ALJ/KK2/jt2 Date of Issuance 10/22/2018

Decision 18-10-020 October 11, 2018

BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Order Instituting Investigation on the Commission’s Own Motion into the Fatal Accident on the Bay Area Rapid Transit District's Line between the Walnut Creek and Pleasant Hill Stations in the County of Contra Costa, California on October 19, 2013.

Investigation 16-06-010

DECISION REGARDING ALLEGED VIOLATIONS BY SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT RELATING TO THE

OCTOBER 19, 2013 FATAL ACCIDENT

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Table of Contents

Title Page

DECISION REGARDING ALLEGED VIOLATIONS BY SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT RELATING TO THE OCTOBER 19, 2013 FATAL ACCIDENT..................................1Summary...............................................................................................21. Background and Procedural History...............................................6

1.1. Overview...................................................................................61.2. Procedural History....................................................................71.3. Undisputed and Otherwise Proven Facts Relating to the

Accident..................................................................................121.3.1. Pre-Accident..................................................................131.3.2. The Accident.................................................................171.3.3. Post-Accident................................................................231.3.4. Corrective Actions.........................................................231.3.5. SED’s and BART’s Investigation Reports.....................25

1.4. NTSB’s NDA............................................................................251.5. NTSB Investigation and Accident Brief..................................27

2. Legal and Regulatory Framework.................................................302.1. Constitutional and Statutory Authorities................................302.2. Federal Delegated Authorities................................................322.3. General Orders........................................................................322.4. General Orders 175 and 175-A and Commission’s Safety

Policy Statement.....................................................................353. Burden of Proof and Standard of Proof.........................................384. Discussion......................................................................................39

4.1. Commission’s Authority to Impose Fine and Other Remedies39

4.2. Summary of Violations and Assessed Fine.............................404.2.1. BART Manager and Trainer Repeatedly Used His Cell

Phone in Violation of BART’s Safety Rules and GO 172.......................................................................................41

4.2.2. BART Manager and Trainer Failed to Directly and Properly Supervise Trainee..........................................44

4.2.3. BART Managers (Both Trainee and Trainer) Failed to Sound the Train Horn Prior to the Accident.................47

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Table of Contents (Cont’d)

Title Page

4.2.4. BART Manager and OCC Center Operator Failed to Give Notice of the Presence of Wayside Workers Via the ATIS Warning Notice at the Bottom of the Hour As Required.......................................................................................50

4.2.5. BART Manager (Wayside Worker) Violated Simple Approval Rule................................................................52

4.2.6. BART Manager (Wayside Worker) and Contractor (Wayside Worker) Failed to Comply with BART’s Safe Clearances When Using the Metal Track Gauge Between the Rails of the BART Trackway....................56

4.2.7. BART Failed to Submit a Timely and Adequate Investigative Report......................................................58

4.2.8. Five BART Managers and Senior Level Employees (Train Operator Trainees and Observers) Violated GO 172 Zero Tolerance Policy......................................62

4.2.9. BART Failed to Ban Simple Approval During the Strike.......................................................................................66

4.3. Three-year Probation..............................................................694.4. Reasonableness of Fine and D.98-12-075 Analysis.................73

4.4.1. Severity of Offense........................................................754.4.2. Conduct of the Utility....................................................784.4.3. Financial Resources of the Utility.................................794.4.4. Comparisons to Prior Commission Decisions...............814.4.5. Totality of the Circumstances.......................................86

4.5. BART’s Arguments..................................................................894.5.1. Adequate Notice of § 451 Allegations...........................894.5.2. Violation of § 451 Can be a Stand-alone Violation.......934.5.3. Violation of BART’s Internal Rules May Serve as Basis

for Fine...............................................................................97

5. Conclusion...................................................................................1016. Rulings.........................................................................................102

6.1. SED’s Request to Admit Exhibit SED 30 is Granted.............1026.2. BART’s Motion to Strike SED’s 17-Page Closing Brief is

Granted, in part....................................................................................102

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Table of Contents (Cont’d)

Title Page

6.3. This Decision Confirms All Prior Rulings..............................1057. Appeals........................................................................................105

7.1. SED’s Appeal.........................................................................1057.2. BART’s Appeal.......................................................................107

7.2.1. BART’s Late Filing of Investigation Report................1087.2.2. BART’s Constitutional Arguments..............................1097.2.3. BART’s Application of Prior Commission Decisions. . .1207.2.4. BART’s Arguments Against Fine for Employee

Violations.....................................................................1207.3. Clarifications and Minor Corrections...................................121

8. Explanation of Changes to the POD............................................1219. Assignment of Proceeding...........................................................121Findings of Fact................................................................................121Conclusions of Law...........................................................................132ORDER....................................................................................................

139

Attachment A – National Transportation Safety Board Urgent Rec R-13-39 - 40Attachment B – National Transportation Safety Board Railroad Accident Brief

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DECISION REGARDING ALLEGED VIOLATIONS BY SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT RELATING TO THE

OCTOBER 19, 2013 FATAL ACCIDENT

SummaryOn October 19, 2013, a San Francisco Bay Area Rapid Transit

District (BART) train struck and killed two workers who were working on the BART tracks between the Walnut Creek and Pleasant Hill stations in the County of Contra Costa (Accident). Christopher Sheppard, a BART manager,1 and Laurence Daniels, a contractor for BART, were the two workers who lost their lives. At the time of the Accident, the incident train was being operated by a trainee operator, Richard Burr; and he was also a BART manager.2 Mr. Burr was working under direct supervision of a train operator trainer, Paul Liston; and Mr. Liston was also a BART manager,3 in charge and control of the incident train.

On June 28, 2016, the Commission issued the above-entitled Order Instituting Investigation and Order to Show Cause (OII/OSC) against BART to begin a formal investigation of BART’s role concerning the Accident. Following a thorough review of the evidence, on October 6, 2017, a presiding officer’s decision (POD) was issued to resolve the OII/OSC. The POD found that BART, through its

1 Christopher Sheppard is identified as a “manager of BART Track and Grounds at Oakland Shops” on Exh. SED 2 (BART Police Report) at 104 of 112.2 Trainee, Richard Burr, is described as a veteran BART employee having been with BART for 20 years and the Manager in Planning and Training on Exh. SED 2 at 51 of 112.3 Trainer is self-described as a 17-year veteran of BART, and a high level manager, BART’s Assistant Chief Transportation Officer, overseeing the training and also implementing the safety corrective actions as evidenced in the record (Exh. SED 2 at 50 of 112) and overseeing all of BART’s approximately 80 train operators (Exh. SED 22 at 7:18-25).

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management as well as several of its veteran managers and senior level employees, has violated multiple safety rules and requirements and that some or all of the violations we found likely contributed in some manner to the Accident. The POD also found that these are serious and egregious violations, particularly in view of the fact that some were violations committed by BART’s high level veteran managers and other senior level employees, reflecting BART’s organizational and management culture and attitudes. Moreover, the POD found that these violations further constitute violations of Pub. Util. Code § 451, which requires “instrumentalities, equipment, and facilities” necessary to promote the safety, health, comfort, and convenience of its patrons, employees, and the public. Based thereon, the POD assessed a fine of $659,000, stayed two thirds of the assessed fine and placed BART on three-year probation.

The Commission’s Safety and Enforcement Division (SED) and BART each filed an appeal to the POD. Today and upon careful deliberation of the pending appeals and reconsideration of the voluminous record in this proceeding, we issue this decision different pursuant to Pub. Util. Code § 1701.2(e) (Decision). This Decision generally affirms the findings in the POD. We however issue this Decision, because we strongly believe the well-supported findings here justify a higher fine.

We remind BART that its System Safety Program Plan, in effect at the time of the Accident, and certified by BART’s top management and approved by the Commission, provides in part:

… Accountability for safety rests with each employee, supervisor and manager. All are responsible for meeting the safety requirements inherent to their positions. Individual employees must comply with

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the safety rules and procedures applicable to their work duties. Supervisors and managers must enforce safety standards applicable to their departments and are ultimately responsible for safety within their domain. [Emphasis added.]

We also remind BART that BART’s high level management’s and senior level employees’ breach of this commitment, in large part, is why we elevated this matter to be reviewed in this formal Commission proceeding rather than a staff-level citation process.

Today, based on our reconsideration of the record of this proceeding, this Decision orders BART to pay a total fine of $1,348,000 and simultaneously stay one half of the assessed fine, on condition that BART remains in compliance with the directives set forth in this Decision. In lieu of the stayed fine, this Decision also places BART on probation for three years, during which, BART shall:

(1) Post at least one sign, no smaller than 14” by 18” in dimensions, at each of its station which states (a) the Commission has found that BART has violated safety rules; (b) the Commission has assessed a fine of $1,348,000 for the safety violations; and (c) the Commission has stayed one half of the fine on condition that BART complies with the Decision and improves its safety rules as ordered;

(2) Track and submit to the Commission’s Director of SED by January 30 of each year, its annual report of all violations of safety rules, practices, policies or procedures and details of corrective actions taken including disciplinary actions (local, state, federal, internal and external safety rules), including violations similar to those found in this proceeding;

(3) Reevaluate its current safety training programs and culture and devise and begin implementing a plan to improve the effectiveness of its current safety training programs and methods of improving its safety culture throughout the organization;

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(4) Develop and implement annual safety rules, practices, policies, procedures and culture refresher courses for all of its managers and senior employees who are entrusted to comply with and/or enforce worker safety rules, practices, policies, procedures and/or culture, of no less than 40 hours, and annually submit certifications for each manager and senior employee who completed the refresher; and

(5) Appear, annually, before the Commission to brief the Commission on its annual safety report and all updates on its efforts to continually improve its safety culture and enhanced compliance with all of the applicable safety rules, practices, policies and procedures and to avail itself to questions by the Commissioners.

During the probationary period, the Commission’s SED shall, inter alia, monitor BART’s compliance and recommend to the Commission’s Executive Director of any and all safety violations or non-compliances with this Decision by BART and any attendant recommended Commission actions, if any, against BART. Such recommendation(s) may include recommendation to:

(1) Institute any Order Instituting Investigation and Order to Show Cause (OII/OSC) why the Commission should not extend the probationary period, reinstitute the stayed portion of the fine ($674,000) and/or impose additional fine and/or additional corrective actions (in addition to the reinstitution of stayed portion of the fine and corrective actions ordered in this Decision) for serious or egregious safety violations or non-compliances with this Decision; and/or

(2) Issue one or more citations through its Resolution ST-163 authority to cite BART for less serious non-compliances as appropriate by SED. In addition, if SED’s monitoring reveals cause for extension of the probationary period, SED must prepare and file SED’s final recommendation on whether BART’s probation should be extended beyond three years with

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justifications of its recommendation based on information SED has acquired during its monitoring and oversight activities.

During the probationary period, the Commission’s Executive Director is authorized and shall review SED’ report(s) and recommendation(s) of any and all safety violations or non-compliances with this Decision by BART and any attendant recommended Commission actions against BART. The Executive Director then shall determine whether there is sufficient ground to pursue further Commission actions (e.g. OII/OSC or one or more citation(s)) against BART. This Decision also authorizes the Executive Director to take all action necessary and appropriate to initiate one or more OII/OSC or citation process as the circumstances justify.

The probationary period expires in three years from the issuance of this Decision, unless (1) the Commission extends this probationary period before its expiration based on good cause shown during the probationary period or (2) the probationary period is otherwise extended due to pending OII/OSC(s) or citation(s.)

BART shall pay $674,000, the one half of the total assessed fine, to the State’s General Fund in three annual payments with the first payment of $224,666.67 due 60 days from the effective date of this Decision, the second payment of $224,666.67 due one year from the effective date of this Decision, and the third payment of $224,666.66 due two years from the effective date of this Decision. This Decision closes the proceeding.

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1. Background and Procedural History

1.1. OverviewOn October 19, 2013, a manager of and a contractor for San

Francisco Bay Area Rapid Transit District (BART) were struck and killed by a BART train in Contra Costa County (Accident). At the time of the Accident, another BART manager was supposed to be in charge of the incident train as the train operator trainer (Trainer), and under said Trainer’s supervision, the incident train was being operated by a trainee operator (Trainee), who was on his first day of on-the-job training.

Following the Accident, the Commission’s Safety and Enforcement Division (SED) became a party to the investigation of the Accident led by the National Transportation Safety Board (NTSB). NTSB pulled together a joint inspection team (NTSB, BART, Commission, and the Division of Occupational Safety and Health (DOSH) of the California Department of Industrial Relations) and performed on-site inspections and reenactments. This team also interviewed all witnesses separately and in great depth. The team examined the in-cab video, which was facing Trainee and the inside of the incident train cab. The in-cab video recording was both in video and audio formats. A transcript of the audio portion was prepared by NTSB, as part of its investigative record. Much of the investigatory activities led by the NTSB’s joint investigation team took placed within days and months immediately following the Accident.

On April 13, 2015, the NTSB’s accident brief on the Accident was published (NTSB Accident Brief). In March of 2016, SED finalized its

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final report on its investigation into the Accident (SED’s Final Report) and presented it to the Commission.4

1.2. Procedural HistoryBased on SED’s Final Report, on June 28, 2016, the Commission

issued the above-entitled Order Instituting Investigation and Order to Show Cause Why the Commission Should Not Impose Appropriate Fines and Sanctions (OII/OSC). This OII/OSC initiated the formal investigation of BART regarding the Accident. Along with this OII/OSC, the Commission served SED’s Final Report on BART. BART filed its initial response to the OII/OSC on August 8, 2016 and then filed an amended response on August 30, 2016. BART and SED are the only parties to this proceeding.

SED is a Division of the Commission charged with enforcing compliance with the Pub. Util. Code5 and other utility and transit safety standards and laws, as well as the Commission’s rules, regulations, orders and decisions. BART is a public utility and a common carrier subject to the Commission’s jurisdiction, inter alia, under the Pub. Util. Code and additional delegated federal safety oversight authorities.

BART is a local government transportation agency composed of representatives from Alameda, Contra Costa, San Francisco, and San Mateo Counties and is subject to the Commission’s safety oversight.6

The scope of this proceeding was preliminarily set in the herein OII/OSC. On October 11, 2016, the Commission held a prehearing 4 Law and Motion Hearing Tr. at 15:2-8. According to the SED’s counsel, SED secured a copy of the in-cab video of the Accident in March of 2016. 5 All statutory references in this Dare to Cal. Pub. Util. Code, unless otherwise specified.6 Sections 29047 and 99152 and 49 Code of Federal Regulations (C.F.R.) Part 659, et seq.

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conference on this matter to identify the parties and to review the scope, the schedule, and other procedural matters. The parties were directed to meet and confer and file a joint proposed proceeding schedule by October 18, 2016. A joint proposed schedule was filed by the parties on October 18, 2016 and adopted in the Assigned Commissioner’s Scoping Memo Ruling dated December 8, 2016, which also set forth the scope of the proceeding and confirmed that the central focus of the OII/OSC is on the Accident, the circumstances surrounding the Accident and BART’s role relating to the Accident, including:

A. Whether BART:(1) Violated and/or repeatedly violated state

codes and regulations by failing to provide adequate protection of BART’s wayside workers;

(2) Violated and/or repeatedly violated state codes and regulations by failing to adequately train and control the Train Operator and Train Operator Trainer on Train #963 on October 19, 2013; and

(3) Should be assessed fines and/or sanctions for violations of any applicable safety rules and regulations.

B. Whether ART misled the Commission, including SED and SED staff (Commission Staff), by artifice or false statement in such manner as to violate Rule 1.1 of the Commission’s Rules during any of its dealings with the Commission at or near the time of the October 2013 strike (Strike), including but not limited to:(1) Failing to correct or update the list of safety

personnel who would operate BART trains during the Strike;

(2) Failing to obtain Commission Staff approval prior to train operations during the Strike; and

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(3) Operating BART trains by uncertified, untrained, and unapproved personnel during the Strike.

C. If it is found that BART violated Rule 1.1 of the Commission’s Rules, we will determine whether BART should be fined, and if so how much, or otherwise assess an appropriate penalty for such violation.

D. What are BART’s safety culture and accident prevention procedures?

E. Whether BART’s safety culture and accident prevention procedures contributed in any way to the Accident. If so, how?

Throughout the proceeding and in its opening brief, SED repeatedly attributed much of its nearly three years of delay in finalizing SED’s Final Report on two reasons. First, SED explained that it was prohibited by NTSB’s non-disclosure agreement (NDA), signed by all parties to the NTSB investigation including BART and SED, from releasing information relating to the Accident until the release of NTSB Accident Brief in April of 2015. Second, SED explained that while SED had all evidentiary bases for SED’s Final Report as of April of 2015 (when NTSB released its April 2015 Accident Brief), SED waited 11 more months to finalize SED’s Final Report, stating that “the in-cab video was not provided by BART, the owner of the video, until March 1, 2016.”7

BART also contends that it signed the NDA and this NDA prohibited BART from releasing information relating to the Accident until NTSB’s April 2015 Accident Brief release. BART then waited nearly 20 more months, after April of 2015, to finalize and submit its

7 Law and Motion Hearing Tr. at 15:2-8 and SED’s Opening Brief at 1.

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investigation report of the Accident, claiming, in part, that SED did not ask BART to submit it.8

After the discovery deadline passed and just days before the start of the hearing (dates SED and BART jointly proposed as their proposed schedule), it came to light that SED had woefully neglected its discovery duties, failed to exercise diligence in identifying and disclosing allegations of violations and failing to produce evidence to BART to review and prepare its defense. During the law and motion hearings held on February 1 and 3, 2017, it was confirmed that: (1) SED for nearly six months failed to reasonably and diligently discover and produce e-mails between BART and SED concerning certain events leading to the Accident; (2) SED failed to employ a system of preserving such critical e-mails; (3) SED failed to timely object to the supposed oppressive and burdensome nature of producing such e-mails; and (4) SED failed to timely oppose BART’s two motions in limine seeking such sanctions.

Therefore, on February 9, 2017, the assigned Administrative Law Judge (ALJ) issued a ruling sanctioning SED (February 9, 2017 Ruling). In it, the ALJ:

(1) Admonished SED for its abusive prosecutorial tactic of continually attempting to add, at the eve of hearing, additional claims of alleged violations by, inter alia, phone conversations, discovery response, document production, etc. without end in sight for this pattern of behavior;

(2) Admonished SED for its discovery failures, including failure to conduct reasonable and diligent discovery and failure to timely produce documents relating to some of its allegations; and

8 BART’s Opening Brief at 5-6.

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(3) Sanctioned SED by denying its presentation of any further previously not identified evidence of the alleged safety violations obtained during discovery.

SED was, therefore, precluded from continually and incrementally adding more allegations nor to present evidence of previously unidentified allegations of violations, in other words, “evidence concerning claims not properly at issue” because those issues were:

(1) Not identified in the OII/OSC or SED’s Final Report, not within the Scoping Memo of December 8, 2016, not identified in SED’s data/discovery responses, and not identified in SED’s tardy pre-hearing brief served on February 2, 2017; and/or

(2) Issues for which BART was deprived of adequate prior notice and opportunity to conduct discovery and prepare defense.

These sanctions against SED (for these tactics) were necessary to ensure a fair hearing and to protect BART’s due process rights to have adequate notice of allegations and to prepare its defense thereto.9

Evidentiary hearings were held February 13, 14 and 15, 2017. The issue preclusion sanctions, set forth in the February 9, 2017 Ruling, were periodically confirmed throughout the course of the evidentiary hearings, and SED was precluded from introducing evidence on those claims of violations for which BART was not afforded adequate notice and due process. This meant that SED could not present evidence or add new claims, if SED had not previously presented it/them to BART before. Specifically, SED was precluded

9 ALJ’s Ruling Addressing All Pending Motions, Including the Two in Limine Motions, dated February 9, 2017.

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from introducing any evidence on Scoping Memo Ruling issues B(1), B(1),(2), (3) and C for which SED failed in its discovery duties.10

Post-hearing briefs were filed on March 14 and 28, 2017.  Then from March 29, 2017 to September 7, 2017, there was a series of post-hearing motions and rulings.

On October 6, 2017, a presiding officer’s decision (POD) was issued to resolve the OII/OSC. The POD assessed a fine of $659,000, stayed two thirds of the assessed fine and placed BART on three-year probation. SED and BART each filed an appeal to the POD.

1.3. Undisputed and Otherwise Proven Facts Relating to the Accident

The details of the Accident and the circumstances surrounding the Accident are largely undisputed or otherwise proven in this case. We note, BART’s counsel has argued that there is no evidence that the alleged violations involved actions of its managers. As discussed below with citations to the evidentiary record in this proceeding, its own BART Police Report and NTSB Interview Transcripts (both admitted into the record of this proceeding by parties’ stipulation) make it clear that the individuals at the heart the discussion below and alleged violations were managers of BART with lengthy experiences and positions of significant authorities over many of BART employees.

1.3.1. Pre-Accident At the time of the Accident, BART’s unions were on their second

strike of that year -- 2013.11 Following the first strike earlier that year and leading up to the Accident, BART met with some of the SED staff

10 Ibid.11 Exh. SED 55 at 4:6-11.

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to review its strike contingency plans.12 BART’s contingency plans, in general, envisioned having some of its management personnel perform BART’s essential system maintenance and operation functions, in the event of a second strike. This plan also envisioned that BART would open a limited revenue service with some of its trained managers operating the trains between Oakland and San Francisco.

As part of that plan, BART identified managers who, by virtue of their prior work history, were familiar with train operation.13 In August and September 2013, these identified managers were given four weeks of refresher of Train Operator classroom training at BART’s offices in Oakland. This included some hands-on training on two BART train cars that had been placed on blocks at a facility on Mare Island.14 After the refresher, those managers were required to pass a written test before proceeding to actual on-the-job training.15

On Friday, October 18, 2013, the day before the Accident, BART’s unions called the second strike (Strike), and BART discontinued all of its revenue services. On October 19, 2013, the day of the Accident, BART began its on-the-job training of two of its managers who passed the recent four-week refresher,16 using Train #963 and one of its veteran managers as the trainer. On this day, there was no revenue service on any of the BART tracks, and the only train movement on the BART tracks involved Train #963 (for training

12 Ibid.13 Id. at 3:20-25.14 Id. at 3:25-4:11.15 Exh. BART 59.16 Exh. BART 95 at 2.

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the managers) and possibly one other train (for track maintenance purpose).

At the time of the Accident, there were six BART managers and senior level employees on board Train #963. Paul Liston (Trainer) was a high level veteran manager in charge of the incident train, and he was conducting the on-the-job training of the two trainees on board that day. One of the two trainees was Richard Burr (Trainee), also a BART manager, and he was in the operator seat of the incident train at the time of the Accident. Trainee was receiving his first on-the-job training that day, following his completion of the in-class refresher course.17 Also on board was another trainee, who held the position of BART Principal Train Control Engineer, and three other BART managers and senior level employees observing this training.

