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oO PN DH FF Ye YH = NY NY BY NY NY YW NY RD RO mm mm ee a es eo NY DBD WH FF Ww Nn = CS OD Se DQ DH HW FF WY HY = Nn 0000211070 BEFORE THE ARIZONA CORPORATION COMMISSION COMMISSIONERS Asizona Corporation Commission JIM O°CONNOR — CHAIRMAN DOCKETED LEA MARQUEZ PETERSON ANNA TOVAR MAY 13 2024 KEVIN THOMPSON NICK MYERS DOCKETED BY IN THE MATTER OF THE APPLICATION OF DOCKET NO. RR-21275A-23-0305 MOUNTAIN STATES CONTRACT SWITCHING, LLC FOR APPROVAL FOR THE CONSTRUCTION OF A NEW INDUSTRY RAIL CROSSING ON 147% AVENUE BETWEEN NORTHERN AVENUE AND DECISION NO. 79346 ECHO LANE IN THE CITY OF GLENDALE, — ARIZONA (DOT #981 253P). OPINION AND ORDER DATE OF HEARING: March 14, 2024 PLACE OF HEARING: Phoenix, Arizona ADMINISTRATIVE LAW JUDGE: Marc E. Stern APPEARANCES: Mr. Brian M. Mueller, RUSING LOPEZ & LIZARDI, on behalf of Mountain States Contract Switching, LLC; Mr. Russ Romney, Office of the City Attorney, on behalf of the City of Glendale; and Ms. Bridget A. Humphrey, Staff Attorney, Legal Division, on behalf of the Safety Division of the Arizona Corporation Commission. BY THE COMMISSION: * * * * * * * * * * Having considered the entire record herein and being fully advised in the premises, the Arizona Corporation Commission (“Commission”) finds, concludes, and orders that: FINDINGS OF FACT l. On November 13, 2023, the City of Glendale, Arizona (“Glendale” or “City”) filed a letter that was inadvertently characterized as its Application with the Commission for approval of the construction of a new industry rail crossing on 147" Avenue which is being extended between Northern Avenue and Echo Lane in Glendale (DOT #981 253P). The letter described Glendale’s position with respect to the crossing and also included a copy of a letter from Mountain States Contract Switching, $:\Marc\railroad\2023\2303050&0.docx I! Co Ceo nN DD UH FF W HN — Nw NY NR NR NHB NY ND Rm meee oN BD UW FF WY NY =| SF 6 OBO KN DH HA FP Ww NY — S&S DOCKET NO. RR-21275A-23-0305 LLC (“MSC” or “Applicant”) which described MSC’s obligation for constructing, operating and maintaining the lights and gates of the at-grade crossing at issue. The letter from Glendale clearly states the City will be the road authority and not the operator of the crossing. Under those circumstances, it was clear that Glendale was not the Applicant. MSC is the Applicant, and the caption for this matter was revised to reflect the same. 2. On November 16, 2023, a Procedural Order regarding Consent to Email Service was issued. 3. On December 5, 2023, MSC filed a request to intervene in the proceeding, but this action was not required since it had been determined that MSC is a necessary party in the proceeding as the Applicant and not an intervenor. 4, On December 12, 2023, by Procedural Order, MSC was designated as the Applicant in this proceeding, and the City was designated as an Intervenor. 5. On January 12, 2024, the Commission’s Safety Division (“Staff”) filed its Staff Report which recommended approval of the Application. 6. On January 23, 2024, by Procedural Order, a hearing in this matter was scheduled to commence on March 14, 2024, and notice requirements and other procedural deadlines were established. 7. On February 16, 2024, a copy of the Notice of Publication was filed with the Commission. 8. On March 14, 2024, the hearing was convened before a duly authorized Administrative Law Judge (“ALJ”) of the Commission at the Commission’s offices in Phoenix, Arizona. MSC, the City, and Staff appeared with counsel. At the conclusion of the hearing, the matter was taken under advisement pending submission of a Recommended Opinion and Order to the Commission. 