Getting the go-ahead from the state utility regulators for a railroad safety project is a fairly straightforward process: Submit plans and then wait for their approval before starting work, according to the Arizona Daily Sun. But that is not what the city of Flagstaff, Ariz., did as it began construction work in Flagstaff related to the silencing of passing train horns, says Arizona Corporation Commission Chairwoman Kris Mayes.
"The cause of the delay in this case is the decision by someone to proceed with a construction of the crossing upgrades," Mayes said. "We have rules and regulations that require road authorities and railroads that want to make changes to crossings to get approval from the commission before they do it."
City Manager Kevin Burke said the city and BNSF are working in virgin territory – that no city has built a quiet zone in Arizona and the procedures governing such a project were not clear.
The city started construction related to the quiet zones in January, said City Engineer Rick Barrett, while BNSF has not yet performed any construction for which they are responsible.
The only other city in Arizona with quiet zones is Surprise, which modified its only crossing by adding flashing lights, audible electric bells, traffic signs and a pedestrian sidewalk maze with warning signs. Surprise did not need ACC approval because it did not add barriers or wayside horns to the crossing.
The Arizona Corporation Commission’s responsibilities differ from those of similar agencies in some other states, which do not oversee railroad safety.
Burke said the city was working with BNSF under the premise that crossings were solely under the purview of the Federal Railroad Administration.
In filings with the ACC, Senior Assistant City Attorney David Womochil argued that the state agency issued a memo in late March that it "generally supports" the City’s creation of a quiet zone when reviewing proposed changes to the Steves Boulevard and Fanning Drive crossings. The ACC was part of a "diagnostic team" the city consulted as it designed safety measures for the quiet zones.
Attorneys for BNSF contended that the establishment of quiet zones and the safety measures utilized at grade crossings are addressed by federal law that would pre-empt any state law.
But Mayes contends that the city and BNSF would have known they needed to formally go before the commission for approval before starting construction changes because they had gone before the ACC for previous railroad-related projects.
According to the ACC, the city of Flagstaff has asked the Commission twice in the last five years for approval for changes to railroad crossings, one to construct on overpass at Fourth Street and a second to widen a portion of Enterprise Road.
Mayes said the agency has, in the past, fined other railroads for proceeding on construction that hasn’t been approved by the ACC.
"Union Pacific Railroad went forward with building a change to a crossing without commission approval, and we fined them $50,000," Mayes said. "We take the law very seriously, and whether it’s a city or a railroad we want to make sure they get commission approval before they move forward."
Mayes said she could not predict whether the city or BNSF would be fined. She did, however, say the city would be much closer to a final decision if it had followed proper protocols.
The city was within weeks of finishing the project, but now it and BNSF must attend a hearing July 8 before an administrative law judge in Phoenix.