Trainer was a 17-year veteran of BART, who started service with BART as a train operator, and at the time of the Accident, Trainer was a high level manager overseeing the training and also implementing the safety corrective actions as evidenced in the record.18 Trainer testified in the NTSB interview that he started at BART as a Train Operator for three years starting in 1996, that he was promoted up BART’s supervisorial chain and that, at the time of the Accident, he was BART’s Assistant Chief Transportation Officer overseeing all of BART’s approximately 80 train operators.19 BART represented that Trainer was trained and familiar with the training curriculum and BART’s policies and procedures for conducting on-the-job Train Operator training.20 17 Exh. SED 9 at 2.18 Exh. SED 2 at 50 of 112.19 Exh. SED 22 at 7:18-25.20 Exh. BART 109 at 5:28-6:10.

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Trainer acknowledged in his NTSB interview that he knew Trainee was “fairly new” and this was Trainee’s first day actually “in the seat” operating the train. Trainer admitted that, at the time of the Accident, he was not in the incident cab training, guiding and overseeing Trainee and that the only person in the cab of the incident train was Trainee.21

Trainee was a 20-year veteran of BART and also a manager who oversaw BART’s planning and training as well as implementing BART’s safety procedures and corrective actions.22

Prior to the Accident, a BART manager (the decedent, Christopher Sheppard), with a BART contractor, was granted a Simple Approval authorization by the BART’s Operation and Control Center (OCC) manager to do some measurements on the tracks where Train #963 would be traversing during the course of the training. BART’s OCC sounded a required Automatic Track Information Service (ATIS) notice/warning on the BART’s system announcing that workers were working on or near the BART tracks on the route Train #963 would be traversing. BART’s OCC did not issue any further follow-up reminder ATIS notice/warning after the first.

Trainer claims he did not specifically hear the ATIS notice/warning preceding the Accident, at any point. Trainer explained, in his NTSB interview, that ATIS announcements are “automatic and repetitious” and that he vaguely recalls hearing them but that he also “wasn’t paying close attention” to what he “heard in the canned voice.”

21 Exh. SED 22 at 25.22 Exh. SED 2 at 51 of 112.

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Trainer admitted that he overheard the two trainees talking about the ATIS notice/warning before Train #963 left one of the stations but did not give his trainees any direction, guidance or advice on how to anticipate and exercise caution when approaching workers on or near tracks. One of BART’s train operators testified that Trainer, responsible for the train, should have actively been engaged, listening to ATIS notices/warnings, being mindful and aware of the wayside workers as the train approached the location where the work was being performed.

Finally, and prior to the Accident, the in-cab video shows, inter alia, (1) Trainer being largely absent from the operator cab, while leaving Trainee unattended, and (2) Trainee being left alone in the operator seat of the Train #963 with visible signs of unease in operating the train, asking Trainer many questions, while nervously writing and placing post-it notes presumably to aid his training, and being told by Trainer that Trainee is asking too many questions and seemingly displaying his annoyance to Trainee.

1.3.2. The Accident On Saturday, October 19, 2013, at approximately 1:44 p.m.,

BART Train, #963, struck and killed two wayside workers (a BART manager and a contractor for BART) on BART track between the Walnut Creek and Pleasant Hill stations. Train #963 was travelling eastbound and being operated by Trainee. Train #963 was being operated in a non-manual Automatic Train Operation (ATO) mode at full operating speed of approximately 68 miles per hour, with six BART managers and senior level employees on-board, including Trainer (a manager acting as a trainer for the day), another manager who was the Trainee, a second trainee who held the title of Principal

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Train Control Engineer, and three observers (a manger and two senior level employees).

On Train #963 with Six BART ManagersAt the time of the Accident, Train #963 was being operated

solely for training purposes since all of BART’s revenue service had been cancelled due to Strike. At the time of the Accident, Trainer (a veteran BART manager who supervised BART's training department for train operators)23 was in charge, supposed to be in control of Train #963 but was absent from the train operator cab. Trainee was in the operator seat and being trained by Trainer.

BART trains and their operator cabs are fitted with in-cab video cameras. The in-cab video, including audio recording, of the time leading up to the Accident was admitted into evidence.24 The video shows that immediately upon seeing the workers on the track and realizing they were in the train’s operating envelope, Trainee hit the emergency brake and may have attempted to sound the horn by repeatedly pressing the wrong button.25

The video shows that Trainer failed to comply with BART’s on-the-job training policies and procedures.26 Although Trainer should have been positioned behind Trainee in the cab during every moment the train was in operation, Trainer instead was absent from the cab for long stretches of time, including at the time of the Accident.27 Although the Trainer did not testify at the evidentiary

23 Id. at 50 of 112.24 Exh. SED BART 95 at 13; see also Exh. SED 50.25 Exh. SED 50.26 Ibid.27 Ibid.

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hearing, evidence is uncontroverted that, at the moment of and moments leading up to the Accident, Trainer was not in the train’s cab and not supervising Trainee. Video evidence shows that Trainer was in the cab and facing Trainee only for a few minutes of the entire video clip presented. The video evidence and NTSB transcript of the in-cab video and audio show that the Trainer did not prepare Trainee for the potential track interferences by workers and other potential obstructions. The same evidence also shows that Trainer did not carefully review the use and location of emergency buttons or how to switch out of the ATO mode and into manual option to slow the train’s ATO speed, etc.

Trainer was seen openly carrying a cellphone in the in-cab video. Trainer’s telephone record confirms and evidences large volume of cellphone text activities while he was on duty training the trainees and probably on Train #963 duty as the supervisor and Trainer of Trainee, including within one minute prior to the time of the Accident.28 All parties agree that this conduct violates the Commission’s General Order (GO) 172 and BART’s own personal electronic device (PED) policy, which require Train Operators to stow and refrain from accessing their PED while in the train cab.29 BART admits that this prohibition applies to on-the-job trainers also.30

28 Exh. SED 8; see also SED 19 (Audio transcript of the in-cab camera combined with the audio video as well as the NTSB transcript description of the small confined cab space and the phone records showing the volume and frequency of calls and texts.)29 Exh. SED 34.30 Exh. BART 106 at 6:26-28.

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The video and other record also show that none of the other BART managers, seniors employees, and passengers/observers (observing the Trainer and his training) on board the incident train made any effort to stop, warn, discourage, obstruct, correct or otherwise report these continued violations by Trainer. In-cab video and phone records confirm that Trainer’s conduct (cell phone carrying and use) violative of GO 172 and BART’s PED Policy31 occurred throughout the day of the training on Train #963.

On October 19, 2013, BART’s safety announcement rule for its OCC required that ATIS notice/warning be made at the top of the hour and at the bottom of the hour (e.g. 12:00 o’clock and 12:30). As applied to the wayside crew on the day of the Accident, the required top of the hour ATIS notice/warning was made (at 1:07 p.m.) by OCC but the required bottom of the hour (1:30 p.m.) ATIS notice/warning was not made, which would have been just moments prior to 1:44 p.m., the time of the Accident.

On the Track / the Wayside Crew (A BART Manager and A Contractor)At the time of the Accident, a BART manager and a contractor

were working on the BART tracks at the Accident location. There, they were struck and killed by Train #963.32

The late Mr. Christopher Sheppard was BART’s Special Projects Manager, Tracks and Structures. BART presented evidence that he was experienced and familiar with BART's operations and wayside

31 Exh. BART 10 and Exh. SED 34; see also Exh. SED 20 (An updated PED Bulletin 13-10 re Zero Tolerance was issued to BART employees on 1/2/2013, ten months prior to the Accident.)32 Exh. SED 9 at 1.

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rules,33 and that he was qualified to enter the wayside (i.e., the trackway and adjoining areas), having completed BART’s 40-hour wayside safety training and periodic refresher courses.34

The late Mr. Laurence Daniels was a BART contractor who had previously completed BART’s 40-hour wayside safety training. His authorization lapsed shortly before the Accident.35 Nonetheless, Mr. Daniels was allowed to enter BART’s wayside escorted by Mr. Sheppard.36

At the time of the Accident, these workers entered the wayside under OCC’s Simple Approval authorization at this location to inspect the running rails for a potential dip.37 The workers had in their possession an aluminum track gauge.38 The track gauge was found lodged under the incident train following the Accident.39 BART safety rules prohibit the use of such conductive gauges near an energized third rail.40 For work at or near energized equipment, non-conductive track gauges are made available to BART workers for use, but none was found at the Accident location.41

At the time of the Accident, BART’s Simple Approval Rule allowed workers to enter the wayside to perform limited tasks while

33 Id. at 21.34 Ibid. 35 Id. at 24.36 Ibid.; Exh. SED 28 at Operations Rules and Procedures (OR&P) 6209.37 Exh. BART 95 at 7.38 Ibid.39 Id. at 10.40 Exh. SED 28 at OR&P 2810.41 Exh. BART 110 at 2:23-3:4.

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trains continued in normal operation.42 Under Simple Approval Rule, if a worker had to enter the BART’s train operating envelope (i.e., the area where he or she could be struck by a moving train) to visually inspect the track, then a second worker was required to be present to act solely as the watchperson, the Watchperson Rule.43

Under the Watchperson Rule, the designated watchperson was prohibited from performing any work other than being a lookout. Under the related 15 Second Rule, the watchperson was required to stand in a position outside the operating envelope where he or she could see a train approaching from either direction with sufficient time to warn the crew on or near the track so that the crew could move safely to a predetermined safe location, clear of track, 15 seconds before a train operating at the maximum authorized speed could reach the work location.44 Any crew that could not comply with the Watchperson and the 15 Second Rules was prohibited from performing tasks under Simple Approval.45

If a work crew could not comply with the Simple Approval, Watchperson and 15 Second Rules, BART required its crew to obtain a Work Order instead.46 If a Work Order is in effect, BART provides a higher level of worker protection by slowing, stopping, or re-routing train traffic, as necessary, to separate and protect the workers from train movement.47 BART trains its roadway workers and its safety rules give its roadway workers the explicit option to request either a 42 Exh. BART 106 at 1:24-2:6.43 Exh. BART 14.44 Exh. SED 28 at BART’s OR&P 616.45 Exh. BART 14 at 2.46 Exh. BART 16 at 2.47 Exh. BART 106 at 2:15-23.

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fast Simple Approval or a Work Order instead. The latter impacts revenue service trains and related schedules.48

In addition, if the OCC is aware of unusual conditions that could prevent the workers from providing its own protection from train movement, the OCC also has the authority to deny a Simple Approval request and instead issue a Work Order to ensure safer working condition for the workers without unreasonably impacting revenue service operations.49

NTSB investigation and reenactment showed that there is a curvature to the track at the point of impact where the Accident occurred. Train #963 came out of this curve from Walnut Creek direction heading toward Pleasant Hill, and where it stopped was where the track begins to straighten. This means that the workers were working at a curved location.50 The Accident reenactment confirmed this and the resulting restricted sight distance at this location.51 In turn, Train #963 had minimal time to see what or who is around the bend. Likewise, the workers too did not have enough time, especially under 15 Second Rule, to safely clear the track with such short sight distance at this curve.

1.3.3. Post-Accident NTSB led the investigation and BART, SED, and DOSH of the

California Department of Industrial Relations worked with NTSB investigators to reconstruct the Accident and determine primary and

48 Id. at 2:24-27.49 Exh. SED 28 at OR&P 6206.50 Exh. SED 22 at 43.51 Exh. BART 102, at 3; see also BART’s Jeffery Lau’s testimony at Hearing Tr. at 477:26-27.

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contributory causes.52 NTSB released NTSB Accident Brief of the Accident in April of 2015, and it is summarized in Section 1.5 of the Decision.

1.3.4. Corrective Actions BART tardily submitted a sparse two-page corrective action plan

on January 12, 2017, well over 3 years from the date of the Accident.53 In it, BART contends that it convened a group to review and update its rules and reissued certain safety policy bulletins and memos. BART discontinued its Simple Approval Rule and process within days of the Accident while always requiring its trainers to observe trainees.54 BART also presented evidence of retraining its wayside workers and enlistment of the American Public Transportation Association to review BART’s Wayside Safety Program.55 These were the evidence of corrective actions.

As for Trainer, in early 2016, he went on disability leave and, while on his leave, retired from BART.56 BART’s investigation report and evidence of corrective action presented by BART’s Chief Safety Officer minimally recognize the failings of Trainer and make no reference to what if any action was taken by BART against or regarding the Trainer’s failings relating to the Accident. According to BART, after the Accident through his retirement, Trainer did not conduct any other Train Operator training.57 However, there was no

52 Exh. SED 16.53 Exh. BART 103.54 Hearing Tr. at 485:18-486:3.55 Exh. SED 9 at 36.56 Exh. BART 108 at 7:8-11.57 Ibid.

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evidence that BART took any affirmative and appropriate corrective or disciplinary action against Trainer concerning Trainer’s actions relating to the Accident. There is no evidence that BART took any affirmative corrective or disciplinary action (not even a warning or reminder) against the two trainees and any of the other BART managers and senior employees who were there specifically to observe that training. They all watched Trainer’s actions leading to the moment of the Accident and never stepped in to note, report or enforce GO 172 or BART’s own PED policy,58 which according to the evidence, was seemingly distributed to all BART workers, including the trainees/passengers/observers on board this train. BART presented no evidence on any evaluation of why and how its high level managers and senior level employees all failed here. Similarly, BART failed to presented any evidence of its evaluation of its safety culture at the management and senior employee levels or demonstrate any recognition that this is even a potential concern or consideration.

1.3.5. SED’s and BART’s Investigation Reports SED completed its report in March 2016. SED’s Final Report

was served on BART with the OII/OSC, in June 2016.59 On January 11, 2017, BART served BART’s Final Report of the Accident on SED.60

Both SED and BART claimed that, as parties to the NTSB investigation, they were subject to NDAs and that their delayed actions in finalizing their respective investigation reports were due to 58 Exh. BART 10 and Exh. SED 34; see also Exh. SED 20 (An updated PED Bulletin 13-10 re Zero Tolerance was issued to BART employees on 1/2/2013, ten months prior to the Accident.)59 Exhibits BART 95; 107 at 9:12-13.60 Exh. SED 9.

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NTSB’s delayed release of NTSB Accident Brief in April of 2015, approximately 16 months after the Accident.

SED claimed that its additional 11 months in delay (to finalize SED’s Final Report after NTSB’s Accident Brief in April of 2015) was due to SED’s request for the in-cab video tape being “refused.” There was no substantiating evidence that such request was refused.

BART claimed that its nearly 20 months in delay (to finalize BART’s Final Report after NTSB’s Accident Brief in April of 2015) was, in part, a result of SED not asking for it. This claim by BART was unpersuasive, as BART had an independent duty under GO 164-D to timely present the investigation report, irrespective of what SED did or did not do.

1.4. NTSB’s NDAParties have been referring to their agreements with NTSB as

NDAs (acronym for non-disclosure agreements). They are actually agreements titled “Information and Guidance for Parties to NTSB Accident and Incident Investigations.” These agreements will be referred to as NDAs in this Decision for simplicity. Relevant parts of the NDA provide:

For major accidents, the NTSB dispatches a “Go Team.” The purpose of the NTSB Go Team is to deploy NTSB investigators to the accident scene as quickly as possible and assemble the broad spectrum of technical expertise that is needed to investigate complex transportation accidents.61

The NDA also provides:

61 Exh. Comm 1, Section II.

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… All participants in the NTSB investigation who acquire or handle such materials must do so in compliance with the law and NTSB rules.62

In terms of “Flow and Dissemination of Investigative Information,” the NDA states that “without the approval of the [Investigator-in-Charge (IIC)],” no information may be disseminated to “others within the party’s organization, beyond those individuals actually participating in the NTSB investigation.”63 It further specifies that:

If necessary for public safety, and with the IIC's permission, party coordinators may release information to their respective organizations provided the information is factual, neutral and objective in tone, and without purported NTSB characterization of the matter's contribution to the underlying accident.

If a party's organization has a need, in the interest of safety, to transmit information to operators utilizing their products regarding issues related to the investigation, they must first provide the IIC with a written draft of the proposed correspondence and obtain the IIC's permission before its release. [Emphasis added.]64

The above provisions clearly provide, for interest of public safety and other agency needs, IIC is authorized to permit release of information.

The NDA also provides that NTSB’s general prohibition:

… on the release of factual information (within the party's organization) obtained from participation in the investigation shall normally end once the fact-

62 Id. at Section IX.63 Id. at Section VII.64 Ibid.

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finding phase of the investigation is complete. Limitations on parties commenting publicly on possible findings of the [NTSB] investigation, including the probable cause of the accident, will remain in effect until after the [NTSB] adopts [NTSB’s] final report.65

1.5. NTSB Investigation and Accident Brief At the time of the Accident, BART’s Simple Approval Rule

required that when roadway workers do work on or near tracks under its Simple Approval Rule, there must be a separate designated watchperson present at the work site.

In December of 2013, during the early stages of NTSB’s investigation of the Accident, NTSB made the below urgent recommendations to the Federal Transit Administration (FTA) requesting FTA to:

(1) Issue a directive to all transit properties requiring redundant protection for roadway workers, such as positive train control, secondary warning devices, or shunting. (R-13-39) (Urgent)

(2) Issue a directive to require all transit properties to review their wayside worker rules and procedures and revise them as necessary to eliminate any authorization that depends solely on the roadway worker to provide protection from trains and moving equipment. (R-13-40) (Urgent)66

65 Ibid.66 The NTSB’s Recommendation to the FTA (R-13-39 (Urgent) and R-13-40 (Urgent), dated December 19, 2013 (See Attachment A to this decision at 5).

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On April 13, 2015, NTSB issued its Accident Brief67 concerning its investigation of the Accident and made the following factual determinations:

(1) On the day of the Accident, two engineering department employees planned to take measurements at a location where a minor defect was detected on one of BART’s tracks (near Walnut Creek). The two employees were a BART manager and a BART contract employee, and at the time, they were working as roadway workers because of the BART workers’ strike that was in progress.

(2) At the time of the Accident, BART had in place its Operations Rules and Procedures Manual (BART Manual), and BART train operators and roadway workers were required to comply with the provisions of the BART Manual. Additionally, BART’s roadway workers were required to complete wayside safety training and certification as part of the mandatory Wayside Safety Program. BART’s Wayside Safety Program consisted of general safety practices.

(3) At the time of the Accident and as part of BART’s approved safety procedure, BART used what is commonly known as Simple Approval procedure. This Simple Approval procedure required the employees to first contact BART’s OCC and secure an authorization to enter the roadway, and when a Simple Approval authorization is requested, BART’s OCC was supposed to remind the requesting workers that they were required to provide their own protection and not interfere with mainline or yard operations. Under Simple Approval, BART roadway workers were required to be aware of train and equipment movements and provide for their own protection using their own judgment.

67 The NTSB Railroad Accident Brief 15-03 (attached to this decision as Attachment B). See id. at 3. (Under 49 U.S. Code Section 1131, NTSB has authority to investigate and establish the facts, circumstances, and cause or probable cause of a railroad accident in which there is a fatality or substantial property damage, or that involves a passenger train.)

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(4) At the time of the Accident and as part of BART’s approved safety procedure, BART also had a Watchperson Rule prohibiting its roadway workers from performing work without a watchman/lookout when they were close enough to a rail to be struck by a moving train or other equipment.68 Under this rule, the watchperson’s sole responsibility was to watch for approaching trains or equipment—on any track, at any time, and in any direction.

(5) On October 19, 2013, and prior to entering the roadway, the two BART workers contacted, requested and received Simple Approval authority from OCC to enter the roadway in accordance with BART’s Simple Approval Rule.

(6) Based on review of the recording from BART’s mounted digital audio and video recorder above the operator’s seat in the lead car which was positioned to record the operator and the car control panel, NTSB investigators determined that at 1:43:45 p.m. train #963 entered and quickly exited the Walnut Creek Station in the direction of the Pleasant Hill Station without stopping. Eight seconds later, the train accelerated to 44 mph. The train’s speed increased to 68 mph within 28 seconds. At 1:44:23, the operator trainee repeatedly pushed the red emergency stop button and repeatedly shouted, “Look out!” and “No, no, no!” Less than five seconds later, the train struck the two wayside crew who were standing between the rails of the track.

NTSB determined the probable cause of the Accident was BART’s “use of Simple Approval for granting roadway worker access to the track, which required the workers to provide their own protection.” In other words, use of Simple Approval procedure in this instance which allowed the two workers (roadway worker and watchperson) to be on the track without additional independent safeguards was the probable cause of this Accident. 68 Id. at fn 2. BART refers to this as “fouling the track.”

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NTSB also compared BART’s rules, in effect at the time of the 2013 Accident, with the requirements of the Interim GO that the Commission adopted 12 days after that Accident. NTSB observed that the Interim GO provides additional and independent safety protections which addressed the safety issues and concerns that were later identified during the NTSB investigation of the 2013 BART Accident.69

2. Legal and Regulatory Framework

2.1. Constitutional and Statutory Authorities The Commission is a regulatory body of constitutional origin and

derives its powers from the Constitution and the Legislature.70 The Commission has jurisdiction over California rail transit agencies (RTAs). Code § 216, subsection (a), defines “public utility” to include “every common carrier,”71 and subsection (b) provides that “… a public utility [is] subject to the jurisdiction, control, and regulation of the commission and the provisions of this part.”

Under Code § 451, BART, as a public utility and common carrier:… shall furnish and maintain such adequate, efficient, just, and reasonable service, instrumentalities, equipment, and facilities, including telephone facilities, as are necessary to promote the safety,

69 See id. at 4-5. 70 People v. Western Airlines, 42 Cal. 2d 621, 634, citing Article XII, section 23 of California Constitution.71 The RTAs are also “common carriers” as defined under Cal. Civ. Code § 2168 which defines common carriers as “[e]very one who offers to the public to carry persons, property, or messages, excepting only telegraphic messages, is a common carrier of whatever he thus offers to carry.” Under Cal. Civ. Code § 2100, common carriers “must use the utmost care and diligence for their [passengers’] safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.”

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health, comfort [ ], and convenience of its patrons, employees, and the public.

An RTA plans, designs, constructs, and/or operates a rail fixed guideway system.72 Generally, as to all RTAs, Code § 778 provides:

The [C]ommission shall adopt rules and regulations, which shall become effective on July 1, 1977, relating to safety appliances and procedures for rail transit services operated at grade and in vehicular traffic…. [Emphasis added.]

A rail fixed guideway system is “any light, heavy, or rapid rail system, monorail, inclined plane, funicular, trolley, cable car, automatic people mover, or automated guideway transit system used for public transit and not regulated by the [Federal Railroad Administration] or not specifically exempted by statute from Commission oversight.”73 The Commission has safety oversight jurisdiction over California’s rail fixed guideway systems (RFGS).74 The Commission has safety oversight jurisdiction over California’s transit systems under Code § 99152 and other Code sections establishing each individual RTA within California. Specifically, Code § 29047 confers safety oversight jurisdiction to the Commission concerning BART, as follows:

[BART] … shall be subject to regulations of the Public Utilities Commission relating to safety appliances and procedures, and the commission shall inspect all work done pursuant to this part and may make such further additions or changes necessary for the purpose of safety to employees and the general public.

[The Commission] shall enforce the provisions of this section.