9. The Application requests the Commission’s approval for MSC to construct a new industry at-grade rail crossing which will extend from the tracks of the Burlington Northern Santa Fe Railway (“BNSF”) approximately one-half mile to the east to a new manufacturing facility which is being constructed and known as the Nestlé Dynasty Facility (“Nestlé”). Nestlé will manufacture Coffee mate creamer at its location in a development known as the Woolf Logistics Center (“Woolfe”). 2 DECISIONNO. 79346 Oo Oo NAD Hh F&F WY NY Ny NY BY YD NY NH NY NR RD mmm meme oN Hn Hn F&F WB NH —-— O° ' Ob BC ND WH SF Ww LS ol o DOCKET NO. RR-21275A-23-0305 10. The new crossing will be at-grade with active waming signals and gate units. 147" avenue is a public two-lane collector road under the authority of the City. According to the Application, 147 Avenue is under construction with a scheduled completion date of December 31, 2023 (Application 2). Il. The area in which 147" Avenue is being extended is presently rural farmland that is being developed as part of Woolfe. The Application indicates that the industrial project is being served by rail though an industry agreement between BNSF and MSC and the crossing is to make a roadway connection to Woolfe (Application 2). The BNSF’s tracks are about a half mile to the east of the new plant site for Nestlé. (Tr. 10) 12. Mr. Joseph Vern Van de Loo, the President of MSC, was involved in the preparation of the Application and testified for MSC (Tr. 15). He stated that MSC was a railroad design and construction company and also an industrial switching company that has been in business since 1983. (Tr. 8) 13. Mr. Van de Loo related that Nestlé is in the process of building a new manufacturing facility and that the construction of the industry track will enable Nestlé to bring its raw materials to its plant by rail. (Tr. 9) According to Mr. Van de Loo, completed products leaving the Nestlé plant will leave by truck and not by rail (Tr. 21) 14. Mr. Van de Loo testified that MSC agrees with Staff's conclusions and recommendations in the Staff Report. (Tr. 17) 15. Mr. Van de Loo indicated that the safety measures to be constructed at the at-grade crossing will be consistent with similar crossings in Arizona. (Tr. 18) 16. The crossing is expected to cost approximately $400,000. (Tr. 18) 17. Mr. Vande Loo further stated that MSC is working as a subcontractor to Boldt, a general contractor for Nestlé. (Tr. 20) 18. The City did not present any testimony. 19. Mr. Jason Pike, a Grade Crossing Inspector for the Commission, was assigned to evaluate MSC’s Application and prepared the Staff Report. (Tr. 23) 20. Mr. Pike testified that the at-grade crossing at 147" Avenue does not meet any of the 3 DECISIONNO, 79346 Co Oo KN DH UW F&F WY HY — NY NM NY BY BY NY BD NO eee aon Dn WH FF Ww NY |$§ FS 6G Oo KN DH FF Ww VY S| S&S DOCKET NO. RR-21275A-23-0305 criteria for grade separation and there is no traffic involving hospitals or schools in the area. (Tr. 24} 21. Mr. Pike further stated that only 40 railcars a week will be transported to the plant to provide it with raw material for the manufacture of Nestlé’s products. (Tr. 26) The Staff Report indicates that the City estimates that in 2027, 710 vehicles per day will use the crossing. 22. Mr. Pike indicated that the safety measures being constructed at the 147" Avenue crossing by MSC are consistent with similar at-grade crossings in Arizona. (Tr. 25) 23. Mr. Pike further testified that maintenance of the crossing will be the responsibility of MSC as would the signals related to the crossing. The roadway will be maintained by the City. (Tr. 27) 24. According to Mr. Pike, the crossing is in the public interest and he is recommending the Commission’s approval of this crossing. 