming detail too soon. However, that doesn't prevent the agency from going into more detail than is strictly required under CEQA for a program-level EIR, for example by continuing the project-level EIR work currently underway under the guise of fixing the program-level EIR.

What happens next? The program-level EIR will be amended, possibly with contingency material already prepared by the CHSRA as part of its project-level work on the San Francisco - San Jose section and especially the San Jose - Merced section, which includes the controversial stretch along Monterey Highway. The Union Pacific issue, now subject of an unrelated lawsuit, must be very high on the CHSRA's risk radar; it is very likely that mitigation of this risk would be well underway if not already completed.

Does this create another opportunity to sue? Yes. Once the amended EIR is re-certified under CEQA, there will be another opportunity for lawsuits, one which the increasingly entrenched HSR opposition is unlikely to pass up. Whether the entire EIR is back in play, versus just the amendments, is an important legal question that we won't pretend to answer here.

As always, keep in mind this is a blogger writing, not a lawyer. And pass some more popcorn around, will ya?