72 GO 164-D, Section 2.16.73 Id. at Section 2.15.74 Code § 99152.

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…

2.2. Federal Delegated Authorities In addition, the Commission has been designated by FTA as the

State Safety Oversight Agency for the RTAs in California under Title 49 C.F.R. Parts 659, et seq. As the State Safety Oversight Agency, the Commission has federally delegated safety and security oversight responsibilities over California’s RTAs and RFGSs. Specifically, the federal government delegates and requires the Commission to establish a safety program, and carry out the delegated safety oversight by (1) reviewing, approving, and monitoring the execution of each system’s safety plan, (2) investigating hazardous conditions and accidents on systems, and (3) requiring and monitoring corrective action to correct or eliminate those conditions.75

2.3. General OrdersIn conjunction with its safety authorities under Code §§ 451, 778

and 99152, inter alia, as well as its delegated federal safety oversight authorities,76 the Commission adopted GO 164-D, in part, to carry out these combined state-federal safety oversight responsibilities. The Commission has also adopted various rules and regulations concerning RTAs, RFGS and rail transit safety.

For example, GO 95 sets forth, among other things, safety requirements for overhead electric/catenary lines. GO 127 provides for the maintenance and operation of automatic train control systems for the RTAs. GO 143-B addresses the design, construction, and operation of light rail transit systems. GO 172 provides rules 75 49 U.S.C. § 5330(c).76 49 U.S.C. § 5330, Intermodal Surface Transportation Efficiency Act of 1991, Sec. 3029, Title 49 of C.F.R., Part 659 (Rail Fixed Guideway Systems, State Safety Oversight).

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governing and prohibiting the use of PEDs by the employees of the RTAs and RFGSs.

Because each RTA and each RFGS presents uniqueness in operation, equipment and facilities, it is not unusual that the Commission exempts or grants variances to certain RTA and RFGS from GO compliance, based on the unique circumstances. In other words, the Commission’s rules (e.g. GOs) are generally applicable and are not meant to set out every specific RTA- or RFGS-specific safety rules. Instead, the Commission’s rules are largely designed to set general rules and guidelines for RTAs to prepare their own complimentary, tailored, specific and consistent safety rules and plans (to be approved by the Commission), as the specific set of RTA- or RFGS-specific safety plans for operations, practices and procedures specifically applicable to the particular RTA and RFGS in addition to, inter alia, the GOs, decisions and statutes.

Consistent with that approach, through GO 164-D, the Commission directs RTAs and RFGSs to comply with the safety oversight rules and regulations ordered therein. In part, the Commission explicitly directs each RTA to develop a System Safety Program Plan (SSPP) to be submitted to the Commission for review and approval.77

Inter alia, GO 164-D, Section 3.1 provides:Each new RTA shall submit its initial SSPP to Staff for Commission approval. No new RTA shall begin transit operations prior to Commission approval of its initial SSPP. Each RTA shall annually certify by a letter to Staff that it has reviewed the SSPP to determine whether the plan should be modified or updated. If an RTA determines revisions of the SSPP

77 Exh. SED 14.

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is necessary, the RTA shall submit the revised SSPP to Staff with a request for approval. If the revised SSPP is acceptable to Staff, Staff shall issue a formal letter to the RTA approving the revised SSPP as consistent with Section 3.2, best industry practices, and in furtherance of the public’s interest in system safety and security.

The natural expectation is that the RTA’s safety rules, protocols, processes, practices and programs meet “best industry practices, and in furtherance of the public’s interest in system safety and security” and that the Commission’s approval of SSPP is an extension of Commission’s decree to the RTAs to comply with the RTA’s commitments reflected in the approved SSPP, including the RTA’s own safety rules, protocols, processes, practices and programs. In turn, if there is non-compliance of that commitment, the Commission must take action to enforce compliance, as needed.

Exhibit SED 14 is BART’s SSPP which was in effect at the time of the Accident. It was revised, certified and signed by BART’s Chief Safety Officer, Len Hardy, Assistant General Manager of Operations, Paul Oversier, and General Manager, Grace Crunican, in April of 2012. It was approved by the Commission and provides in part:

… Accountability for safety rests with each employee, supervisor and manager. All are responsible for meeting the safety requirements inherent to their positions. Individual employees must comply with the safety rules and procedures applicable to their work duties. Supervisors and managers must enforce safety standards applicable to their departments and are ultimately responsible for safety within their domain. [Emphasis added.]

By having approved that SSPP, BART was committed and required to implement and enforce it, along with all of its safety rules

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and procedures, including its Zero Tolerance policies, as approved, and to carry it all out, as approved.

2.4. General Orders 175 and 175-A and Commission’s Safety Policy Statement

The below discussion of GO 175 and GO 175-A78 and the Commission’s Safety Policy Statement (Safety Policy) provides a background and context concerning the Commission’s current and heightened concern for roadway workers protection and the Commission’s strong emphasis on safety culture, within which we are reviewing this OII/OSC. Specifically, these GOs and Safety Policy Statement are referenced for purposes of noting the importance of roadway workers’ safety. These are general safety rules and policies for all RTAs and RFGSs. More RTA- and RFGS-specific and approved safety rules for each are always appropriate and necessary and their compliance is expected and will be enforced by the Commission. The record however should be clear that, at the time of the Accident, these GOs and Safety Policy Statement were not yet in effect.

Leading up to these GOs and Safety Policy Statement, between 1997 and 2008, there were 40 rail roadway worker fatalities nationwide. Then in 2009, the Commission issued an Order Instituting Rulemaking (OIR or R.) 09-01-020 in response to two separate roadway worker fatalities involving BART and Sacramento Regional Transit District (SRTD). After multiple rounds of comments, workshops, investigations into these roadway worker accidents (spread across the nation) and numerous sets of recommendations by SED to the Commission, on October 31, 2013, the Commission

78 GO 175-A supersedes GO 175.

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adopted the Interim Roadway Worker Protection GO or GO 17579 which set forth the general safety rules for the California’s roadway workers. Then, on March 17, 2016, the Commission adopted GO175-A or Roadway Worker Protection GO, which supersedes GO 175 and is now in place, as the general safety rules for the California’s roadway workers.80 In adopting these GOs, the Commission emphasized the importance of safety culture and management’s active role in promoting roadway worker safety and preventing rail accidents.81

On July 10, 2014, the Commission adopted the Safety Policy Statement. It reaffirmed the Commission’s long-held safety principles, mission and goal, and declared that the Commission’s overarching safety mission is to assure that the regulated utilities Californians depend on for critical services are as safe and resilient as they can possibly be.82 This applies to safety oversight over the RFGSs and the RTAs in California.

In it, the Commission declared its ultimate safety goal as “… zero accidents and injuries across all the utilities and businesses we regulate, and within our own workplace.”83 In D.16-03-006, Commission declared its commitment to that safety goal to:

(1) Improve the overall safety culture and management of the railroad industry by, inter alia,

79 Decision (D.) 13-10-073.80 D.16-03-006, Decision Adopting GO 175-A for Roadway Worker Protections on California's Rail Transit Systems.81 See D.13-10-073 at 28, 29, 35 and Findings of Fact 3; D.16-03-006 at 9.82 See Safety Policy Statement at 1 (The Commission’s overall mission is to protect consumers and ensure the provision of safe, reliable utility service and infrastructure at reasonable rates, with a commitment to environmental enhancement and a healthy economy). A copy of the Safety Policy Statement can be found at http://www.cpuc.ca.gov.83 Id. at fn. 2.

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identifying and mitigating or eliminating safety hazards, enforcing existing safety regulations, and developing new safety solutions, approaches and regulations; and

(2) Embrace the Safety Management System approach as the way to strengthen safety culture of the regulated entities.84

The Safety Management System approach includes the following four components and applies to the RTAs and the roadway workers:85

Safety Policy – The overarching policy is zero accidents as stated above, including the leadership and management strategies necessary to carry out the policy and vision. Safety policy specific to a GO governing roadway worker protection includes, inter alia:

• Developing an organizational structure, with each part of the organizational structure having a specific role in contributing to the culture of accident prevention.

• Improving safety reporting to track useful and detailed information, including near-miss reporting and detailed safety incidents and remedial actions documentation.

• Focusing on safety, accident-prevention, and effective remedial action, and focusing less on blaming the victim(s) or the particular worker(s) proximal to the accident.

• Cultivating and training to reinforce safety practices and culture of situational awareness and mindfulness.

• Striving for zero-accidents.Risk Management – The RTAs should make proactive efforts to

identify, assess, and track hazards or risks, and eliminate or mitigate the same.

84 D.16-03-006 at 9.85 Ibid.

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Safety Assurance – The RTAs should be held accountable for safety compliance and best practices.

• The RTAs should implement safety practices including implementing, updating and improving safety rules, as needed.

• The RTAs should train, supervise, performance monitor, oversee, inspect, investigate, enforce safety rules and hold individuals accountable, where appropriate.

• The Commission should provide safety regulations.• The Commission should conduct independent safety

oversight review, inspections, investigations, performance monitoring, and compliance enforcement.

Safety Promotion – To prioritize safety, the RTAs should promote safety issues as part of human resource review practices and provide related safety training and other necessary support.

3. Burden of Proof and Standard of ProofIn an investigatory proceeding, such as the instant proceeding,

SED bears the burden of proof.86 The standard of proof that SED must meet is that of a preponderance of evidence.  Preponderance of the evidence is defined in terms of probability of truth, e.g., such evidence as, when weighed with that opposed to it, has more convincing force and the greater probability of truth.87 The preponderance of the evidence standard “simply requires the trier of fact ‘to believe that the existence of a fact is more probable than its nonexistence.’”88

86 D.97-05-089; 72 C.P.U.C.2d 621, 633-4.87 D.08-12-058, citing Witkin, Calif. Evidence, 4th Edition, Vol. 1, 184.88 In re Angelica P. (1981) 28 Cal.3d 908, 918.

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4. Discussion

4.1. Commission’s Authority to Impose Fine and Other RemediesThe California Constitution, as well as § 701, confer broad

authority on the Commission to regulate public utilities, which includes the authority to direct non-monetary remedies (e.g., equitable remedies).89 Section 701 provides:

The commission may supervise and regulate every public utility in the State and may do all things, whether specifically designated in this part or in addition thereto, which are necessary and convenient in the exercise of such power and jurisdiction.

In addition, the Commission also has specific statutory authority to impose fines under §§ 2107 and 2108.90 Section 2107 states:

Any public utility that violates or fails to comply with any provision of the Constitution of this state or of this part, or that fails or neglects to comply with any part or provision of any order, decision, decree, rule, direction, demand, or requirement of the commission, in a case in which a penalty has not otherwise been provided, is subject to a penalty of not less than five hundred dollars ($500), nor more than fifty thousand dollars ($50,000) for each offense.91

Section 2108 states:Every violation of the provisions of this part or of any part of any order, decision, decree, rule, direction, demand, or requirement of the commission, by any corporation or person is a separate and distinct

89 See Southern California Edison Co. v. Peevey (2003) 31 Cal.4th 781, 792, citing Assembly v. Public Utilities Commission (1995) 12 Cal. 4th 87, 103; see also Pacific Bell Wireless, LLC, v. Public Utilities Commission (Cingular) (2006) 140 Cal. App. 4th 718, 737. 90 See, e.g., Pacific Bell Wireless, LLC v. Public Utilities Com. (Cingular) (2006) 140 Cal. App. 4th 718.91 Between 1994 and 2012, the maximum fine was $20,000 per offense. Prior to 1994, the maximum fine was $2,000 per offense.

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offense, and in case of a continuing violation each day’s continuance thereof shall be a separate and distinct offense.

Section 761 also confers authority on the Commission to require a utility, inter alia, to maintain safe practices and facilities. It provides, in pertinent part:

Whenever the commission, after a hearing, finds that the rules, practices, equipment, appliances, facilities, or service of any public utility, or the methods of manufacture, distribution, transmission, storage, or supply employed by it, are unjust, unreasonable, unsafe, improper, inadequate, or insufficient, the commission shall determine and, by order or rule, fix the rules, practices, equipment, appliances, facilities, service, or methods to be observed, furnished, constructed, enforced, or employed.

In view of the above authorities and in devising appropriate remedies in this proceeding, one notable factor we consider is the fact that BART is a public agency, and the fine imposed on BART will impact its budget, fees and service to the public. Noting those apparent implications, we are mindful of our policies of enhancing the safety without undue burden to the public and crafting remedies in this proceeding that will effectively redress the violations while being just and fair.

4.2. Summary of Violations and Assessed FineBelow is a summary list of violations SED proved by

preponderance of evidence, and related assessed fine. The assessed fines reflect the seriousness of the violations, involving BART managers and senior level employees and the surrounding aggravating factors as discussed in this Decision, and are therefore assessed at a discernably higher level of fine than those envisioned

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under the citation appeal process. Detailed discussion of these violations follows.

Table of Summary of Violations and Assessed FineViolations Assessed Fine

BART Manager and Trainer Repeatedly Used His Cell Phone in Violation of BART’s Safety Rules and GO 172

$50,000

BART Manager and Trainer Failed to Directly and Properly Supervise Trainee

$50,000

BART Managers (Both Trainee and Trainer) Failed to Sound the Train Horn Prior to the Accident

$50,000

BART Manager and OCC Center Operator Failed to Give Notice of the Presence of Wayside Workers Via the ATIS Warning Notice at the Bottom of the Hour as Required

$50,000

BART Manager (Wayside Worker) Violated Simple Approval Rule $50,000BART Manager (Wayside Worker) and Contractor (Wayside Worker) Failed to Comply with BART’s Safe Clearances When Using the Track Gauge Between the Rails of the BART Trackway

$50,000

BART Failed to Submit a Timely and Adequate Investigative Report

$1,048,000(262 days of

continuing violation at $4,000 per day

(per violation))TOTAL ASSESSED FINE $1,348,000

4.2.1. BART Manager and Trainer Repeatedly Used His Cell Phone in Violation of BART’s Safety Rules and GO 172

Preponderance of evidence shows that BART Manager and Trainer, repeatedly used his cell phone in violation of BART’s safety rules and GO 172. BART’s veteran manager, Paul Liston, was Trainer for Trainee, Richard Burr, also a manager, of the incident train on October 19, 2013. While acting as Trainer and moments and hours preceding the Accident, Mr. Liston failed to stow, openly carried and repeatedly used his cell phone while he was supposed to be training Trainee in violation of the following BART safety rules enforced by SED under Code § 99152 and the Commission’s regulations, GOs 164-D and 172:

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1) PERSONAL ELECTRONIC EQUIPMENT: Use of cell phone and/or quiet devices (iPods, bluetooths, earpieces, etc.) are prohibited when operating trains.92

2) TRAIN OPERATOR’S CAB: Train Operators shall not use personal audio/video electronic devices while operating a BART Train.93

3) EMPLOYEE CONDUCT: Employees while on duty shall not use Personal Electronic Devices (PED), radios, televisions, tape or CD players or other electronic media devices or headsets of any kind without specific Departmental approval.94

4) EMPLOYEE CONDUCT: The following restrictions apply to the use of Personal Electronic Devices (PED):A. When operating any form of on-rail vehicle, PEDs

are prohibited from being used and shall be turned off and stowed (put away out of sight and off the person).

B. When dispatching, flagging, or otherwise controlling the movement of on-rail vehicles, PEDs are prohibited from being used. Train Controllers, Power Support Controllers, Vehicle Trouble Desk personnel, and Tower Foreworkers may not use a PED at any time while on position at their workstation. Field personnel directing…(sic).95

Trainer’s, Mr. Liston’s, use of a cell phone also violates the Commission’s GO 172, Section 3.1(a) which provides:

PROHIBITED USE OF A PERSONAL ELECTRONIC DEVICE: Persons shall be strictly prohibited from using electronic devices, while:

92 Train Operator Manual, Book 315, Rule 114(b); see also Exh. SED 34 at 3, § 5.0(a).93 Train Operator Manual, Book 315, Rule 213(b); see also Exh. SED 34 at 3, § 5.0(a).94 OR&P, Rev. No. 7, July 2013, Section 1330.95 Id. at Section 1333A. and B; see also Exh, SED 34 “Prohibited Use of Personal Electronic Devices” at 3, § 5.0(b).

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A. Operating rail transit and other on-track vehicles. Devices must be turned off and stowed.The in-cab video96 shows Mr. Liston with his cell phone openly

carrying it in the operator’s cab of Train #963. BART management also admits to these violations. BART witness, Paul Oversier, testified that “Mr. Liston’s alleged use of his cellphone while the train was in motion also violated BART’s PED Policy and compounded his failure to be present in the Operator’s cab.”97 Another BART witness, BART’s Chief Safety Officer, Mr. Lau too testified that “Mr. Liston’s alleged use of his cellular phone while the train was in motion also violated BART’s PED Policy and compounded his failure to be present in the Operator’s cab.”98 Note, this behavior also violates BART’s own safety bulletin (issued to all of its employees on January 12, 2012) prohibiting such PED usage.99

This violation is proven by preponderance of evidence, and a fine of $50,000 is assessed for a single non-continuing violation. We adopt SED’s recommendation to impose the maximum fine of $50,000 for this violation. This is not a one-off violation as BART characterizes it. It is an egregious violation of BART’s safety duties which continued throughout the training day by a veteran and high level manager. He was the Assistant Chief Transportation Officer over more than 80 employees. He was not just any ordinary rank-and-file employee but the expert BART selected to train others on safe train operation as a safe train operator role model. He was therefore also 96 Exh. SED 1.97 Exh. BART 106 at 10:2–4.98 Exh. SED 34 at 3 § 5.0(a).99 Exh. BART 10 and Exh. SED 34; see also Exh. SED 20 (An updated PED Bulletin 13-10 re Zero Tolerance was issued to BART employees on 1/2/2013, ten months prior to the Accident.)

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being observed by numerous managers and senior employees on that train on ways to safely operate the train. In that expressly designated role of BART’s trainer in a highly visible and safety sensitive capacity of training others to ultimately operate BART trains during the Strike, he demonstrated a serious lack of safety attitude and culture. This is a reflection on BART and its management and evidences total disregard for the applicable BART safety rules and Commission’s GO 172 prohibition.

4.2.2. BART Manager and Trainer Failed to Directly and Properly Supervise Trainee

Preponderance of evidence shows that BART Manager and Trainer failed to directly and properly supervise Trainee. Trainer was absent from the cab of Train #963 for substantial segments of the in-cab video footage presented in this proceeding which confirmed that Trainer was not directly supervising Trainee, who was operating that train with no supervision on his first day of the on-the-job training. The NTSB On-Board Video Recorder Factual Report, illustrates with a detailed transcript of Mr. Liston discussing baseball standings instead of training Trainee by (1) being physically present, (2) attentively engaged in train operation, track conditions and Trainee’s conditions and needs, (3) paying attention to ATIS announcements, and (4) actively providing guidance, direction and input to Trainee.100

Trainer’s absence from the cab also meant, he was not able to observe the track ahead, anticipate, coach, guide or correct mistakes by Trainee, provide defensive operations tips to prepare for potential obstacles/obstructions/ debris/workers on the tracks, or stop (or prepare to stop) or sound the horn (or prepare to sound the horn)

100 Exh. SED 19 at 5-36.

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quickly in case of an emergency.101 All this evidences Trainer’s utter failure to directly supervise and train Trainee on Trainee’s first day of the on-the-job training, in violation of BART’s operating standards and rules:

AUTHORIZED OPERATORS: Only BART personnel who have satisfactorily completed a prescribed training course may operate BART trains. Trainees may operate a train only under the direct supervision of a Train Operator Employee Development Specialist (EDS), a temporary T/O EDS Instructor, or a qualified T/O On the Job Training (O.J.T.) Instructor [Emphasis added].102

1) Train Operators should seek the early assistance of a supervisor regarding any matter that may affect their performance of duties…Train Operators have full responsibility for an assigned train until relieved by another Train Operator, or a qualified supervisor, or the train is properly stored…They are personally responsible for the safe operation of the train… [Emphasis added.]103

2) Supervisors or personnel in charge shall ensure that personnel under their direction perform their tasks safely without taking unnecessary risks.104

Trainer trained Trainee, in large part, while texting and chatting with others in the passenger compartment and while outside the operator’s cab.105 Referring to the time of the Accident, someone in the passenger compartment said that he “did not believe there was

101 Exh. SED 50; see also Exh. SED 49 at 1-3.102 Train Operator Manual, Book 315, Rule 301; see also Exh. SED 33 at 10 §1.1.6.2.103 Train Operator Certification Class 98, June 2012, at 379, Exh. SED 25.104 OR&P, § 1402, Exh. SED 28.105 Exh. SED 2 at 101 of 112.

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anyone else [other than Trainee] in the cab.”106 Even the “[Trainee] said [Trainer] was seated in the front left seat [of the passenger compartment and not inside the cab] providing direction to Burr throughout the entire time before the impact.”107 Finally, even a BART Employee Development Specialist who trains new BART train operator testified and confirmed that what is seen in the in-cab video illustrates what not to do when conducting on-the-job training and how Trainer failed to directly supervise and train Trainee on Trainee’s first day of the on-the-job training.108

This violation is proven by preponderance of evidence, and a fine of $50,000 is assessed for a single non-continuing violation. We adopt SED’s recommendation to impose the maximum fine of $50,000 for this violation. This is not a one-off violation as BART characterizes it. As noted in the previous section (section 4.2.1) concerning another violation by Trainer, this is an egregious violation of BART’s safety duties by a veteran and high level manager. He was the Assistant Chief Transportation Officer over more than 80 employees. He was not just any ordinary rank-and-file employee but the expert BART selected to train others of safe train operation as a safe train operator role model. He was therefore also being observed by numerous managers and senior employees on that train on ways to safely operate the train. In that expressly designated role of BART’s trainer in a highly visible and safety sensitive capacity of training others to ultimately operate BART trains during the Strike, he demonstrated a serious lack of safety attitude and culture. This is a

106 Ibid.107 Exh. SED 2 at 51 of 112.108 Exh. SED 49 at 1-3.

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reflection on BART and its management and evidences total disregard for the applicable BART safety rules, including Trainer’s duty to safely operate Train #963, as the Trainer in charge, and to teach its safe operation to his two trainees and three observers.

4.2.3. BART Managers (Both Trainee and Trainer) Failed to Sound the Train Horn Prior to the Accident

Preponderance of evidence shows that BART Managers (both Trainee and Trainer) failed to sound the train horn upon spotting the wayside crew or at any time prior to the Accident. Trainee and Trainer failed to sound the horn as soon as the wayside workers were seen when Train #963 entered the curve near the location that the incident train eventually struck the workers.109 Even Trainee was not sure if he hit the horn button or not.110 Trainer admitted that he did not hit the horn button when the incident train approached the workers, at any time before the train struck them. In fact, Trainer was not even in the cab when the incident train approached the Accident location nor at the moment of the collision.

In the moments preceding the Accident, the in-cab video shows that Trainee was hitting the wrong button (not horn button), and witnesses testified that no horn was sounded when the incident train approached the workers, at any time before the train struck them. According to the BART Police Department Report CA0012100,111 one of the BART managers on board the incident train (Barry) said he did not hear the horn. Another BART passenger, the second trainee

109 Exh. BART 105 at 18:12-13, 33:20 through 34:1–9, and at 34:4-8.110 Exh. SED 2 at 97.111 Id. at 91.

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(Pereira) stated to BART Police that he also did not hear the horn.112 Two nearby third-party witnesses, Suzanne and Stanley Kolodzie, both stated that neither of them heard a train horn at any time113 prior to or after the sound of the impact.