25. Mr. Pike indicated that 12 months would be a sufficient amount of time to complete construction of the at-grade crossing at 147°" Avenue by MSC. (Tr. 27) Conclusion 26. Based on the record, the proposed construction of the at-grade crossing as described in the Application and as supported by Staff's recommendations are reasonable and appropriate and should be adopted. CONCLUSIONS OF LAW 1. The Commission has jurisdiction of the parties and the subject matter of the Application pursuant to Article XV of the Arizona Constitution and Arizona Revised Statutes (“A.R.S.") § 40-336, 40-337, 40-337.01. 2. Notice of the Application was provided in accordance with the law. 3. The construction of the at-grade crossing is necessary for the public’s convenience and safety. 4. Pursuant to A.R.S. § 40-336 and 40-337, the Application should be approved as recommended by Staff. 5. Upon completion of the at-grade crossing of 147" Avenue as described herein, MSC shall maintain the crossing in accordance with A.A.C. R14-5-104. 79346 4 DECISION NO. a DO UN 10 iT 12 13 14 15 DOCKET NO. RR-21275A-23-0305 ORDER IT IS THEREFORE ORDERED that the Application of Mountain States Contract Switching, LLC., as described herein is hereby approved. IT IS FURTHER ORDERED that Mountain States Contract Switching, LLC shall complete the at-grade crossing as discussed in the Application and the Staff Report within 12 months of the effective date of this Decision. IT IS FURTHER ORDERED that Mountain States Contract Switching, LLC shall notify the Commission’s Safety Division, in writing, within 10 days of both the commencement and completion of the at-grade crossing, pursuant to A.A.C. R14-5-104, 16}... 17 18 19 20 21 22 23 24}... 25 26 27 28 5 DECISIONNo, 78346 ou Oo HN DH F&F WN DOCKET NO. RR-21275A-23-0305 IT IS FURTHER ORDERED that upon completion of the construction of the at-grade crossing Mountain States Contract Switching, LLC shall maintain the crossing in compliance with A.A.C. R14- 5-104. IT IS FURTHER ORDERED that this Decision shall become effective immediately. BY ORDER OF THE ARIZONA CORPORATION COMMISSION. HAIRMAN O’CONNOR ISSIONER MARQUEZ PETERSON oe yy VA COMMISSIONER TOVAR COMMISSIONER THOMPSON COMMISSJONER MYERS IN WITNESS WHEREOF, I, DOUGLAS R. CLARK, Executive Director of the Arizona Corporation Commission, have hereunto set my hand and caused the official seal of the Commission to be affixed at the Capitol, in the City of Phoenix, this (ayn day of J 2024. DOUGLAS R. CLARK EXECUTIVE DIRECTOR DISSENT DISSENT MS/(gb) 6 DECISION No, 79346 oO fo YN DH F&F WHY = NY NHN NY N NY NY NO NN Om mm me eee ao 4 DBD HY FF YW Nn —|— FD GBD 6 DH DBD HA BF W NH —| CS SERVICE LIST FOR: DOCKET NO.: RR-21275A-23-0305 Brian M. Mueller 6363 N. Swan Riad, Suite 151 Tucson, AZ 85718 Attorney for Mountain States Contracting, Inc. Jonathan M. Saffer MOUNTAIN STATES CONTRACTING, INC. 4001 S. 34" Street Phoenix, AZ 85040 Tony S. Abbo, P.E., PTOE City Traffic Engineer Transportation Department 6210 W. Myrtle Ave #112 Glendale, AZ 85301 tabbo@glendaleaz.com Consented to Service by Email Russ Romney, Office of the City Attorney 5850 W. Glendale Avenue, Suite 450 Glendale, AZ 85301 Attorney for the City of Glendale, Transportation Department RRomney@glendaleaz.com Consented to Service by Email Legal Division ARIZONA CORPORATION COMMISSION 1200 West Washington Street Phoenix, AZ 85007 LegalDiv@azcc.gov cwatson(@azcc.gov Consented to Service by Email DECISION NO. MOUNTAIN STATES CONTRACTING, INC. 79346