BART’s Train Operator Manual or as SED’s witness referred to as Train Operator Textbook, Train Operator Certification, Class 98, page 307, instructs operators on proper and safe emergency braking response, which entails placement of left hand over the horn and right over the emergency brake button.114 BART’s witness testified that the subject manual “provides operational guidelines” and not “rules governing train operation,” and that such requirement or language was not in BART’s Train Operator Manual: “Rather such rules are found in BART’s Operations Rules and Procedures.”115 These rules or guidelines are safety practices and standards. In fact, the Operations Rules and Procedures, Revision No. 6.2 (January 2008) on its cover (signed by BART’s General Manager) states: “The rules and procedures set forth herein govern the operation of the Bay Area Rapid Transit District. Control of this manual shall be in accordance with BART’s System Safety Program Plan.”116 This means that this document, whatever it is referred to as, requires compliance pursuant to BART’s Commission approved SSPP. It is an extension therefore of that SSPP, requiring BART personnel to use the train horn during an emergency or safety situations to communicate

112 Id. at 92.113 Id. at 102.114 Exh. SED 55 at 5:12-25.115 Exh. BART 109 at 5:12-14.116 Exh. BART 2 at 1.

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urgency of train approaching to workers at or near trackway and prepare to “stop” the train, if the wayside worker or workers do not respond to the horn:

TRAIN HORN USE: During an emergency or safety situation, Train Operators shall sound the Horn with one long blast to alert all BART personnel at or near a BART trackway or right-of-way.

The Horn Signal must be acknowledged by BART Personnel by the wave of a hand to the Train Operator.

The absence of acknowledgement by any wayside personnel should be considered immediate cause to STOP the train and notify Central.117

BART admits that its Train Operator Manual118 was violated but argued that it was not promulgated as operating rules. BART therefore argues that Train Operator Manual violation is not technically BART rule violation. In addition, BART excuses this violation by explaining that if Trainee did fail to sound the horn, it was likely due to a physical failure to hit the correct button, as opposed to a knowing violation. We are not persuaded by BART’s arguments. Moreover, this violation is not about intent or lack of intent to violate the rule concerning the horn. It is about the total recklessness in Trainer’s nonchalant and unacceptable training behavior and the resulting panic-struck Trainee response. The combination of which was that the horn was not sounded.

117 Train Operator Manual, Book 315, Rule 304(c) and (d); see also Section V – SIGNALS AND SIGNS, §§ 5500, 5501, and 5502.118 Exh. BART 109 at 5:12-13.

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This safety rule violation is proven by preponderance of evidence, and a fine of $50,000 is assessed for a single non-continuing violation. We adopt SED’s recommendation to impose the maximum fine of $50,000 for this violation. Similar to our analysis of the violations discussed in Sections 4.2.1 and 4.2.2 above, this is not a one-off violation as BART characterizes it. It is an egregious violation of BART’s safety duties two veteran and high level managers. Both the Trainer and Trainee were 17- and 20-year veterans of BART overseeing work of many BART employees. They were not just ordinary rank-and-file employees, and their actions demonstrated a serious lack of safety attitude and culture at the managerial level. This is a reflection on BART and its management and evidences total disregard for the applicable BART safety rules. In addition, Trainer’s total inattention and disregard for safe train operation training in preparation for the limited operation during the Strike placed Trainee in an unenviable panic-stricken position of being completely unprepared to sound the horn and otherwise deal with the workers working on the BART track that day.

4.2.4. BART Manager and OCC Center Operator Failed to Give Notice of the Presence of Wayside Workers Via the ATIS Warning Notice at the Bottom of the Hour As Required

Preponderance of evidence shows that BART’s OCC Manager, on duty at the time of the Accident, failed to give notice of the presence of wayside workers via the ATIS warning notice at the bottom of the hour (just minutes prior to the Accident) as was required. After making an announcement on ATIS stating there are no workers on the track at 1:06 p.m., Mr. Edwards, BART’s OCC Manager, corrected himself at 1:07 p.m. (near top of the hour)

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announcing that there were workers working wayside. However, Mr. Edwards failed to make a similar and required announcement at the bottom of the hour, which would have been approximately 14 minutes before the Accident. This violates OCC Manual,119 Section 437B.120 BART Manager, Mr. Aguilera testified and admitted to this violation of the requirement of giving an ATIS announcement at the bottom of the hour.121

Automatic Track Information Service (ATIS):122

ATIS information shall be broadcast on all TrainOps talkgroups whenever crews are authorized to access the right away, and as a minimum rebroadcast at the top and the bottom of each hour. Additionally, the same information is provided via telephone at x7288.

Information in the ATIS broadcast shall include1. Information regarding the presence of employees on

mainline right-of-ways (designated by Alphanumeric location or Station name)

Information in the ATIS broadcast shall not include:2. Areas covered by Blanket Work Orders3. Information regarding tracks permanently out of

service as described in Operating Bulletins or Transportation Notices

The following are examples of ATIS phraseology: “This is the BART Operations Control Center,” we have

personnel wayside on: All tracks L15 interlocking

119 Exh. SED 21.120 Exh. SED 54 at 10:2–5.121 Exh. BART 108 at 3: 5–6.122 Operations Control Center, Rules and Procedures (OCC) Manual, Revision 21, Effective: March 1, 2013, at 4–19, Exh. SED 21.

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On the C1 track between C57 and C75 interlocking On the A1 track between Fruitvale Station and A25

interlocking gate Charlie All tracks between Orinda and Lafayette Station

This violation is proven by preponderance of evidence, and a fine of $50,000 is assessed for a single non-continuing violation. Since, this violation is a significant safety violation, a $50,000 in fine is justified here. Accordingly, we adopt SED’s recommendation to impose the maximum fine of $50,000 for this violation. This violation demonstrates a serious lack of safety attitude and culture at BART’s management level and disregard for an important safety warning which would have given Trainee and Trainer one final alert and chance to devise a cautious and careful movement of the train as it approached the wayside crew’s location. It could have alerted Trainer to become more aware to get in the cab to be physically present in the cab and near the controls to press the horn button, if needed. It could likewise have prompted Trainer to discuss, show and prepare Trainee about the use of horn so that Trainee is reminded of where the horn button is and when and how it should be used in case there is/are trespasser(s) or work crew present on track or other emergency situations Trainee may face after the on-the-job training is completed and Trainee must operate a train without Trainer.

4.2.5. BART Manager (Wayside Worker) Violated Simple Approval Rule

NTSB also found and evidence in this proceeding confirms by preponderance of evidence that Simple Approval should not have been sought by BART manager who was working wayside that day, because the work location (where the workers were working and

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struck) was a curved location where the sight distance was severely limited. Sadly, the two wayside workers were given Simple Approval authorization.123

At the time of the Accident, the request for use of Simple Approval authorization at this curved location was permitted under BART’s rules, because the area was not previously identified and designated by BART as a geographically prohibited location for Simple Approval.124 It allowed the requesting individual (seeking Simple Approval) to use his or her judgment about the location and whether the crew would be able to comply with all of the safety requirements of Simple Approval Rule, including Watchperson and 15 Second Rules, at that location.

As such, BART’s OCC relied solely on the judgment and representation by the wayside crew that Simple Approval is appropriate at the location and that the workers would be able to comply with the attendant Watchperson and 15 Second Rules. By the then-existing design of BART’s process, OCC had no way of (1) confirming and verifying the workers’ judgment and representations nor (2) knowing of the curved nature and shortened sight distance that would have made it clear that the representation and/or the judgment (of the wayside workers requesting the Simple Approval) were off and therefore approval should not be granted. Because OCC did not and could not know any better than what the workers were telling OCC, the approval was granted at the Accident location.

123 Hearing Tr. at 454:17 through 455:8.124 Id. at 450:28 through 451:1–4.

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It remains BART’s position that granting of the Simple Approval request at the Accident location did not violate any rules and that the OCC properly granted the workers Simple Approval access only to the “at grade” portion of the wayside between the Walnut Creek and Pleasant Hill stations.125 As BART’s Chief Transportation Operator, Roy Aguilera, explained in his testimony, the only areas between those two stations where the access guide prohibited Simple Approval access were the elevated portions of the trackway. BART argues that the Simple Approval was issued consistent with that particular prohibition.

That said, BART’s witness, Mr. Oversier testified that no wayside work could have been safely conducted under Simple Approval at the curve where the wayside crew were struck (track C45) since the likelihood of being struck by an oncoming train from the west was “unavoidable” as determined by BART in its Accident Report, which concluded “The sight distance survey showed the collision was unavoidable even under the most optimal conditions.”126 With the benefit of hindsight, BART now admits the Watchperson and 15 Second Rules could not have been observed by the wayside crew to effectively protect themselves from a train operating at full ATO mode,127 and the wayside work could not have been safely conducted at the location of the Accident with Simple Approval.128

Mr. Oversier admits that BART, in theory, could have geographically prohibited the grant of Simple Approval (with 125 Exh. BART 95 at 47.126 Exh. BART 102 at 3; see also BART’s Jeffery Lau’s testimony at Hearing Tr. at 477:26-27.127 Hearing Tr. at 450–468.128 Id. at 453:21–28.

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Watchperson and 15 Second Rules) at the incident site where the wayside workers were struck.129 When asked “[i]s there any reason why there couldn’t have been a geographic prohibition on a curve at grade?” Mr. Oversier admits that “…yes, it’s possible,” but he suggests that such prohibition still leaves the chance of “a different kind of risk with [workers] misidentifying which track way they’re on.”130

Moreover, Mr. Edwards, BART’s OCC Operator, was asked during the NTSB interview about his role in granting this Simple Approval. He testified that he was asked to give the wayside crew a Simple Approval on the radio, instead of a phone, because “under the circumstances” he wanted “to have [the ATIS warning notice about the wayside worker] be on the radio … because everyone was on Ops channel that day.”131 He also explained that, at the time of the Accident, the BART system largely relied on perception and judgement of roadway worker in the field to determine whether Simple Approval with a watchperson complying with the 15 Second Rule would be adequate protection for those workers.132

Notably and as an aside, he also referenced that there was a computer based system that would have taken much of the guess work out of the safety equation by calculating whether the 15 Second Rule under Simple Approval could safely work at a location, based on track direction, location and other geographic features (i.e. too close

129 Id. at 467:23 through 468:21.130 Id. at 468:18-21.131 Exh. SED 22 at 63.132 Id. at 23-27.

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to a curve) to minimize the human factors/errors from this process.133 He explained that, during the preceding six to seven months, BART has been considering such system “in earnest” and that such plans are in the works.134

What all this means is BART knew that there was guess work and judgment involved and shifted those safety burdens on the workers by the design of its process which was misjudged and violated by its wayside workers in this tragic instance. This is troubling, but the evidence shows, as of the date of the Accident, the Simple Approval was the standard and practice in place. Likewise, there is no evidence presented in this proceeding that Simple Approval process fell below any existing safety standard at that time.

That said, Simple Approval should not have been sought at this curved location, with severely restricted sight distance, where its requirements (which also requires compliance with Watchperson and 15 Second Rules) could not have been complied with. Indeed, the evidence shows Watchperson and 15 Second Rules were apparently not complied with.

This constitutes an egregious safety rule violation by BART’s manager which was proven by preponderance of evidence, and a fine of $50,000 is assessed for this single non-continuing violation. We adopt SED’s recommendation to impose the maximum fine of $50,000 for this violation. This violation is a serious safety violation that reflects BART’s poor safety culture at BART’s management level and total disregard for safety of California’s transit workers.

133 Id. at 27.134 Ibid.

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4.2.6. BART Manager (Wayside Worker) and Contractor (Wayside Worker) Failed to Comply with BART’s Safe Clearances When Using the Metal Track Gauge Between the Rails of the BART Trackway

Preponderance of evidence shows that BART Manager (wayside worker) and contractor (the second wayside worker) failed to comply with BART’s safe clearances when they used the metal track gauge between the BART trackway. The metal track gauge was found lodged against the incident train. It was apparently in use by the wayside workers at the time of the Accident. The gauge was over 30 inches in length and made of conductive material.135 At the time of this Accident, the third rail was powered, and the conductive gauge was unsafely being used on the BART track136 in violation of BART’s Electrical Safe Clearance rules.137 BART safety rule prohibits use of a conductive track gauge of that length while the third rail is powered, as follows:

ELECTRICAL SAFETY & PROTECTION: An Electrical Safe Clearance shall be established for the following, B.1. and B.2., B.1. For maintenance activities performed between the

running rails (far-side zone).For conductive tools or materials over 30 inches in length: Field Verified Power Off or use of insulating gloves or portable nonconductive barriers.B.2.For maintenance activities performed between the

running rails (far-side zone) or beyond, and involve tools or materials that extend into the near-side zone, for conductive tools or material: Field Verified

135 Exh. BART 107 at 7:9-16.136 Ibid. 137 OR&P 6602 ELECTRICAL SAFETY & PROTECTION; this is the text of BART Operating Bulletin13-04, which is listed as part of Exh. SED 20 amending OR&P Rev. 6, January 2008, Exh. SED 28.

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Power Off and use of insulating gloves or portable non-conductive barriers. For non-conductive tools or materials: Field Verified Power Off.

This is an egregious safety rule violation proven by preponderance of evidence, and a fine of $50,000 is assessed for a single non-continuing violation. We adopt SED’s recommendation to impose the maximum fine of $50,000 for this violation. This is a serious safety violation by a BART manager that reflects BART’s poor safety culture at BART’s management level and total disregard for safety of California’s transit workers.

4.2.7. BART Failed to Submit a Timely and Adequate Investigative Report

Preponderance of evidence shows that BART failed to submit a timely and adequate Investigative Report. GO 164-D, Section 8.3 requires an RTA to submit its final investigation report to Commission staff within 60 days of an accident. If the report takes longer to complete, the RTA must submit interim status reports every 30 calendar days. GO 164-D, Section 8.3(d) also provides, in part:

When investigating accidents that require immediate notification per 7.2, the RTA shall:

…Prepare a corrective action plan as a part of the investigation report or in a separate document. (For corrective action plan detail refer to Section 9.)

To accompany the mandated investigation report, GO 164-D, Section 9 also details the Corrective Action Plan requirements and requires that within 60 days of the Accident:

9. Requirements for Corrective Action Plans

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9.1 Rail Transit Agencies shall develop corrective action plans for the following: a. Results from investigations, in which identified causal

and contributing factors are determined by RTA or Staff as requiring corrective actions.

b. Recommendations contained in the Staff triennial safety and security review reports as adopted by the Commission.

9.2 Each RTA shall submit an investigation corrective action plan to Staff within 60 calendar days of the occurrence of the accident as part of the investigation report or in a separate document. If the corrective action plan implementation takes longer than 60 calendar days to complete, the RTA shall submit interim status reports every 30 calendar days. The corrective action plan shall identify the action to be taken with an accompanying implementation schedule, and the individual or department responsible for the implementation.

9.3 Each RTA shall submit a corrective action plan based on the recommendations contained in the Staff triennial safety and security review reports as adopted by the Commission. The corrective action plan shall identify the action to be taken with an accompanying implementation schedule, and the individual or department responsible for the implementation. Each RTA shall submit to Staff corrective action plan interim status reports according to the Commission Resolution.

9.4 Each RTA shall submit each corrective action plan to Staff with a request for review and approval. If the corrective action plan is acceptable to Staff, Staff shall issue a formal letter to the RTA approving the corrective action plan as consistent with Sections 9.1 and 9.2, best industry practices, and in furtherance of the public’s interest in system safety and security. If it is unacceptable to Staff, Staff shall identify the areas in the plan that, in its determination, require correction, and communicate that information to the RTA. If the RTA does not agree with the rejection, RTA shall meet and confer with Staff in an effort to resolve this disagreement. If no resolution is

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achieved through negotiation, the RTA shall apply to the Commission for approval pursuant to the application procedure under the Commission’s Rules of Practice and Procedure.

9.5 If the National Transportation Safety Board (NTSB) investigates an accident involving an RTA, Staff and the RTA shall meet to address NTSB’s findings and determine the appropriate corrective actions to be taken based on those findings and all other information available on the incident.

9.6 Each RTA shall submit to Staff verification that the corrective action(s) has been implemented as described in the corrective action plan, or that a proposed alternate action(s) has been implemented with the agreement of Staff.

Evidence shows that BART provided perfunctory interim status updates every 30 days,138 and finally submitted its Final Investigative Report to SED on January 11, 2017.139 There is no evidence of the required and adequate companion document -- Corrective Action Plan -- having been submitted by BART and approved by Commission’s staff in compliance with the GO 164-D requirements. That said, we acknowledge BART substantially and tardily submitted a separate and sparse two-page corrective action plan on January 12, 2017, well over 3 years from the date of the Accident. In it, BART contends that it convened a group to review and update its rules and reissued certain safety policy bulletins and memos. This January 12, 2017 document does not meet the letter or intent of the required corrective action plan for an accident of this magnitude and the seriousness of the issues this Accident presented.

138 Exh. BART 107 at 8:25-9:6; 84; 85; 98; 99.139 Hearing Tr. 487:15-488:8.

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Moreover, evidence does not show BART’s diligence in preparation of Investigative Report and/or Corrective Action Plan or anything that would have excused BART from submitting timely and adequate submissions, as required in GO 164-D. BART’s tardy Investigation Report and a Corrective Action Plan, submitted a day later,140 in part, show that BART took some actions (banned Simple Approval process, conducted some general safety retraining, and performed some process review recommended by NTSB), but they are simply not enough and does not meet the above-detailed GO 164-D requirements or effectively correct the glaring misconduct and actions of these managers and those who stood by without correcting a seriously troubling culture or attitude towards safety and safety rules.

Lastly, BART’s two excuses for its delay (that the NDA restricted the release of its report and that SED did not ask for the report) are unpersuasive. Clear terms of the NDA allow processes for release of information, as opposed to NTSB’s findings, opinions, etc., for safety and other agency need and authorizes the IIC to permit such release.141 BART’s duty to submit the report is independent of SED; thus, it does not matter whether SED asked or did not ask for it.

BART violated GO 164-D, Section 8.3 by failing to timely submit its accident report, which BART provided to SED on January 11, 2017.142 Evidence shows that BART takes little ownership for its inexcusable delay of approximately 16 months (from December 20, 2013 (when that investigation report was initially due) to April of 140 Exh. BART 103 (BART tardily submitted a sparse two-page corrective action plan on January 12, 2017, well over 3 years from the date of the Accident.)141 Exh. Comm-1.142 Exh. BART 102.

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2015 when NTSB released its Accident Brief) plus about 20 more months (from April 2015 when NTSB released its Accident Brief to January 11, 2017) to submit this report. This almost three years of delay in BART’s submission of its investigation report also affected timely and adequate identification of the Trainer’s failings as overall safety culture concerns and development of appropriate and related corrective actions and abatement. BART claims that it began abatement immediately after the Accident and did not wait for completion of its accident report.143 However, the point of timely submission of this investigation report and corrective action plan is to enable the Commission to review, monitor and direct, as needed, to ensure that appropriate, prudent and adequate corrective plan is devised and implemented to redress the underlying violations. As discussed, that did not occur here.

This is a serious and continuing violation, which was further aggravated by the fact that BART (on its own initiative) failed to take any effective action to timely identify and address the actions of its managers and senior employees (see Section 4.2.8), Trainer’s conduct and BART’s safety culture at its management and senior employee levels. This violation is an egregious violation that is critical to our timely accident review, response and safety oversight, and this violation evidences total and continuing disregard for the Commission’s process and safety oversight role. Therefore, we reject SED’s recommendation to impose a fine of only $100,000 relating to this violation.

Under the circumstances, a total fine of $1,048,000 (at $4,000 per day) is assessed for a continuing violation from April 1, 2016 to

143 Exh. BART 103.

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January 11, 2017 – a total of 262 days. For purpose of fine, violations from December 20, 2013 (60th day after the Accident, when the report was initially due) to March 30, 2016, more than two years of delay, is excused. We are excusing this substantial delay period based on equitable consideration since SED too did not file its SED’s Final Report until March of 2016, and we tacitly excused SED’s tardiness.

4.2.8. Five BART Managers and Senior Level Employees (Train Operator Trainees and Observers) Violated GO 172 Zero Tolerance Policy

While SED did not explicitly argue this point, nor allege this conduct to be violations for which fines should be imposed, the undisputed evidence presented in this case shows serious and disturbing violations by the five managers and senior level employees on board, as observer and/or trainees, who for hours watched Trainer on the phone and texting in violation of GO 172 and BART’s explicit PED prohibition policy and seemingly did nothing. On top of that, BART’s investigation and response to the Accident gave no import to this highly disturbing behavior by its five managers and senior employees blatantly and continuously disregarding GO 172 prohibition and its own safety bulletin noting and warning zero tolerance for such PED use.

Preponderance of evidence, including BART’s own Police Report and multitude of witness statements by BART managers and senior level employees, BART’s investigation Report, NTSB investigation interview transcripts of the managers and senior level employees, video evidence, cellphone bill of Trainer Paul Liston and SED’s Final Report, shows that none of the five managers and senior level

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employees (excluding Trainer) on board the incident train provided any statement that any one of them at any time made any effort to stop, warn, discourage, obstruct, correct or otherwise report Trainer from openly carrying (as visible from in-cab video) and continuously texting (as corroborated by cellphone bill) in violation of GO 172 and BART’s own policy.

These are BART’s high level managers and senior level employees entrusted with managing, overseeing and modeling safety to their subordinates and other BART employees. They are responsible for leading by example and enforcing BART’s safety culture, rules and Zero Tolerance policies, such as GO 172. None of them stepped up in any way. Moreover, even BART’s final Investigation Report completely misses the point on this egregious and uniform disregard for the safety rule (e.g. GO 172) of its high level managers and senior level employees. There is no mention of this uniform and disturbing behavior by all of these BART managers and senior level employees of looking the other way. Similarly, there is no mention of Zero Tolerance policy having been reinforced, reminded or enforced in any manner whatsoever against any of them, including Trainer.

While BART argues that its rules meet or exceed the industry standards, we are perplexed and disturbed by this argument. This Accident resulted because rules were ignored and not followed, not that rules fell below industry standard. The fix for a situation where safety rules are being ignored cannot be to just create more rules or modify rules. The heart of the problem here is not the safety rules but a serious safety culture problem at BART. It may be ineffective training, deficient safety culture and/or ineffective enforcement of the

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safety rules such that they are ignored in practice, starting somewhere high at the its managerial level.

As such, assuming arguendo that BART had or now has safety rules that meet the industry standards, that means nothing, if BART managers and senior employees do not follow and reinforce them and exercise diligence to model and ensure safety culture as a priority, by (1) training and supporting employees; (2) complying with safety rules and leading by example; and (3) enforcing those rules, when violated, by promptly intervening and taking appropriate corrective and/or disciplinary actions. Moreover, GO 172, Section 2.11 provides:

Zero-Tolerance Policy means a policy where the consequences to a person who does not comply with the PED use prohibitions of this General Order are written, automatic, specific, and non-discretionary. The policy may provide different consequences for different levels of risk that a particular non-compliant act could pose, as long as these levels and consequences are explicitly described in the policy.

GO 172, Section 5 requires the RTAs, including BART, to implement a “zero-tolerance policy and program” as follows:

5. Requirements to Implement a Zero-Tolerance Policy and Program

5.1. Each RTA shall develop, implement, and comply with a Zero Tolerance policy and program regarding prohibited PED usage. The policy shall include discipline up to and including discharge.

5.2. RTAs shall include or reference their zero-tolerance policy and program in their SSPP and rail operations rules.a. The RTA’s zero-tolerance policy and program shall

include actions sufficiently serious to be reasonably expected to prevent violations of this General Order.

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b. Within 90 days of the effective date of this General Order, each RTA must file its zero-tolerance policy and program with the Commission.

c. The policies must describe the actions the RTA will take to address violations, as well as the process afforded the employee to appeal the violation and discipline.

d. RTAs shall keep records of violations of PED use prohibitions and make them available to Commission staff upon request.

5.3. RTAs shall notify and instruct their employees on the provisions of the RTA’s PED zero-tolerance policy and program regarding electronic device use. Each RTA shall provide a refresher course on its zero-tolerance policy and program at least every two (2) years. Records showing compliance with this requirement shall be maintained for a minimum of three (3) years.

5.4. Each RTA shall post a PED use prohibition reminder decal inside each rail transit vehicle cab and on the passenger-facing side of the cab door on rail transit passenger vehicles. This notice shall also be placed at all locations where RTA employees report for duty.

While we feel that these facts show egregious violations, SED never alleged them and BART was not charged. Therefore, no fine will be assessed for them. However, as expressly noted in the Assigned Commissioner’s Scoping Memo Ruling dated December 2016, the central focus of the OII/OSC is on the Accident, the circumstances surrounding the Accident and BART’s role relating to the Accident. The Scoping Memo Ruling also explicitly noted the Commission’s intent to review and determine whether to assess “fines and/or sanctions [against BART] for violations of any applicable safety rules and regulations.” As noted in the Scoping Memo Ruling, this review was to include, review of “BART’s safety culture and accident prevention procedures” and “Whether BART’s safety culture

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and accident prevention procedures contributed in any way to the Accident. If so, how?”

In that context and with the longstanding backdrop of D.98-12-075 (the Commission’s decision setting forth those factors, including totality of circumstances, for consideration in testing the reasonableness of fine), we look at the totality of circumstances in our fine assessment regarding BART’s violations which were proven by preponderance of evidence. In doing so, we will view the above surrounding circumstances regarding the bystanders (managers and senior level employees) as one of the aggravating factors (see Section 4.2.8 below) which reflect BART’s poor safety culture at BART’s management and senior level and disregard for safety of California’s transit workers and the public.

4.2.9. BART Failed to Ban SimpleApproval During the Strike

SED failed to present competent and persuasive evidence to prove by preponderance of evidence that BART’s decision not to ban Simple Approval during the Strike violated any industry standard or rules, policies, or requirements.

It is true that Simple Approval Rule places a large amount of safety judgment and responsibility on wayside workers. The workers must make sure s/he has a watchperson advising the worker of any approaching train. Worker and watchperson then must determine or identify safe area to which the worker can retreat. Worker and watchperson then must also determine whether the track location allows them at least 15 seconds (e.g. not on a curve or other unsafe locations where the workers will not have 15 seconds to retreat upon observing a moving train) before the arrival of a train for the worker

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to retreat to safety. In addition, we know that the trains are not slowed during a grant of Simple Approval, but the train’s speed under Work Orders is reduced to approximately 27 miles per hour.144

Under BART’s OR&P 6206, if the OCC is aware of unusual conditions that could prevent the workers from providing its own protection from train movement, the OCC has the authority to deny a Simple Approval request and instead trigger a Work Order to provide safe working condition for the workers without unreasonably impacting revenue service operations.145

Evidence shows that, during the Strike, the necessity for maintaining train schedules was not important since there were no passenger trains and no schedules to meet. In fact, the only moving train at the time of the Accident was the train being operated by Trainee, who was operating for the first day as his On-the-Job Training day.146

Based thereon, SED argues that BART management and OCC, under BART’s OR&P 6206, should have banned or otherwise suspended the use of Simple Approval procedures during the Strike, and only permitted work under Work Orders for safer BART system and its wayside workers. In support of that proposition, SED offered witness testimony that because the Strike limited BART’s operations, OCC should have viewed the operating conditions as sufficiently unusual to deny the requested Simple Approval.

144 OR&P, rev. 6.2, 2008 Exh. SED 28 at Definitions (RESTRICTED SPEED: 18 or 27 mph maximum speed ATO, imposed through the Automatic Train Protection subsystem using key activated switches in the local Train Control Room.)145 Exh. SED 28 at OR&P 6206.146 Exh. SED 2 at 52 of 112 (There was no train active on all of BART tracks, except for possibly one other train operating for maintenance purpose.)

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BART disagrees. Instead, BART argues that because fewer trains were operating, the workers’ ability to provide their own protection from train movement was enhanced during the Strike, not diminished. More importantly, BART also points out that SED’s Final Report failed to find that BART violated OR&P 6206.147

In addition, BART’s Assistant General Manager of Operations, Mr. Oversier also explained, the party requesting the Simple Approval is in the best position to know the type of work to be performed and the level of protection required.148 As such, the requester has and should have the initial responsibility of determining what access to request.149 While acknowledging that OCC has some discretion (to grant or deny Simple Approval request), that discretion is triggered only when OCC actually possesses specific information calling into doubt the ability of the requester to provide self-protection.150

In this proceeding, there was no evidence that Mr. Edwards, BART’s OCC Manager on duty, possessed such information when he granted the workers’ Simple Approval request. Instead, the evidence showed that Mr. Edwards was properly trained and certified on the day of the Accident,151 and there was nothing unusual about the workers’ Simple Approval request that would have called into doubt the worker’s judgment of the track location and his ability to provide own protection.

147 Exh. BART 95 at 17.148 Hearing Tr. 455:9-456:14.149 Ibid.150 Id. at 456:22-457:26.151 Exhibits SED 36; 46.

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Weighing the foregoing, we find SED has failed to meet its burden of establishing this violation.

4.3. Three-year Probation As discussed in Section 4.2 of this Decision, this Decision

imposes a fine of $1,348,000. This decision also stays one half of the total fine (leaving $674,000, the remaining half of the total fine) and places BART on three-year probation. We do this in recognition of BART’s public agency status while holding BART and its management accountable for these violations by its managers and senior employees. Three-year probation is appropriate in this instance to keep close scrutiny over BART, its managers and senior level employees, to ensure the types of safety violations we found in this investigation do not recur and BART’s organizational safety culture is strengthened. This combination of remedies results in redirection of the stayed fine to BART’s actual safety improvements, accountability and culture change to benefit BART, its workers and public.

Here, we are looking at egregious BART managers’ and senior employees’ actions and BART’s systemic safety failures as evidenced by those actions, not just the Accident itself. The remedies we devise, below, recognize that BART is a public agency. More importantly, they are well within our broad enforcement authorities, discussed above, forward looking and designed to ensure that BART and its management will ensure the utmost safe practices and procedures to maintain and operate BART system safely going forward.

Specifically, in lieu of the one half of assessed fine (stayed portion of the fine), BART shall be placed on probation for three years. During the probationary period, BART is directed to:

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(1)Post at least one sign, no smaller than 14” by 18” in dimensions, at each of its BART station which states (a) the Commission has found that BART has violated safety rules; (b) the Commission has assessed a fine of $1,348,000 for the safety violations; and (c) the Commission has stayed one half of the total assessed fine on condition that BART complies with the Decision and improves its safety rules, practices, policies or procedures as ordered;

(2)Begin tracking and submit by January 30 of each year, its annual report of all applicable violations of safety rules, practices, policies or procedures and details of corrective actions taken including disciplinary actions (local, state, federal, internal and external safety rules), including violations similar to those found in this proceeding;

(3)Reevaluate its current safety training programs and culture and devise and begin implementing a plan to improve the effectiveness of its current safety training programs and methods of improving its safety culture throughout the organization;

(4)Develop and begin implementing annual safety rules, practices, policies, procedures and culture refresher courses for all of its managers and senior employees who are entrusted to comply with and/or enforce worker safety rules, practices, policies, procedures and/or culture, of no less than 40 hours, and annually submit certifications for each manager and senior employee who completed the refresher; and

(5)Annually brief the Commission by appearing, no later than May 1 of each year, before the Commission to present its annual safety report and all updates on BART’s efforts to continually improve its safety culture and enhanced compliance with all of the applicable safety rules, practices, policies and procedures.

During the probationary period, the Commission’s SED shall:

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(1) Monitor BART’s safety practices and compliance with this Decision and maintain record of SED’s monitoring;

(2) Report and recommend to the Commission’s Executive Director of any and all safety violations or non-compliances with this Decision by BART and any recommended Commission actions, if any, against BART, including recommendation to (a) institute any Order Instituting Investigation and Order to Show Cause why the Commission should not extend the probationary period, reinstitute the stayed portion of the fine ($674,000) and/or impose additional fine and/or additional corrective actions (in addition to the reinstitution of stayed portion of the fine and corrective actions ordered in this Decision) for serious or egregious safety violations or non-compliances with this Decision and/or (b) issue one or more citations through its Resolution ST-163 authority to cite BART for less serious non-compliances as appropriate by SED; and

(3) No later than nine months prior to the expiration of BART’s probation, prepare and file SED’s final recommendation (as a compliance filing) on whether BART’s probation should be extended beyond three years with justifications of its recommendation based on information SED has acquired during its monitoring and oversight activities.

During the probationary period, the Commission’s Executive Director shall:

(1) Review the Commission’s SED’ report(s) and recommendation(s) of any and all safety violations or non-compliances with this Decision by BART and any recommended Commission actions, if any, against BART, including recommendation(s) to (a) institute any Order Instituting Investigation and Order to Show Cause (OII/OSC) why the Commission should not extend the probationary period, reinstitute the stayed portion of the fine ($674,000) and/or impose additional fine and/or

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additional corrective actions (in addition to the reinstitution of stayed portion of the fine and corrective actions ordered in this Decision) for serious or egregious safety violations or non-compliances with this Decision and/or (b) issue one or more citations through its Resolution ST-163 authority to cite BART for less serious non-compliances as appropriate by the Commission’s Safety and Enforcement Division;

(2) Determine whether there is sufficient ground to (a) institute any Order Instituting Investigation and Order to Show Cause why the Commission should not extend the probationary period, reinstitute the stayed portion of the fine ($674,000) and/or impose additional fine and/or additional corrective actions (in addition to the reinstitution of stayed portion of the fine and corrective actions ordered in this Decision) for serious or egregious safety violations or non-compliances with this Decision and/or (b) issue one or more citations through its Resolution ST-163 authority to cite BART for less serious non-compliances as appropriate by the Commission’s Safety and Enforcement Division; and

(3) Take all action necessary and appropriate to initiate an OII/OSC or citation process as the circumstances justify.

For purposes of the Executive Director’s review, there is sufficient ground to institute an OII/OSC as to why the Commission should not extend the probationary period, reinstitute the stayed portion of the fine ($674,000) and/or impose additional fine and/or additional corrective actions (in addition to the reinstitution of stayed portion of the fine and corrective actions ordered in this Decision) for serious or egregious safety violations or non-compliances with this Decision, if preliminary findings and recommendations by SED show that:

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(1)BART failed to substantially comply with or has violated Ordering Paragraphs 1, 2, 3 or 5 of this Decision;

(2)BART committed safety violation(s) same or similar to those found in this Decision;

(3)BART committed safety violations dissimilar to those found in this Decision but nonetheless posing immediate hazard to life, health, safety, property, or the public safety; and/or

(4)BART committed three or more other minor violations of safety rules or this Decision.

For purposes of the Executive Director’s review, there is sufficient ground to instruct SED, if none has been issued, to issue one or more citations through its Resolution ST-163 authority to cite BART for less serious non-compliances of the safety rules and this Decision than those identified in Decision.

If prior to the expiration of the herein OII/OSC, another OII/OSC is instituted or one or more citation is/are issued and pending, the probationary period shall automatically be extended until that subsequent OII/OSC and the last of the pending citations, if any, is resolved and the applicable time for appellate review for the same has lapsed.

This probationary period will expire in three years, unless the probationary period is extended pursuant to Ordering Paragraph 7(d) and 7(e) or the Commission extends this probationary period before its expiration based on good cause shown during the probationary period.

4.4. Reasonableness of Fine and D.98-12-075 AnalysisUnder §§ 2107 and 2108, the total fine assessed in this Decision

is $1,348,000, as set forth in Section 4.2 of this Decision. However,

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upon review of the D.98-12-075 factors and considering the overall public interest concerns, including the fact that BART is a public agency, we have devised a set of directives which ensure safer BART practices and culture going forward, while staying one half of the fine to promote other safety directives in this Decision. As discussed below, the fine assessed here, combined with the three-year probation and stay of one half of the total fine, is reasonable under D.98-12-075 five-factor analysis.

D.98-12-075 sets forth the following five factors that must be examined in determining whether the fine is reasonable:

(1) The severity of the offense, including consideration of economic harm, physical harm, harm to the regulatory process, and number and scope of violations, with violations that cause physical harm to people or property being considered the most severe and violations that threatened such harm closely following;

(2) The conduct of the utility in preventing, detecting, disclosing and rectifying the violation;

(3) The financial resources of the utility (to ensure that the degree of wrongdoing comports with the amount of fine and is relative to the utility’s financial resources such that the amount will be an effective deterrence for that utility while not exceeding the constitutional limits on excessive fines);

(4) The amount of fine in the context of prior Commission decisions; and

(5) The totality of the circumstances in furtherance of the public interest.152

152 D.98-12-075, 1998 Cal. PUC LEXIS 1016, at 10 (listing the five factors), and 71-78.

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The above factors closely mirror the considerations listed in § 2104.5.153 While that Code section applies to gas pipeline safety, the Commission has analogously applied its considerations in other types of proceedings.154

4.4.1. Severity of OffenseThe first factor under D.98-12-075 is the severity the offense.

As discussed here, the severity of the offense factor takes into account physical and economic harms, harm to the regulatory process and the number and scope of violation. In view of those four considerations, as discussed below, we conclude that severity of offense here is very high.

We note that the most apparent and notable of the considerations here is the physical harm. D.98-12-075 provides that the most severe violations are those that cause physical harm to people or property, with violations that threatened such harm closely following.155 Here, it is undisputed that two human lives have been 153 See Code § 2104.5 (weighing factors including the size of a business, the gravity of the violation/s, and the good faith of the business to achieve compliance when assessing the reasonableness of a fine.) 154 See, e.g., D.11-11-001 (Order Instituting Investigation into the Operations and Practices of Pacific Gas and Electric Company, Regarding the Gas Explosion and Fire on December 24, 2008 in Rancho Cordova, California in Proceeding No. I.10-11-013); D.08-09-038 (Order Instituting Investigation into the Practices of the Southern California Edison Company to Determine the Violations of the Laws, Rules, and Regulations Governing Performance Based Ratemaking, its Monitoring and Reporting to the Commission, Refunds to Customers and Other Relief, and Future Performance Based Ratemaking for this Utility in Proceeding No. I.06-06-014); D.04-09-062 (Order Instituting Investigation into the operations, practices, and conduct of Pacific Bell Wireless LLC dba Cingular Wireless, U-3060, U-4135 and U-4314, and related entities to determine whether Cingular has violated the laws, rules and regulations of this State in its sale of cellular telephone equipment and service and its collection of an Early Termination Fee and other penalties from consumers in Investigation in Proceeding No. I.02-06-003).155 D.98-12-075; 1998 CPUC2d 1016, at 188-190.

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lost as result of this Accident. This is the most severe form of offense or violation.

As for economic harm, D.98-12-075 provides that the severity of a violation increases with (i) the level of costs imposed on the victims of the violation, and (ii) the unlawful benefits gained by the public utility. Here, we have significant financial impacts to the families of the decedents, approximately $76,000156 in property damage for BART and no evidence of unlawful gain or benefit to BART resulting from this Accident. Although the total economic harm figure for this Accident have not been quantified and presented, we can reasonably infer that they are undoubtedly significant with two lives that perished and the ripple effects to their families.

As for the harm to the regulatory process, D.98-12-075 provides that a “high level of severity will be accorded to violations of statutory or Commission directives, including violations of reporting or compliance requirements.” The facts underlying this OII/OSC involve allegations of direct and blatant violation by a high level BART manager of the Commission’s GO 172 as well as violations of numerous safety rules that the Commission approved and otherwise decreed to be complied with and enforced by BART. The circumstances surrounding this Accident demonstrates complete disregard of the Commission’s GO 172, BART’s own zero tolerance PED prohibition policy and BART’s other safety rules by all the BART managers and the senior level employees involved in the Accident. This is not a one-off situation, as BART repeatedly argues. This is a string of disturbing violations, which when viewed together show a poor safety culture. In addition, the investigation report

156 Exh. SED 9.

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requirements and corrective action plan requirements, of GO 164-D, associated with this Accident were also completely disregarded here, and when submitted, they were completely lacking and accompanied by excuse after excuse. No sense of regret or accountability was shown by BART. Moreover, the corrective action plan was not only severely tardy, but as discussed earlier in this Decision, it completely missed the real lessons from this tragic Accident and BART’s management’s safety culture implications. In fact, the evidence showed that corrective actions taken show responses but not effective responses by BART of its managers’ and senior employees’ misconduct surrounding the alleged violations. All of the foregoing compounds and amplifies the significance of the harm to regulatory process.

Last of the consideration for the severity of offense review is the number and scope of violations. D.98-12-075 provides that “A single violation is less severe than multiple offenses. A widespread violation that affects many consumers is a more severe than one that is limited in scope. For a ‘continuing offense,’ [ ] Code § 2108 counts each day as a separate offense.” Here, in this OII/OSC, we see a large list of proven violations surrounding the Accident, all committed by BART managers, with managers and senior employees who should have been role models and enforcers of BART’s safety rules and safety culture standing by and watching. Some violations (e.g. the investigation report requirements and corrective action plan requirements associated with this Accident) were continuing violations.

Thus, the proven violations are highly troubling in many respects and should be viewed, in the overall severity spectrum

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scheme, as one of the severest of offenses. Therefore, we find that the total assessed fine of $1,348,000, combined with the three-year probation and stay of one half of the total fine, is reasonable under these circumstances and comports with the severity of offenses in this proceeding.

4.4.2. Conduct of the UtilityThe second factor under D.98-12-075 focuses on the utility’s

actions in preventing, detecting, disclosing and rectifying the violation. In view of BART’s managers’ and senior employees’ conduct as well as the totality of the surrounding circumstances including BART’s post-Accident response here, we find that the total assessed fine, combined with the three-year probation and stay of one half of the total fine, is reasonable. As discussed here, BART admits to its managers’ safety rule violations surrounding the Accident. Then there are the actions and inactions of BART’s managers and senior level employees on the incident train who watched the Trainer’s safety rule violations. Relatedly, there is no evidence of any BART management response to or corrective actions regarding any of those managers and senior level employees.

In fact, instead of addressing the gravity of its managers’ and senior employee‘s total disregard for the safety rules, BART focuses on the rules review while merely justifying the underlying violations as “one-off” violations. While BART did reissue some safety bulletins with retraining to its wayside workers, BART management’s post-Accident response wholly insufficient and completely missed the point by not effectively addressing the managers’ and senior employees’ actions and inactions. In turn, what resulted was (1) less than meaningful comprehensive corrective actions being taken by BART;

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(2) no meaningful and corrective action against the managers and senior employees; and (3) no meaningful and corrective action to send effective messages to its employees that such disregard for safety rules will not be tolerated.

Here, we looked at BART managers’ safety violations surrounding the Accident, BART’s failure to take timely and adequate investigative and corrective actions and BART’s management’s inadequate post-accident response. These facts evidence high culpability. Moreover, BART’s post-Accident actions do not demonstrate that it truly understands, regrets and accepts accountability. BART also presented meager evidence of mitigation. Likewise, BART presented no evidence that it took effective corrective action against any of the managers involved. These latter variables further evidence and support BART’s high culpability.

Upon weighing the above facts, on balance, we find that the total assessed fine of $1,348,000, combined with the three-year probation and stay of one half of the total fine, is reasonable under these circumstances and comports with BART’s culpability here.

4.4.3. Financial Resources of the Utility The third factor is the financial resources of the utility. Here,

the Commission must ensure against excessive fines while imposing an effective fine.157 In D.98-12-075, the Commission explained:

Effective deterrence … requires that the Commission recognize the financial resources of the public utility in setting a fine which balances the need for deterrence with the constitutional limitations on excessive fines. Some California utilities are among the largest corporations in the United States and others are extremely modest, one-person operations.

157 Exh. 16; see also D.98-12-075 at 7.

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What is accounting rounding error to one company is annual revenue to another. The Commission intends to adjust fine levels to achieve the objective of deterrence, without becoming excessive, based on each utility’s financial resources.158

In other words, an effective fine is one that reflects the severity of the harm at issue (the first factor examined above) and is also proportionate to the offending entity. Here, the fine therefore should be high enough to impact BART in such a way to deter future similar violations, yet not excessive in proportion to gravity of the violation and their resulting impact – sort of a sliding scale.159

We recognize that BART is a public agency, with a $1.57 billion budget for 2016 fiscal year,160 and that it is running at deficit.161 However, here, we are looking at blatant safety violations committed by BART’s managers. Moreover, the surrounding circumstances evidence serious aggravating factors, including the actions/inactions of the senior employees and BART’s failure to take responsibility and take adequate and effective responsive and corrective measures. Historically and as matter of policy, the Commission has generally been reluctant to impose fine as against public agencies. Today, however, we cannot allow BART to hide behind our historic policy to escape fine under these egregious circumstances. Therefore, we are compelled to find that these safety violations by BART must be met

158 D.98-12-075, 1998 Cal. PUC LEXIS 1016, at 58-59. 159 Ibid.160 SED’s Opening Brief at 13, fn 5. (BART’s Fiscal Year 2016 Preliminary Budget Memo, www.bart.gov/sites/default/files/docs/FY16 PBM FINAL 03.31.15.pdf (March 31, 2015) at 8; see also “BART 2016 budget: $1.57 billion,” Railway Age, June 13, 2015, http://www.railwayage.com/index.php/passenger/rapid-transit/bart-2016-budget- dol157-billion.html.)161 BART’s Opening Brief at 18.

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with the fine we assess here. It is invariable that some financial impact of the fine will fall on its riders and public, who may face increased fees or reduced safety and service. We reiterate that the changes we hope to see in BART’s management culture and improved BART worker safety through the combination of remedies devised in this Decision are in protection of those riders and greater public interest. Hence, in view of the totality of circumstances, the assessed fine of $1,348,000, combined with the three-year probation and stay of one half of the total fine, is justified and not excessive.

In D.15-08-031, the Commission acknowledged this concern with high fines against other public agencies. The Commission in that instance imposed the fine but explained why fine should still be imposed despite the fact that “[w]e are generally reluctant to assess fines against other public agencies. . . [h]owever where, as here, the issue is compliance with our safety jurisdiction we must exercise the full range of our enforcement provisions.”162

Likewise, here, we find that the total assessed fine of $1,348,000, combined with the three-year probation and stay of one half of the total fine, is reasonable under the circumstances. This combination of remedies, which stays one half of the assessed fine (to be paid in three installments), comports with the degree of wrongdoing and is relative to BART’s financial resources such that the amount will be an effective deterrence for BART while not exceeding the constitutional limits on excessive fines.

4.4.4. Comparisons to Prior Commission DecisionsThe fourth factor is whether the fine is reasonable in light of the

Commission’s prior decisions. SED identified no recent decisions in 162 D.15-08-031 at 23.

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its briefs in support of its recommendations for maximum daily fine for each of the alleged violations. BART identified and argued in its briefs, inter alia, that two recent Commission decisions involving BART’s Northern California peer agencies should be looked to for guidance in imposing a fine here. BART, alternatively argued that Appendix A of Resolution ST-163 should be referred to for guidance in setting the appropriate fine amount in this proceeding. As discussed below, we adopt maximum fine for most of the alleged violations and find the two decisions and Appendix A of Resolution ST-163, cited by BART, inapposite here.

We will address the two decisions BART cited. The first decision cited by BART is D.15-08-031 (SFMTA OII Decision). It involved an OII to investigate San Francisco Municipal Transportation Agency (SFMTA) for its alleged failure to enforce certain safety rules and delaying an SED inspection, in violation of, inter alia, a prior settlement. SFMTA OII Decision arose from the settlement agreement referred to in that decision which had resulted from a different prior OII (Prior SFMTA OII Decision). That Prior SFMTA OII Decision looked into the general public safety practices and conduct of the San Francisco Municipal Transportation Agency, which resulted in D.12-05-016.

Applying the factors under D.98-12-075, SFMTA OII Decision cited by BART is distinguishable from the instant proceeding in several significant respects. Most notably, as to the first of the D.98-12-075 factor (the severity of the offense, including consideration of economic harm, physical harm, harm to the regulatory process, and number and scope of violations, with violations that cause physical harm to people or property being considered the most severe and

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violations that threatened such harm closely following), the instant OII involves a double fatality, not violation of settlement terms as was the central issue in the SFMTA OII Decision. As discussed at great length in the foregoing Section 4.4.1 of this Decision and most glaringly, two lives were lost and their families have suffered immeasurably, as opposed to the facts in play in the SFMTA OII.

In addition, our review of the evidence in this instant proceeding concerning the second factor (the conduct of the utility in preventing, detecting, disclosing and rectifying the violation) also do not align in any way with what occurred in the cited SFMTA OII Decision. SFMTA accepted full responsibility for the underlying unsafe conditions, while BART contends, and still maintains, it has done its best in those areas, but seemingly took no action concerning its managers’ and the senior employees’ conduct at issue. BART also stands by its continued (years of) failure to prepare and submit a comprehensive investigation and corrective action reports/plans. Here, evidence shows failings illustrated by its managers’ actions/violations of safety rules and ineffective or insufficient evidence showing that such managers’ actions/violations of safety rules have been effectively remedied.

For these reasons and other differences in the surrounding circumstances, we find that this instant OII/OSC is distinguishable from SFMTA OII Decision. Therefore, we do not find SFMTA OII Decision instructive to our assessment of the fine in this instant OII/OSC and dismiss its application here.

The second decision BART cites, Resolution ALJ-332 issued on December 3, 2015, arose out of a citation appeal, pursuant to Resolution ST-163, by SRTD. In that case, SED had issued a citation

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for two safety rule violations involving an SRTD light rail vehicle maintenance worker violative of a different GO governing light rail vehicles. At a first glance, the most apparent difference from herein BART violations and those involved in SRTD’s case is that BART trains are heavy rail and not light rail vehicles and different GOs were triggered. More significant differences between the safety violations is that the first count in the SRTD’s appealed citation was for disabling a dead man control safety device by a single maintenance worker, and the second count was for disabling interlocking doors safety device by that same maintenance worker. There was no manager action involved. In addition, there were no lives lost.

Finally, and most importantly, unlike this instant OII/OSC, Resolution ALJ-332 resolves a citation appeal of a citation administratively issued by SED. Citation authorities and appeals pursuant to Resolution ST-163 relate to less serious violations than those rising to OIIs. Specifically, for such less serious violations, the Commission has explicitly delegated to SED the expeditious and ministerial authority to cite and assess corresponding penalties or fines. If and only when such citations are appealed, the Commission would review the citation to determine whether SED issued it in accordance with its delegated authorities. With Resolution ALJ-332, the Commission merely sustained the staff level citation and penalty assessed in that citation. It was not a formal investigation proceeding for which the Commission instituted an investigation, as was done here in the instant proceeding.

In sum, this instant proceeding does not involve such a citation, and it does not involve less serious violations deserving of being cited pursuant to Resolution ST-163 for resolution at that ministerial level.

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The instant OII/OSC involves two fatalities, with multiple egregious managers’ actions and other surrounding aggravating circumstances, while Resolution ALJ-332 involved one maintenance worker’s action. In part, for these reasons, we found cause to elevate this matter and issue the instant OII/OSC, rather than allowing the SED staff to handle it through the delegated citation process. Thus, application of Resolution ALJ-332 and the Resolution ST-163, which includes guidelines for civil penalties for less serious violations, is simply inapposite here.

BART also contends that its violations should be viewed as violations under Resolution ST-163, as though BART is being cited by an SED staff. As noted above, Resolution ST-163 involves the Commission’s delegation of citation and limited fine authority to SED as it relates to less serious violations. Specifically, for such less serious violations, the Commission has explicitly delegated to SED the expeditious and ministerial authority to cite and assess corresponding penalties. Here, the matter was deemed not appropriate for citation process and was serious enough to elevate it to this OII/OSC. As such, the minimal fines authorized under Resolution ST-163 do not apply to the violations and circumstances found in this proceeding.

Finally, BART argued that, if the Commission determines that fine is appropriate here, such fine should be no more than those set forth as guidelines in Resolution ST-163, Appendix A, and such fine should be stayed in the interest of public policy. We are not persuaded by this argument.

In sum, BART’s cited authorities in support of its argument against fine, were not persuasive. SED’s recommended maximum

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fine is adopted in most instances as we discussed in this Decision. As discussed above, “[w]e are generally reluctant to assess fines against other public agencies. . . [h]owever where, as here, the issue is compliance with our safety jurisdiction we must exercise the full range of our enforcement provisions.”163 Thus, in balancing all of the competing factors, the fine we impose here is justified by the compelling evidence and circumstances of this case and public interest considerations raised by the issues in this case. Accordingly, the fine we adopt here is, and must be, far greater than the ministerial fine amounts authorized by Resolution ST-163. Moreover, particularly with much of the fine being excused and the one half of that fine being stayed, the fine we adopt here is still far less than the fine we typically impose against energy utilities for safety violations.164

In recognition of BART’s public agency status, instead of maximum of $50,000 per day fine, we have substantially lowered the daily fine amount for severely untimely submission of BART’s investigation report and corrective action plan to only $4,000 per day (not $50,000 per day) for a continuing violation from April 1, 2016 to January 11, 2017. That is a huge reduction from $50,000 per day to only $4,000 per day for a period of 262 days of daily fine. Furthermore, in addition to the reduction in the amount of daily fine, we also excused BART’s severely untimely submission of its investigation report and corrective action plan for the period starting December 20, 2013 (60th day after the Accident, when the report was initially due) to March 30, 2016. In so doing, we excused well over

163 D.15-08-031 at 23.164 See PGE Kern case; see also Huntington Beach SCE case.

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two years of delay. That excused number of days calculated at $4,000 per day of fine results in $3,320,000 in excused total fine.

Based on the foregoing, we find that the total assessed fine of $1,348,000, combined with the three-year probation and stay of one half of that amount, is reasonable and in public interest.

4.4.5. Totality of the Circumstances The fifth and final factor we consider as we evaluate the

reasonableness of the fine is the totality of the circumstances, with an emphasis on protecting the public interest. As we discussed in detail above, we find that the fine of $1,348,000, combined with the three-year probation and stay of one half of the total fine, is reasonable looking at all the circumstances here. BART’s degree of wrongdoing, particularly the safety rule violations discussed above, are most troubling. Its post-Accident response further compounds our concerns about BART’s safety culture and practices. We cannot stress enough the importance of the safe practices and the attendant public interests. We must protect the public interest by assessing a fine here sufficient to deter another similar tragedy from recurring. In D.98-12-075, the Commission explained the policy of deterrence to justify a fine:

The purpose of a fine is to go beyond restitution to the victim and to effectively deter further violations by this perpetrator or others… Effective deterrence creates an incentive for public utilities to avoid violations. Deterrence is particularly important against violations which could result in public harm, and particularly against those where severe consequences could result. [Emphasis added.]165

165 D.98-12-075, at 54; (1998 Cal. PUC LEXIS 1016).

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Here, the total fine of $1,348,000 is assessed for deterrence purpose. However, one half of the total fine assessed is stayed, and in lieu thereof, BART must comply with several conditions designed to ensure a real change to BART management’s and senior employee level’s safety culture and practices, including the way BART managers and senior employees model safety practice as well as how they prioritize and enforce safety rules going forward. SED is also directed to monitor BART’s compliance with these probationary conditions to ensure full compliance. In addition, the Executive Director is authorized to take all action necessary and appropriate to initiate one or more OII/OSC or citation process as the circumstances arise during the probationary period to justify further enforcement action against BART.

As discussed below, the combination of remedies we adopt in this Decision further numerous public interest benefits.

First, by ordering this fine of $1,348,000, combined with the three-year probation and stay of one half of the total fine, we send a message of financial impact and continuing reminder of accountability during probation to deter future similar safety violations by BART and other similar RTAs. In addition, we incentivize BART and other RTAs to work thoughtfully and diligently to ensure that similar accidents do not recur.

Second, BART’s roadway workers will benefit from this Decision’s directives placing BART on a three-year probation and the related requirements to ensure a real change to BART top to bottom safety culture and practices, including the way BART managers and senior employees model safety practice as well as how they prioritize and enforce safety rules going forward.

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Third, by adopting this fine along with the probationary terms discussed in Section 4.3 of this Decision and ordered herein, which includes annual tracking, reporting and briefing to the Commission, BART’s progress will be carefully scrutinized and BART will be held accountable.

Finally, by staying one half of the total assessed fine, we are able to hold BART accountable while partially shielding its riders and public from being unduly burdened by the entirety of the fine for BART managers’ and management’s conduct.

The combination of remedies we adopt in this Decision achieves all of the foregoing public interest benefits. For these reasons, we find that the proposed fine of $1,348,000, combined with the three-year probation and stay of one half of the total fine, is reasonable.

4.5. BART’s ArgumentsWhile admitting that its veteran managers (involved in the

Accident) blatantly violated its safety rules, BART characterizes these violations as “one-off violations” and argues against any fine based on several arguments. BART’s main arguments are:

(1) SED failed to give adequate notice of § 451 violation allegations because SED did not specifically identify § 451 as the basis for its allegations of safety violations and that violates BART’s due process rights due to inadequate notice;

(2) Section 451 cannot be a standalone violation and basis for fine; and

(3) Internal BART rule violation cannot serve as basis for fine, and D.15-04-023 does not apply because it is distinguishable.

We find these arguments unpersuasive, as discussed below.

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4.5.1. Adequate Notice of § 451 AllegationsBART argues that SED failed to specifically and timely identify

and cite § 451 as the basis for its allegations of violations of BART’s internal safety rules and practices, until three days before the evidentiary hearing.166 Therefore, BART was not afforded adequate notice of the alleged § 451 violations, and in turn, BART was not afforded due process concerning the alleged § 451 violations. As discussed below, we find that there was adequate notice. Therefore, there is no due process violation here.

It is settled law that administrative pleadings are not subject to the strict rules applicable to pleadings in civil or criminal proceedings.167 Fair notice to the respondent is far more important than rigid compliance with technical pleadings rules.168

The Supreme Court in Mullane v Central Hanover Bank & Trust Co., 339 US 306, 314 (1950) held that to satisfy the constitutional requirement of due process, notice need only be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”169 The notice must be sufficient to enable the recipient to determine what is being proposed and what he must

166 BART contends that it was not until three business days before the hearing that SED first argued that § 451 permits it to prosecute violations of BART’s own safety rules. See SED Mtn. for Cont. of Hearing at 2-4. 167 California Administrative Hearing Practice, 2d.: 2016 Update, Section 3.8.168 Stearns v. Fair Employment Practice Comm’n (1971) 6 Cal.3d 205, 213; see also Cooper v. Board of Med. Exam’rs (1975) 49 Cal.App.3d 931, 942 (respondent was adequately informed of general substance of charges, such that lack of specificity on the pleading was found inconsequential under liberal pleadings rules.) 169 Mullane, supra, at 314.

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do to prevent the deprivation of his interest.170 Exactly what process is due varies to fit “the nature of the case”171 and will depend on the circumstances and subject matter involved.172 The purpose of the notice is to afford the respondent the opportunity to present a defense.173 No prejudice will be found if it appears from the record that the respondent was in fact able to prepare a defense.174

In Jaramillo v. State Bd. For Geologists & Geophysicists (2006) 136 Cal.App.4th 880, the Jaramillo court held that there was no denial of due process when the respondent was charged with a violation of Bus. & Prof. Code § 7832 (Geologist and Geophysicist Act). The respondent there argued that the cited section in the charging document only defined who was subject to that statute but that “it is not a violation statute” and that he was therefore not specifically charged with the potentially applicable enforcement statute nor the actual enforcement regulation (16 California Code of Regulations § 36062.1). The Jaramillo court reviewed the record of what the respondent had notice of (the allegations of underlying facts) and the opportunity that respondent was afforded to prepare his defense to protest and object to any aspect of the allegations. The Jaramillo court liberally construed the administrative charge as an allegation that respondent was a person subject to the provisions of that statute within the meaning of Bus. & Prof. Code § 7832 (Geologist and

170 Goldberg v. Kelly, 397 U.S. 254, 267-68 (1970).171 Mullane, supra, at 313.172 Hagar v. Reclamation Dist., 111 U.S. 701, 708 (1884); Id. at 708; accord, Hurtado v. California, 110 U.S. 516, 537 (1884).173 California Administrative Hearing Practice, 2d.: 2016 Update, Section 3.8.174 Ibid.

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Geophysicist Act) and was being charged as such for violations relating thereto.175

Specifically, even though there was no specific enforcement statute or regulation cited as part of the administrative charges, the court found there was adequate notice and no violation of due process or a fair hearing. The court also found that, though not expressly cited and charged, there were violations of 16 California Code of Regulations Section 36062.1 and imposition of administrative fine based thereon was proper.

In the herein OII/OSC, it would have been a far better prosecutorial practice to timely identify and cite allegations of § 451 violations relating to BART’s alleged internal safety rule violations. However, in view of the record, inter alia, the OII/OSC and the Scoping Memo Ruling, as well as the voluminous evidence and circumstances in this proceeding, including the Accident, investigations of the Accident, and various investigation reports of the Accident preceding the evidentiary hearing in this case, there is no mystery as to what BART was being charged to defend in the context of this OII/OSC proceeding.

For instance, the Final SED Report, discovery, Scoping Memo Ruling and pleadings all point to this OII focusing on examination of BART’s potentially unsafe practices relating to the Accident. Allegations of unsafe practices, which BART was on notice of defending is essentially the same as allegations of § 451 violations involving unsafe practices.

175 Jaramillo v. State Bd. For Geologists & Geophysicists (2006) 136 Cal.App.4th 880, 895.

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In addition, BART did not request additional time to present its defense of § 451 allegations when it was made by SED which BART admits occurred prior to the commencement of the evidentiary hearing.

Moreover, the safety rule violation allegations, extensive discovery history and totality of circumstances show that BART knew or should have known that these internal safety rule violation allegations were being identified to evidence SED’s claims of BART’s unsafe practice and culture. Even if that were not the case, BART was investigating the Accident internally to address its safety issues, so BART either knew or should have known of these safety and unsafe practice allegations and that they were at the heart of this proceeding. BART therefore had ample notice and opportunity to prepare and present its defense to show that such internal safety rules violations were not unsafe practices.

Under the circumstances, there is no prejudice here. In fact, rather than contesting that these safety rule violations occurred, BART admitted to each of them. Based thereon, we conclude that BART’s argument that there was insufficient notice or that there is a violation of its due process right are not supported by evidence and not persuasive.

4.5.2. Violation of § 451 Can be a Stand-alone Violation

BART argues that citation to § 451 alone cannot be a standalone basis for fine. BART distinguishes and dismisses SED’s citations to D.15-04-023 (resolving Order Instituting Investigation on the Commission’s Own Motion into the Operations and Practices of Pacific Gas and Electric Company to Determine Violations of Public

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Utilities Code Section 451, GO 112, and Other Applicable Standards, Laws, Rules and Regulations in Connection with the San Bruno Explosion and Fire on September 9, 2010 (San Bruno OII). BART argues that, in that case, it was more than just allegations of § 451 violations but that the allegations of § 451 violations were premised on violations of industry standards “…premised on expert opinions of independent consulting engineers.”176 We agree that allegations of § 451 alone is not enough as a standalone basis for fine. However, as in San Bruno OII, in this proceeding, we find, by preponderance of evidence, that violations of BART’s internal safety rules demonstrate violations of § 451. Here, such violations were proven, by competent and sufficient evidence, which serves as basis for the assessed fine.

In Pacific Bell Wireless, LLC v. Public Utilities Com. (Cingular) (2006) 140 Cal. App. 4th 718, the California Court of Appeal upheld the Commission’s imposition of a fine on a wireless carrier under § 451 and held: “Even in the absence of a specific statute, rule or order barring the imposition of an [early termination fee] without a grace period, or barring the specific nondisclosures identified by the Commission in this case, Cingular can be charged with knowing its actions violated § 451’s requirement” to “ provide ‘adequate, efficient, just and reasonable service’ to its customers.”177 That reasoning and conclusion apply here, and BART is, likewise, charged with knowing its managers’ and senior level employees’ actions (safety rule violations) violated § 451’s other requirement to provide “instrumentalities, equipment, and facilities” necessary to promote

176 Id. at 22; see also id. at 20 (In this proceeding CPSD does not hold PG&E to a ‘free-floating’ safety standard; rather. . . it relies on industry standards and the expert opinions of its expert engineers.) 177 Cingular, supra, 140 Cal.App.4th at 740.

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the safety, health, comfort, and convenience of its patrons, employees, and the public.

Similar to BART, Cingular argued in that case that by being charged with violation of § 451, it was denied due process because it was punished for actions it could not have known were unjust and unreasonable under § 451. Cingular argued that citation to § 451 and other similar statutes, inter alia, are so broad that Cingular could not anticipate that its actions were unjust, unreasonable and constituting violations. Specifically, Cingular argued that it was not on notice that its early termination practice or policy was unjust or unreasonable, or its network service performance required disclosure to its customers and potential customers, or that its failure to make such disclosures could result in the imposition of significant fines by the Commission.

The Cingular court examined Cingular’s alleged conduct and rhetorically asked:  “how could [Cingular] have notice that this conduct would violate section 451?” Then, based on the underlying allegations in that case (alleged unjust and unreasonable practices), the court found that Cingular could reasonably discern from the Commission’s interpretations of § 451 that Cingular’s alleged conduct in that case would violate the statute and concluded:

… that given this conduct, Cingular could be charged with knowledge that its actions were unjust and unreasonable under the relevant statutes and the Commission order.”178 Even in the absence of a specific statute, rule, or order barring the imposition of an [early termination fee] without a grace period, or barring the specific nondisclosures identified by the Commission in this case, Cingular can be charged with knowing its actions violated section 451's requirement that it provide “adequate, efficient, just,

178 Cingular, supra, 140 Cal.App.4th at 739-40.

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and reasonable service” to its customers. [Emphasis added.]179

The Cingular court reasoned that “The Commission's interpretation of the reach of sections 451, 702, and 2896, as well as of its own earlier order, must be given presumptive value.”180 Then the Cingular court weighed the evidence and alleged conduct of the utility and ultimately dismissed any argument about legal elements and “appreciable difference between the application of §§ 451, 702, and 2896” in that case, and the application of Civ. Code §§ 1709 and 1710.181 In doing so, the court explained that generally the violation of those statutes refer to the same category of “a garden variety fraud” case182 for a trier of fact, based on the facts of the particular case, to decide. A defendant can be found to have committed fraud based on misrepresentations or omissions that are not specified in any statute, and can be ordered to pay significant sums in compensatory and punitive damages as a result. The Cingular court also noted that it is not necessary for there to be another statute or rule or order of the Commission that has been violated for the Commission to determine there has been a punishable violation of § 451. The Cingular court stressed that “[w]hile in most of the cases which the parties have cited on appeal, there was another violation of law, we do not infer from this that there must be another statute or rule or order of the Commission that has been violated for the

179 Ibid.180 Cingular, supra, at 750 (citing Yamaha Corp. of America v. State Bd. of Equalization, supra, 19 Cal.4th at 11.)181 Id. at 751.182 Ibid.

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Commission to determine that there has been a punishable violation of section 451.”183

Similarly, in Carey v. Pacific Gas and Electric Company (1999) 85 Cal.P.U.C.2d 682, the Commission fined the public utility for violating § 451 (without finding a violation of any other specific statute) by failing to “furnish and maintain such adequate, efficient, just and reasonable service, instrumentalities, equipment and facilities” when the utility permitted fumigators to turn off gas service to buildings before tenting them.184

The United States Supreme Court has held, “[o]bjections to vagueness under the Due Process Clause rest on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk.”185

Here, the violations are admitted by BART’s and are violations of BART’s own safety rules and established safety standards, mandated and/or approved expressly or tacitly during SED’s ongoing oversight and monitoring of BART, pursuant to Commission’s and SED’s state and federal safety oversight (e.g. SSPP.) So BART was adequately on notice that such breach of standards, its own safety rules, would be violative of its duties for good safety practices. We therefore reject BART’s argument that violation of § 451 cannot be a stand-alone violation here. In turn, we conclude that BART can be charged with violating § 451 for not providing “instrumentalities, equipment, and facilities” necessary to promote the safety, health, comfort, and convenience of its patrons, employees, and the public.183 Cingular, supra, at 743.184 Id. at 683.185 Maynard v. Cartwright (1988) 486 U.S. 356, 361 [100 L.Ed.2d 372, 108 S.Ct. 1853].

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Moreover, in this proceeding, by preponderance of evidence, unsafe practices, careless application of safety rules, and total disregard for safety rules and lack of enforcement of those rules were proven as violations of Commission’s rules and BART’s internal safety rules (discussed further in the next section of this Decision) and, in turn, establish violations of § 451. Such violations then are proper basis for fine.

4.5.3. Violation of BART’s Internal Rules May Serve as Basis for Fine

BART argues that the bulk of the violations to which it admits are violations of its own rules, and as such they cannot serve as basis for penalty. BART contends “it is unaware of [§ 451] ever being used as a basis for allowing SED to seek penalties for an RTA’s alleged violations of its own rules.”186 We find BART’s argument unpersuasive and interpret § 451 in a manner such that BART’s violation of its own safety rules can serve as basis for SED to seek fine.

Large stacks of BART’s written manuals, rules, training power point presentations, policies and procedures were admitted into the record of this proceeding, largely based on stipulation of the parties. They evidence the standard of care to which BART committed. They also evidence the standard of care that the Commission and its regulatory safety oversight staff, SED, accepted, approved and expected of BART and its agents, employees, managers. While BART contends they are just internal rules, and some not even rules (e.g. manuals), they are more than that. They set out agreed upon standard of care, the Commission’s safety expectations, rules and

186 BART’s Opening Brief at 7.

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standards to which BART committed in BART’s SSPP under GO 164-D, and violations of the same constitute evidence of BART’s failure to exercise the standard of care that was agreed upon. As discussed below, they are violations of BART’s safety standard of care.

It is well-settled law that the rules of an entity are evidence of the most applicable standard of care when it comes to that entity’s operations and practices. This well-settled law has origins in various contexts usually involving safety concerns such as railroads, law enforcement, and even hospitals. In Powell v. Pacific Electric Rwy. Co. (1950) 35 Cal.2d 40, 46, the Supreme Court held that a railway’s operating rules, and evidence of their violation, are admissible on the issue of whether the defendant acted negligently. Almost 70 years ago in that case, the Supreme Court stated:

The rule was properly admitted in evidence as bearing on the standard of care respondent thought appropriate to insure the safety of others at its track crossings. . . . While a violation of such rule would not constitute negligence per se, it would be a circumstance for the jury to consider on the issue of respondent’s negligence.187

In fact, evidence that an employee violated an entity’s written rules that are directed toward safety constitute strong evidence of negligence. In Dillenbeck v. Los Angeles (1968) 69 Cal.2d 472, the

187 Id. at 46 (citations omitted); see also Davis v. Johnson (1954) 128 Cal.App.2d 466, 472, [citing with approval Wigmore on Evidence and holding that “the regulations adopted by an employer for the conduct of a factory or a transportation system, may be some evidence of his belief as to the standard of care required, and thus of the negligent nature of an act violating those rules . . . It is well settled that such rules are admissible in evidence and their violation is a circumstance to be considered in determining negligence” (internal quotations omitted] and Barclay Kitchen, Inc. v. California Bank (1962) 208 Cal.App.2d 347, [bank officers testified that bank employees violated its own policies and procedures, thus facilitating a misappropriation of funds; held, evidence supported finding of negligence by the bank].

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trial court refused to admit evidence that a police officer violated the rules for driving safely when using lights and siren. The Supreme Court held that the internal rules should have been admitted into evidence, and the trial court’s refusal to do so was reversible error:

The safety rules of an employer are thus admissible as evidence that due care requires the course of conduct prescribed by the rule. Such rules implicitly represent an informed judgment as to the feasibility of certain precautions without undue frustration of the goals of the particular enterprise.188

In Flowers v. Torrance Memorial Hosp. Med. Ctr. (1994) 8 Cal.4th 992, an emergency room patient fell from a gurney because its side rails had not been raised to protect her. The trial court granted summary judgment finding no professional negligence, and court of appeals upheld the trial court decision. The case was appealed to the Supreme Court of California and was remanded to court of appeals to determine whether the evidence supported a finding that the hospital breached the standard of care it owed to a patient. In this context, Justice Mosk concurred, noting that evidence that the hospital violated its own written policies was highly relevant to the determination of negligence:

One piece of evidence highly relevant to the foregoing determination is the hospital’s own policy statements on the appropriate medical procedures to be followed. Although such policy statements are not necessarily the definitive word on the community standard of care, they can be more reliable reflections of that standard than, for example, the declarations of expert witnesses: the former are forward-looking prescriptions of proper medical practice, while the

188 Id. at 478.

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latter can be viewed as post hoc justifications of past behavior designed for use in litigation.189

Moreover, written policies and procedures are often instituted as a requirement of State, federal or other applicable regulations or authorities. Those written policies and procedures are thus evidence of the standard of care and – in certain circumstance – of its breach as well. While this is not a tort case and tort law does not control, we find this well-established court’s approach on evidence of safety standard violations instructive and helpful in our review of substantially the same question. In other words, do the safety standard violations found in this instant proceeding evidence unsafe conduct violative of § 451 (or failure to provide “instrumentalities, equipment, and facilities” necessary to promote the safety, health, comfort, and convenience of its patrons, employees, and the public)? We believe it does. In the words of Justice Mosk, while these internal safety rules are “not necessarily the definitive word on the community standard of care, [however,] they can be more reliable reflections of that standard than, for example, the declarations of expert witnesses: the former are forward-looking prescriptions of proper medical practice, while the latter can be viewed as post hoc justifications of past behavior designed for use in litigation.”190 Conversely, we believe that conduct falling below that standard evidences conduct violative of § 451 – as evidencing failure to provide “instrumentalities, equipment, and facilities” necessary to promote

189 Id. at 1003, (Mosk, J., concurring); see also Gaenslen v. Board of Directors of St. Mary’s Hosp. & Med. Ctr. (1985) 185 Cal.App.3d 563, 569, [medical staff internal by-laws articulate standard of care required of physicians].190 Ibid.

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the safety, health, comfort, and convenience of its patrons, employees, and the public.

Based on the foregoing, we conclude that BART’s violation of its own rules are breaches of applicable standards of care and violation of § 451 (failure to provide “instrumentalities, equipment, and facilities” necessary to promote the safety, health, comfort, and convenience of its patrons, employees, and the public. We conclude therefore that BART’s violation of its own rules can and will serve as basis for fine here.

5. ConclusionThe Table of Violations and Offenses set forth in Section 4.2 of

this Decision summarizes the seven categories of violations proven by preponderance of evidence in this proceeding, as discussed further in Sections 4.2.2 through 4.2.8, and the respective total assessed fine of $1,348,000. The Decision stays one half of that fine, and instead, places BART on three-year probation, with several conditions. The evidence in this case as well as the assessed fine (in combination with the stayed fine and probation), were then balanced against the five factors under D.98-12-075, and based thereon, we find that the combination of remedies we devise here are reasonable and therefore adopt them.

6. Rulings

6.1. SED’s Request to Admit Exhibit SED 30 is Granted.In a footnote of SED’s Opening Brief, dated March 14, 2017, SED

contends that SED: … mistakenly withdrew its Exh[ibit] SED-30 which contained BART’s Train Operator Manual. SED requests that it not be withdrawn but, in any event,

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that BART’s published safety rules in effect at the time of the accident which SED claims BART violated be officially noticed under Rules of Practice and Procedure, Rule 13.9 and Cal. Evid. Code § 450 et seq.191

SED’s inadvertent withdrawal of Exhibit SED 30 is excused. Exhibit SED 30 is received and ruled into evidence.

6.2. BART’s Motion to Strike SED’s 17-Page Closing Brief is Granted, in part

On March 29, 2017, BART filed a motion to strike SED’s 17-page reply brief, which SED titled “Closing Brief.” BART contends SED’s Closing Brief violates the ALJ’s order limiting the parties’ concurrent reply briefs to no more than 10 pages in length. The ALJ expressly limited the length of both opening and reply briefs at the conclusion of the evidentiary hearing, as follows:

ALJ KIM: once this hearing adjourns, I’m going to expect concurrent briefing which we agreed would be due March 14; concurrent reply briefs due the 28th. Opening briefs, 20 pages maximum. Closing -- not closing -- reply briefs, 10 pages maximum. [Emphasis added.]192

BART notes that it made efforts to and complied with the 10-page Reply Brief requirement, but SED’s 17-page “Closing Brief” fails to comply with that requirement. In fact, SED, in its response to BART’s motion to strike, openly admits to its knowing violation of the ALJ’s clear directive and makes excuses but, no apologies for its misconduct as follows:

[BART’s] contention that [SED] extended beyond the 10-page maximum as ordered by the Assigned

191 SED’s Opening Brief at 4, fn. 3.192 Hearing Tr. at 610:211-27.

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Administrative Law Judge is correct. … Of course, a request for grant of permission would have been preferred but time was of the essence and press of business for attorneys at the Commission is great because of severe time constraints.193

Throughout this proceeding, SED has continually exhibited a pattern and practice of violation of the Commission procedures, discovery duties, procedural orders and directions. The below are some of the representative examples of SED’s misconduct in this proceeding:

SED has missed a remarkable number of filing deadlines, as reflected in the docket of this proceeding, and at times, SED failed to file documents which it should have.

SED committed constant errors which required the assigned ALJ to expend extraordinary amount of time reviewing issues and issuing rulings to grant extensions or corrections. The above ruling granting SED’s request to cure its accidental withdrawal of its Exhibit SED 30 is one small example.

SED disregarded its discovery duties and committed continuous and egregious discovery delays resulting in a two-day law and motion hearing at the eve of evidentiary hearing and an issue sanction to safeguard BART’s due process rights at the eleventh hour.194

Without good cause, SED failed to timely oppose BART’s Two in Limine motions.195

SED filed its Opening Brief on February 9, 2017, nine days after the January 31, 2017 deadline, for which the assigned ALJ had to issue a ruling excusing the tardiness and granting SED the permission to late-file.196

193 SED’s Response to BART’s Motion to Strike, filed April 13, 2017, at 1. 194 Administrative Law Judge's Ruling Addressing All Pending Motions, Including the Two In Limine Motions, dated February 9, 2017.195 Id. at 4.196 See Feb. 10, 2017 E-mail Ruling Granting Permissions to Late-File Safety and Enforcement Division’s Opening Brief and Documented Titled “Proposed Witness

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SED failed to timely file its Proposed Witness List, Exhibit List, and Videotape Evidence, for which the assigned ALJ had to issue a ruling excusing the tardiness and granting SED the permission to late-file while observing that the lists were “substantially untimely and [ ] defective in content.”197

With the above extraordinary series of continuing misconduct, the assigned ALJ’s February 9, 2017 Ruling yet again granted another permission to SED to late-file tardy documents and observed that to “minimize even further chaos in the proceeding and [ ] waste of limited time and resource,” the permission is granted. However, the ALJ made clear that SED must cease its abusive tactics:

This email ruling should serve as a final reminder to SED counsel that such continued dilatory conduct (exemplified above and in [ ] yesterday’s ruling) will not be tolerated in this proceeding. (Feb. 10 Ruling [emphasis in original].)198

For SED’s blatant and admitted violation of the reply brief page limit requirement, BART requests that the Commission strike SED’s non-conforming “Closing Brief” in its entirety. BART notes that it has serious concerns regarding SED’s prejudicial strategy of using its “Closing Brief” to assert new arguments and cite authority never before referenced in this proceeding.

We agree with BART’s concerns. SED’s conduct here is a direct defiance and violation of the directive of the assigned ALJ. The advantage of seven extra pages, in addition to 10 permitted, in the parties’ last brief in a proceeding is completely unfair to the other

List, Exhibits List, and Videotape Evidence” RE: 1.16-06-010.197 Ibid. 198 ALJ’s Ruling Addressing All Pending Motions, Including the Two In Limine Motions, dated February 9, 2017 at 16.

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party. Therefore, BART’s motion to strike is granted, in part. SED’s “Closing Brief,” pages 11 to 17 are so stricken. Although this proceeding is closing, SED management should carefully review its conduct in this proceeding to ensure this type of misconduct does not recur in other proceedings. The Commission will not take such behavior lightly from the parties to its proceedings, including SED.

6.3. This Decision Confirms All Prior Rulings.In this proceeding, the assigned ALJ, Assigned Commissioner

and Chief ALJ have issued and filed rulings in response to the various motions filed by the parties. Additional motions have been ruled upon electronically and e-filed and orally as reflected in the hearing transcripts. This Decision confirms all rulings issued in this proceeding. Those motions and requests not expressly ruled on are deemed denied.

7. AppealsOn November 6, 2017, SED and BART each filed an appeal to the

POD, which had been mailed on October 6, 2017.

7.1. SED’s AppealIn its appeal, SED contends that it generally supports the POD’s

findings of violations by BART. However, SED spends the bulk of its appeal restating its prior arguments which had been previously disposed of in prior rulings, including: (1) arguments and objections relating to BART’s prior motion for sanction and resulting ALJ ruling; (2) arguments and objections to BART’s motion to seal Exhibit SED-50 and the resulting ALJ ruling; and (3) objections to the manner in which SED’s dilatory conduct in the proceeding has been characterized in the rulings and POD. SED also (1) recommends

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maximum fine for each of the violations with recommendation against probation and (2) recommends other minor corrections or clarifications.

First, SED’s appeal rehashes the same arguments and objections to BART’s prior motions seeking dismissal of OII and sanction against SED, ALJ’s ruling on BART’s motions, SED’s prior motion for reconsideration of said ruling, and SED’s closing brief, a substantial portion of which was struck for non-compliance with the ALJ’s directive (see Section 6.2). In so doing, SED attempts to backdoor in evidence by way of attachments to its Appeal. These are documents expressly excluded by the underlying ruling, and these arguments by SED were carefully reviewed and ruled on by the ALJ on February 9, 2017. That is why such documents were excluded and remain excluded. Then, based on SED’s reconsideration motion, the same arguments and objections were reconsidered, and thereafter affirmed by the ALJ and assigned Commissioner Liane Randolph by a joint ruling dated February 17, 2017. Both the February 9, 2017 ALJ Ruling and February 17, 2017 Joint Ruling were once again confirmed by the POD (see Section 6.3 above). We confirm all prior rulings and decline to spend even more resources to re-entertain SED on those same previously rejected arguments and objections. Said evidence shall therefore remain excluded.

Second, by ruling dated May 23, 2017, the assigned ALJ considered and ruled on BART’s motion to seal Exhibit SED-50 and SED’s opposition arguments and filings. In the May 23, 2017 Ruling, the assigned ALJ determined that “the privacy and dignity of the victims, their family members and the Trainee take priority here. Those interests therefore override the public access and transparency

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concerns here to justify sealing Exhibit SED-50.” That ruling ordered Exhibit SED-50 be received under seal and given confidential treatment. The ruling was confirmed by the POD (see Section 6.3 above). Upon review, we find that SED’s appeal offers no new and persuasive arguments. We therefore re-confirm the ALJ’s ruling to seal Exhibit SED-50.

Third, the record of this proceeding speaks for itself, and we find no need to re-review SED’s continuing objections to the manner in which SED’s dilatory conduct in the proceeding has been characterized in the rulings and the POD.

Fourth, as discussed in this Decision, we carefully reconsidered the combination of fine imposed by the POD in reviewing SED’s appeal. While we are disappointed with SED’s unreasoned arguments to impose higher fines against BART, we nonetheless were able to revisit the record in this proceeding to reconsider the issue of fine. Upon reconsideration, we believe the facts and evidence as well as the important public interest considerations particular to this case are compelling enough and justify maximum daily fine for majority of violations, as reasoned in this Decision.

As for SED’s recommendations in its appeal which argued against the probation, probationary terms and stay of any portion of the fine, we are not persuaded and therefore reject those recommendations.

7.2. BART’s AppealBART’s appeal raises the following issues, discussed below.

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7.2.1. BART’s Late Filing of Investigation ReportFirst, BART contends the POD errs in fining BART for the late

filing of its final investigative report. Based on the evidence, we remain unpersuaded by this argument. GO 164-D, Section 8.3 states the governing rule and requires a Rail Transit Agency (RTA), like BART, to submit its final investigation report within 60 calendar days of a reportable accident; however, if the investigation takes longer than 60 days to complete, then the RTA must submit interim status reports every 30 days until the final investigation report is submitted.

The Chief Safety Officer for BART testified at the hearing that

BART’s investigation “report internally was – the final draft was

ready about the end of 2015.”199 No evidence was presented by

BART suggesting there was any further investigation necessary

beyond that point. In other words, the record is clear that there was

no justification for why BART had to take additional time “to

complete” its investigation report. In turn, there was admittedly no

justification as to why BART’s investigation report would have been

delayed beyond “end of 2015.” Without that justification, BART was

not permitted to submit interim status reports, in lieu of the actual

investigation report.

As for BART’s interim status reports which it claimed to have filed every 30 days, that is a red herring argument. Those interim reports were superficial and perfunctory, and more importantly and as noted above, there was no justification shown that the investigation needed to extend beyond 2015, by BART’s own admission. Thus,

199 Hrg Transcript 481:4-8.

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BART was not justified in submitting the interim reports, in lieu of the actual investigation report. Thus, the POD did not err and the substantial delay after the end of 2015 was completely unjustified and should be subject to fine.

BART also misinterprets the POD which fined BART daily for 262 days for the severely untimely investigation report. The actual underlying finding was that BART’s investigation report was almost 3 years late but was excused for more than 2-year period – for the time when SED also had not filed SED’s report. That is not the same as interpreting the POD to mean that the only days subject to late-filing violation begin after SED filed its report.

7.2.2. BART’s Constitutional Arguments Second, BART contends that several of the POD’s findings of fact

and conclusions of law violate BART’s constitutional rights and the Commission’s Rules of Practice and Procedure, are not supported by substantial evidence, and/or would be an abuse of the Commission’s discretion. BART identified what it characterizes as errors in the POD, as follows:

BART’s Constitutional Argument 1:Consideration of employees’ and passengers’

actions as evidence of aggravating factors is improper

BART contends that our consideration of the undisputed evidence in this proceeding which show the circumstances surrounding the Accident as “aggravating factors” for purposes of penalty analysis violates its right to due process. Mainly, BART argues that it had no notice or opportunity to take discovery concerning this “aggravating factor” or to present a defense regarding those circumstances. BART also argues that the scoping

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memo should have been more specific in identifying “aggravating factor” as an issue in this proceeding. We are not persuaded by this argument.

This instant OII was a case looking specifically into the Accident and its surrounding circumstances. In fact, the scoping memo ruling specifies that:

The central focus of the OII/OSC is on the fatal accident that occurred on BART track on October 19, 2013, when a BART train collided with two of its wayside workers (the Accident). Other relevant surrounding circumstances will also be examined in this proceeding. [Emphasis added.]200

The scoping memo ruling also makes it clear that the proceeding will be looking into:

A. Whether BART:…

(3) Should be assessed fines and/or sanctions for violations of any applicable safety rules and regulations.

…

D. What are BART’s safety culture and accident prevention procedures?

E. Whether BART’s safety culture and accident prevention procedures contributed in any way to the Accident. If so, how?201

In addition, it has been a long-standing Commission practice to apply D.98-12-075 five-factor analysis to cases involving fine or 200 Scoping Memo Ruling dated December 8, 2015, at 2.201 Id. at 4.

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penalty to ensure that the fine or penalty it imposes is reasonable. As fully elaborated in the POD’s five-factor analysis (see Section 4.4 of this Decision Different), this analysis includes, inter alia, the totality of the surrounding circumstances including aggravating circumstances or other factors which would justify increased fine or penalty and it also included mitigating circumstances or factors which would justify reduced fine or penalty. Approximately 830 days of tardiness (from December 20, 2013 (60th day after the Accident, when the report was initially due) to March 30, 2016) was excused based on mitigation considerations. That totals $4,000 times approximately 830 days -- equaling $3,320,000 – in reduction in total assessed fine. (See Section 4.2.7.)

Interestingly, BART, in its appeal, does not object to our consideration of the mitigating factors which resulted in substantial lowering of the total fine assessed here. For instance, we considered and excused BART for its failure to timely submit its accident report time when SED had failed to submit its investigation report in consideration of BART’s finances, public agency status.

We are therefore unpersuaded by BART’s selective objection to the Commission’s consideration of aggravating factors in this case, when it had no objections for our consideration of several mitigating circumstances and factors. Once we found that a fine should be assessed, our review of the surrounding circumstances, including evidence of safety or absence of safety culture, to discern aggravating and mitigating factors was necessary and proper. These are appropriate surrounding circumstances for our consideration, and BART knew or should have known that the surrounding circumstances

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were at issue in a case where penalty, fine, safety violations and culture were at issue. Thus, we find no lack of notice here.

BART’s Constitutional Argument 2:Consideration of employees’ and passengers’

actions as evidence relating to safety culture is improper

BART also contends that a finding that its trainees and passengers/observers violated BART’s PED policy and GO 172 is not supported by substantial evidence. As discussed in Section 4.2.8 of this Decision, this violation withstands the preponderance of evidence standard, and it evidences the collective actions of those trainees and observers, which uniformly demonstrated BART’s poor safety culture.

BART quibbled with the POD that its employees who were passengers on the Accident train did not technically violate BART’s PED policy and GO 172 by failing to stop the Trainer from using his PED and by not reporting the Trainer’s PED violation after the Accident. Presumably, the Trainee and the second trainee on board also violated the same requirements, as that was what they were on that train to do -- to practice their knowledge on safe train operation including safety rules compliance. BART skirts that point arguing that since the passengers/observers were merely observing the safe train operation training they may not have been trained about safe train operation and therefore might not have known when they observed unsafe train operation. Is BART suggesting that those observers had no sense to object to unsafe train operation in their presence? Moreover, BART presented evidence at the hearing that its PED policy was distributed to its employees.202 There was no evidence provides

202 Exh. BART 10 and Exh. SED 34; see also Exh. SED 20 (An updated PED Bulletin 13-10 re Zero Tolerance was issued to BART employees on 1/2/2013, ten months prior to the Accident.)

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to show exception to this policy, that included the trainees and observers, and it was expected that they review it and adhere to it.

Based on our review of the video and audio evidence in this case as well as the length of the Trainer’s calls and frequency of the texts, reflected on the phone bill of the date in question, it is reasonable to infer that everyone on board that small train passenger cab including the passengers, who were there specifically to observe the Trainer that day, saw or must have seen the inattentive Trainer who was not training safe train operation to the trainees. We note, BART is correct in pointing out that we do not know, with complete certainty, that the trainees and the passengers actually observed the Trainer’s unsafe behaviors. That said, this is not a criminal case with “beyond a reasonable doubt” standard of proof. Here, the preponderance of evidence standard applies, and we have sufficient evidence to meet the preponderance of evidence standard. In addition, it is inconsequential whether the trainees’ and the observers’ acts are technically deemed violations as the POD considered these facts, not as separate violations to be separately fined, but only as aggravating factors showing poor safety culture amongst BART employees.

In any event, as for sufficiency of evidence, the audio and video evidence clearly show the talks and carrying on of an ongoing conversation about the baseball scores and open carrying of the cell phone by the Trainer traversing back and forth between relatively small operator and passenger cabs. Moreover, the phone records show durations of the communications and frequency such that the clear inference there is that the “passengers” who were there to observe and learn from the Trainer were observing and learning the unsafe, inattentive and reckless Trainer behavior and Trainer

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exhibiting unsafe behavior to the Trainee. No one spoke up about any of that observation, at any point during that day or during the investigation. That is a clear reflection of poor safety culture.

As an aside, BART also argues that some of the passengers were not senior managers. While the testimony before NTSB and BART’s police report identified them holding various titles with “senior” reference and that too is a red herring argument by BART.203 If they were all senior BART employees, the poor safety culture evidence reflects poor safety issues at that level and that level only. If in fact, the passengers were representatives of varying levels of BART hierarchy beyond just the senior level, BART’s safety culture problem may be more pervasive than just at the highest managerial level. The totality of BART’s safety culture therefore will have to be reviewed which is why probation is proper here.

BART’s Constitutional Argument 3:Finding of poor safety culture is arbitrary and capricious

203 See Exhibits SED 22 (Transcript of NTSB Investigation Interviews) and SED 22 (BART Report). Trainer, Trainee, second trainee, the BART worker struck and killed in the Accident, and all passengers/observers on the Accident train were either senior employees or managers, as confirmed by their statements and testimony describing their positions and titles. The Trainer’s statement and testimony confirmed that he held the title Assistant Chief Transportation Officer. (Exh. SED 2 at 50 of 112; see also SED 22.) Trainee (Richard Burr) is described as the Manager in Planning and Training. (Exh. SED 2 at 51 of 112.) Second trainee (Cary Pereira) is described as the Principle Engineer for Train Control Division. (Exh. SED 2 at 91 and 96 of 112; see also Exh. SED 22 at 19:11-12.) First passenger/observer (Byron May) is described as Senior Production Engineer. (Exh. SED 2 at 50 of 112). Second passenger/observer (Colby Benny) is described as Manager of Operations Liaisons observing the training. (Exh. SED 2 at 91 of 112; see also Exh, SED 22 at 19:11-12.) Third passenger (Jim McManus) is described as Senior Vehicle Systems Engineers observing the training. (Exh. SED 2 at 91 of 112; see also Exh. SED 22.) BART OCC employee (Fred Edwards) is described as a manager of OCC who was also responsible for conducting safety trainings. (Exh. SED 22 at 6:18-19 and 7:1-7.) Christopher Sheppard, the BART employee who was struck and killed in the Accident, was identified as a manager. (Exh. SED 2 at 104 of 112.)

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BART also argues that the rules violations by its employees involved in the Accident do not evidence BART’s poor safety culture with over 3000 employees. As such, BART argues that the POD’s finding of BART’s poor safety culture is arbitrary and capricious, contrary to the evidence, and an abuse of discretion. As discussed below, and in this Decision Different, we do not agree with BART’s argument.

In fact, as noted by BART’s own appeal, it was not just the higher management actions and inactions represented by and contributed to this Accident. But some involved were senior level employees who may not hold veteran status with BART. Their actions and inactions were also the same as the veterans and failed to meet the mandatory GO 172 and BART’s Zero Tolerance policy. This evidences high level safety non-compliance and/or disregard and maybe even senior- and mid-level safety non-compliance and/or disregard, which supports the conclusion herein of troubling BART safety culture demonstrated by this tragic Accident and in this proceeding.

Furthermore, BART argues that there was no evidence of training of these veteran and senior BART employees regarding GO 172 and PED Zero Tolerance Policy. Whether they were trained but they disregarded the training or not trained and therefore acted without knowledge of the mandate (under GO 172 and BART’s PED Zero Tolerance policy distributed to all BART employees), the ultimate conclusion does not change. The facts evidence employees that show disregard for GO 172, BART’s safety bulletin, BART’s PED Zero Tolerance policy, and BART’s rule of safe conduct. Evidence shows

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multiple levels of employee and management conduct that suggests safety is not a priority at BART.

BART also contends that the triennial reviews of BART have been ignored in this proceeding and that in “those reviews it performed better than its peer RTAs. BART likewise had fewer reportable safety incidents than its peers.” As for relative incident statistics with other peer RTAs, it may be that, statistically and historically, BART received better triennial reviews. The fact remains, this Accident and the surrounding circumstances show evidence of poor safety culture not unearthed in prior reviews, and public safety demands us to take notice and action today. There is no evidentiary incongruence in our finding that there is sufficient evidence of poor safety culture here, based on the evidence relating to this Accident and its surrounding circumstances.

BART’s Constitutional Argument 4:Finding of failure to submit corrective action plan

is not supported by evidence

BART contends the POD mistakenly finds that BART failed to submit a corrective action plan with its final investigation report and, further, that BART failed to take appropriate abatement actions while its final investigation report was pending. BART misunderstands the POD. BART’s substantially tardy (submitted after its tardy investigation report in January of 2017) and perfunctory and also tardy corrective action plan missed the mark on GO 172 and BART’s PED Zero Tolerance Policy issues and the glaring poor safety culture issue.

It is true that BART presented evidence that it took some measures, including (1) suspending and then revoking Simple

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Approval wayside access, (2) updating its wayside access rules, (3) having its wayside access program peer reviewed, and (4) retraining its wayside personnel on the new access program. However, the point is the required comprehensive forward-looking corrective action plan was never submitted. The corrective measures taken are not faulty, but they were not enough, as BART clearly missed that this Accident was not just about poor rules. BART’s superficial approach to corrective action taken here missed the central lesson from this Accident, that many of BART’s safety rules were woefully disregarded and violated by its employees up and down its chain of hierarchy.

Moreover, the substantially tardy corrective action plan was incomplete. Further, the said corrective action plan did not meet either the letter or spirit of GO 164-D, Section 2.3, which required the RTA to develop a corrective action plan which is a forward-looking plan “that describes the actions the RTA will take to minimize, mitigate, control, correct, or eliminate hazards, and the schedule for implementing those actions.” Specifically, it was to include all of the following:

9 Requirements for Corrective Action Plans9.1Rail Transit Agencies shall develop corrective

action plans for the following:a. Results from investigations, in which

identified causal and contributing factors are determined by RTA or Staff as requiring corrective actions.

b. Recommendations contained in the Staff triennial safety and security review reports as adopted by the Commission.

9.2Each RTA shall submit an investigation corrective action plan to Staff within 60 calendar days of the occurrence of the accident

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as part of the investigation report or in a separate document. If the corrective action plan implementation takes longer than 60 calendar days to complete, the RTA shall submit interim status reports every 30 calendar days. The corrective action plan shall identify the action to be taken with an accompanying implementation schedule, and the individual or department responsible for the implementation.

9.3Each RTA shall submit a corrective action plan based on the recommendations contained in the Staff triennial safety and security review reports as adopted by the Commission. The corrective action plan shall identify the action to be taken with an accompanying implementation schedule, and the individual or department responsible for the implementation. Each RTA shall submit to Staff corrective action plan interim status reports according to the Commission Resolution.

9.4Each RTA shall submit each corrective action plan to Staff with a request for review and approval. If the corrective action plan is acceptable to Staff, Staff shall issue a formal letter to the RTA approving the corrective action plan as consistent with Sections 9.1 and 9.2, best industry practices, and in furtherance of the public's interest in system safety and security. If it is unacceptable to Staff, Staff shall identify the areas in the plan that, in its determination, require correction, and communicate that information to the RTA. If the RTA does not agree with the rejection, RTA shall meet and confer with Staff in an effort to resolve this disagreement. If no resolution is achieved through negotiation, the RTA shall apply to the Commission for approval pursuant to the application procedure under the Commission's Rules of Practice and Procedure.

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9.5 If the National Transportation Safety Board (NTSB) investigates an accident involving an RTA, Staff and the RTA shall meet to address NTSB's findings and determine the appropriate corrective actions to be taken based on those findings and all other information available on the incident.

9.6Each RTA shall submit to Staff verification that the corrective action(s) has been implemented as described in the corrective action plan, or that a proposed alternate action(s) has been implemented with the agreement of Staff.

The record is clear. BART missed some of its key failings as discussed above and failed to timely submit the required forward-looking and comprehensive corrective action plan (including recommended actions, proposed implementation schedule and progress) and certainly failed to submit it within the 60 days of the Accident, as required under Section 9.2, for SED’s review.

Under Section 9.4 of GO 164-D, the purpose of such a plan was for the Commission’s staff to be able to review, approve and guide the RTA’s corrective action plan “consistent with Sections 9.1 and 9.2, best industry practices, and in furtherance of the public's interest in system safety and security.” And, if the Commission’s staff finds that the proposed plan “is unacceptable to Staff, Staff shall identify the areas in the plan that, in its determination, require correction, and communicate that information to the RTA. If the RTA does not agree with the rejection, RTA shall meet and confer with Staff in an effort to resolve this disagreement. If no resolution is achieved through negotiation, the RTA shall apply to the Commission for approval

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pursuant to the application procedure under the Commission's Rules of Practice and Procedure.”204

This was not done here, because a substantially tardy after-the-fact corrective action plan was submitted long-after the Commission issued the underlying OII, based on the Staff’s Final Investigation Report which had been finalized without the benefit of BART’s investigation report and corrective action plan – both having been submitted substantially late. This does not come close to compliance with GO 164-D Section 9 requirements. BART may have taken some corrective measures, but it also failed to identify and address other significant safety culture issues nor take adequate actions to hold Trainer, Trainees and passengers/observers accountable for their respective failings. By the time the substantially tardy corrective action plan was submitted, the Trainer had retired and no corrective action could be taken to hold him accountable for his role. With its inaction, BART management failed to send an effective message to its employees that violations of safety rules have real consequences. Instead, the inaction sent a message that violations of safety rules result in no consequence to the violator.

7.2.3. BART’s Application of Prior Commission Decisions Third, BART continues to rely on two inapposite cases for the

proposition that the fine should be stayed because BART is a public agency. As a point of fact, there is no legal authority that a fine cannot be imposed against a public agency. As matter of policy, the Commission is reluctant to impose fine as against public agencies, because we are generally mindful of the fiscal impact that flows to the

204 Ibid.

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public. However, to the extent a fine is justified and appropriate, such fine will and should be assessed and imposed.

Section 4.4.4 of this decision goes into depth on why the two authorities cited by BART do not apply to the instant OII. We will not reiterate our analysis again why the particulars of this case required us to elevate this matter in the manner we did. Therefore, the fine assessed against BART will only be partially stayed, as originally ordered and affirmed in this Decision Different.

7.2.4. BART’s Arguments Against Fine for Employee Violations

Fourth, BART contends that the POD exceeds the Commission’s authority by penalizing BART for its employee’s violations of BART rules and procedures, and that such penalties, distinguished from violation of a statute or regulation, are unprecedented and beyond the Commission’s authority. As explained in this Decision Different, we are not persuaded by these arguments by BART. We have considered and addressed this issue fully in this Decision Different to affirm that imposing a fine and/or probation based on violation of § 451, under the particular circumstances of this proceeding, does not violate BART’s right to due process nor the Commission’s Rules.

7.3. Clarifications and Minor CorrectionsThe Decision Different reflects some of SED’s and BART’s

proposed corrections and clarifications.

8. Explanation of Changes to the PODPursuant to Pub. Util. Code § 1701.2(e), this is the explanation of

changes made by this Decision to the POD. This Decision generally affirms the findings in the POD. We however issue this Decision, because we strongly believe the highly egregious facts, evidence as

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well as the important public interest considerations particular to this case are compelling enough and justify the amount of fine we adopt here. The POD assessed a fine of $659,000, stayed two thirds of that, and placed BART on three-year probation.

Today, based on our reconsideration of the record of this proceeding, this Decision orders BART to pay a total fine of $1,348,000 and simultaneously stay one half of the assessed fine, on condition that BART remains in compliance with the directives in this Decision. In lieu of the stayed fine, this Decision also places BART on probation for three years with several compliance requirements.

9. Assignment of ProceedingLiane M. Randolph is the assigned Commissioner, and Kimberly

H. Kim is the assigned ALJ. ALJ Kim is designated the Presiding Officer in this proceeding.

Findings of Fact1. On October 19, 2013, a BART train struck and killed two workers

who were working on the BART tracks between the Walnut Creek and Pleasant Hill Stations in the County of Contra Costa (Accident).

2. At the time of the Accident, the incident train was being operated by Trainee; and Trainee was a BART manager.

3. At the time of the Accident, Trainee was supposed by have been working under direct supervision of Trainer; and Trainer was a BART manager.

4. At the time of the Accident, the Trainer was on duty on the incident train and supposed to be supervising Trainee (and a second trainee), be a role model to three observers/passengers and in charge and control of the incident train.

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5. BART is a public utility and a common carrier subject to the Commission’s jurisdiction, inter alia, under the Pub. Util. Code and other delegated federal safety oversight authorities.

6. BART is a local government transportation agency composed of representatives from Alameda, Contra Costa, San Francisco, and San Mateo Counties and is subject to the Commission’s safety oversight.

7. On June 28, 2016, the Commission issued the OII/OSC against BART to begin a formal investigation of BART’s role concerning the Accident.

8. SED bears the burden of proof, and the applicable standard of proof is preponderance of evidence.

9. SED proved, by preponderance of evidence, the following violations:

(a)BART’s Trainer (who was also BART manager) repeatedly used his cell phone while on Train #963 and in charge of its operation in violation of BART’s safety rules and GO 172;

(b) BART’s Trainer (who was also BART manager) failed to directly and properly supervise Trainee;

(c)BART’s Trainee and Trainer (who were both BART managers) failed to sound the train horn prior to the Accident;

(d) BART’s OCC Center Operator (who was also BART manager) failed to give notice of the presence of wayside workers via the ATIS Warning Notice at the bottom of the hour as required;

(e)One of the wayside workers working on the BART track (who was also BART manager), violated Simple Approval Rule, including the Watchperson and 15 Second Rules;

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(f) One of the wayside workers working on the BART track (who was also BART manager), as well as BART’s contractor (the second wayside worker) failed to comply with BART’s safe clearances when using the conductive track gauge; and

(g) BART failed to timely submit an adequate investigative report.

10. The details of the Accident and the circumstances surrounding the Accident are largely undisputed or otherwise proven, which is that BART, through its management and several of its veteran or high level managers and senior employees, violated multiple safety rules.

11. The violations, undisputed or otherwise proven in this proceeding, are serious and egregious violations, particularly in view of the fact that they were violations committed by BART’s management, high level veteran managers and senior level employees, reflecting BART’s organizational and management culture and attitude.

12. Some or all of the violations proven by SED in this proceeding likely contributed in some manner to the Accident.

13. On the day of the Accident, five BART managers and senior level employees onboard the incident train, excluding Trainer, watched Trainer repeatedly violate BART’s PED Policy and GO 172 as well as conduct himself in a careless and inattentive manner while supposedly training Trainee and the second trainee. None of them did anything to stop that violation and behaviors or report that violation or behaviors. BART management also did nothing to redress these managers’ and senior employees’ failings.

14. BART’s SSPP, in effect at the time of the Accident, and certified by BART’s top management and approved by the Commission, provides in part:

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… Accountability for safety rests with each employee, supervisor and manager. All are responsible for meeting the safety requirements inherent to their positions. Individual employees must comply with the safety rules and procedures applicable to their work duties. Supervisors and managers must enforce safety standards applicable to their departments and are ultimately responsible for safety within their domain. [Emphasis added.]

15. BART’s management’s suspected breach of its safety commitment, in large part, is why we elevated this matter to be reviewed in this formal proceeding, as opposed to being handled through a staff level citation process.

16. On March of 2016, SED presented its final report on its investigation into the Accident to the Commission.

17. In January 11, 2017, BART presented its final report on its investigation into the Accident to the Commission.

18. SED and BART both attribute much of their respective years of delays in submission of their final reports to NTSB’s NDA, which they both claimed prohibited their release of their respective investigation reports.

19. The terms of the NDA expressly allow release of information, as opposed to NTSB’s findings, opinions, etc., for safety and other agency need, and those terms specifically authorize the IIC to permit such release of information.

20. SED and BART both argued other excuses for their delays in submission of their final reports on the Accident; but those excuses were not persuasive or substantiated by competent evidence.

21. After the discovery deadline passed and just days before the start of the hearing, it came to light that SED had neglected its

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discovery duties, failed to exercise diligence in identifying and disclosing allegations of violations and failing to produce evidence to BART to review and prepare its defense.

22. Just days before the start of the hearing, in the Assigned ALJ’s February 9, 2017 Ruling, the ALJ sanctioned SED by denying its presentation of any further previously unidentified allegations of safety violations based on, inter alia, following grounds: (a) SED, for nearly six months, failed to reasonably and diligently discover and produce e-mails between BART and SED concerning certain events leading to the Accident; (b) SED failed to employ a system of preserving such critical e-mails; (c) SED failed to timely object to the supposed oppressive and burdensome nature of producing such e-mails; and (d) SED failed to timely oppose BART’s two motions in limine seeking sanctions.

23. The February 9, 2017 Ruling precluded SED from continually adding more allegations nor to present evidence of previously unidentified allegations of violations, in other words, “evidence concerning claims not properly at issue” because those issues were:

(a) Not identified in the OII/OSC or SED’s Final Report, not within the Scoping Memo of December 8, 2016, not identified in SED’s data/discovery responses, and not identified in SED’s tardy pre-hearing brief served on February 2, 2017; and/or

(b) Issues for which BART was deprived of adequate prior notice and opportunity to conduct discovery and prepare defense.

24. The February 9, 2017 Ruling was reaffirmed throughout the course of the evidentiary hearing, and SED was reminded that it was precluded from either (a) adding new claims, if such claim had not been presented to BART before and/or (b) introducing any evidence

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on Scoping Memo Ruling issues B(1), B(1),(2), (3) and C for which SED failed in its discovery duties.

25. At the time of the Accident, BART’s Simple Approval Rule required that when roadway workers do work on or near tracks under its Simple Approval Rule, there must be a separate designated watchperson present at the work site. That watchperson’s sole duty at the work site would be to lookout for approaching trains and alert the roadway worker on or near the track in case there is an approaching train.

26. Under Pub. Util. Code § 451, BART, as a public utility and common carrier:

… shall furnish and maintain such adequate, efficient, just, and reasonable service, instrumentalities, equipment, and facilities[ ], as are necessary to promote the safety, health, comfort, and convenience of its patrons, employees, and the public. [Emphasis added.]

27. Pub. Util. Code § 778 provides: The [C]ommission shall adopt rules and regulations, which shall become effective on July 1, 1977, relating to safety appliances and procedures for rail transit services operated at grade and in vehicular traffic… [Emphasis added.]

28. The Commission has safety oversight jurisdiction over California’s rail fixed guideway and transit systems under Code § 99152 and other Code sections establishing each individual RTA within California. Code § 29047 specifically confers safety oversight jurisdiction to the Commission concerning BART.

29. The Commission has been designated by FTA as the State Safety Oversight Agency for the RTAs in California under Title 49 C.F.R.

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Parts 659, et seq., and the federal government delegates and requires the Commission to establish a safety program, and carry out the delegated safety oversight by (a) reviewing, approving, and monitoring the execution of each system’s safety plan, (b) investigating hazardous conditions and accidents on systems, and (c) requiring and monitoring corrective action to correct or eliminate those conditions.

30. In conjunction with its safety authorities under Code §§ 778 and 99152, inter alia, as well as its delegated federal safety oversight authorities, the Commission adopted GO 164-D, in part, to carry out those combined state-federal transit safety oversight responsibilities.

31. The Commission’s rules (e.g. GOs) are generally applicable and are not meant to set out every specific RTA- or RFGS-specific safety rules. Instead, the Commission’s rules are largely designed to set general rules and guidelines for RTAs to prepare their own complementary, tailored, specific and consistent safety rules and plans (to be approved by the Commission), as the specific set of RTA- or RFGS-specific safety plans for operations, practices and procedures specifically applicable to the particular RTA and RFGS in addition to, inter alia, the GOs, decisions and statutes.

32. Through GO 164-D, the Commission directs RTAs and RFGSs to comply with the safety oversight rules and regulations ordered therein. In part, the Commission explicitly directs each RTA to develop a SSPP to be submitted to the Commission for review and approval, with the expectation that the RTA’s safety rules, protocols, processes, practices and programs meet “best industry practices, and in furtherance of the public’s interest in system safety and security.”

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33. The Commission’s approval of SSPP is an extension of Commission’s direction to the RTAs to comply with the RTA’s commitments reflected in the approved SSPP, including the RTA’s own safety rules, protocols, processes, practices and programs.

34. GO 172, Section 2.11 provides:Zero-Tolerance Policy means a policy where the consequences to a person who does not comply with the PED use prohibitions of this General Order are written, automatic, specific, and non-discretionary….

35. GO 172, Section 5 requires the RTAs, including BART, to implement a “zero-tolerance policy and program.”

36. D.98-12-075 identified five factors to be considered in determining the level of fine to be imposed.

37. The total assessed fine reflects the seriousness of the violations, involving BART’s management, veteran or high level managers or senior employees and the aggravating factors as discussed in this Decision, and are therefore assessed at a higher level of fine than those envisioned under citation appeal process.

38. Most of the violations are assessed at the maximum fine level of $50,000 per day of violation because the facts and circumstances show that they are serious violations warranting maximum fine.

39. BART takes little responsibility for its inexcusable delay of nearly 20 months (from April 2015 when NTSB released its Accident Brief) to submit its final report. This lengthy delay in BART’s submission of its final report affected timely and adequate corrective actions and abatement, which did not occur here.

40. A fine of $50,000 is assessed for a single non-continuing violation of Trainer (BART manager) for not stowing and repeatedly using his cell phone leading up to the moment of the Accident in

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violation of BART’s safety rules and GO 172. This is an egregious violation which continued throughout the training day and demonstrates a serious lack of safety attitude and culture at BART’s management level and total disregard for the Commission’s GO 172 prohibition.

41. A fine of $50,000 is assessed for a single non-continuing violation of Trainer (BART manager) for his failure to directly and properly supervise Trainee. This is an egregious safety rule violation demonstrating a serious lack of safety attitude and culture at BART’s management level and total disregard for his duty to safely operate Train #963, as the Trainer in charge, and to role model and teach its safe operation to his two trainees and three observers.

42. A fine of $50,000 is assessed for a single non-continuing violation by Trainer and Trainee (both BART managers) for failure to sound the train horn prior to the Accident. This violation is a significant safety rule violation that demonstrates poor on-the-job training provided by and to BART managers in preparation for the limited operation during the Strike. It also shows a serious lack of safety attitude and culture at BART’s management level.

43. A fine of $50,000 is assessed for a single non-continuing violation of OCC Center Operator (BART manager) for failure to give ATIS notice warning of the presence of wayside workers at the bottom of the hour as required. This violation is a safety violation, and $50,000 in fine is justified. It demonstrates a serious lack of safety attitude and culture at BART’s management level and disregard for an important safety warning.

44. The final ATIS notice/warning, which should have occurred just minutes preceding the Accident, at the bottom of the hour, could have

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given Trainee and Trainer one final alert and chance to devise a cautious and careful movement of the train as it approached the wayside crew’s locations. It could have alerted Trainer to become more aware to get in the cab to be physically present in the cab and near the controls to press the horn button, if needed. It could likewise have prompted Trainer to discuss, show and prepare Trainee about the use of horn so that Trainee is reminded of where the horn button is and when and how it should be used in case there is/are trespasser(s) or work crew present on track or other emergency situations Trainee may face after the on-the-job training is completed and Trainee must operate a train without Trainer.

45. Simple Approval should not have been sought at this curved location, with severely restricted sight distance, where its requirements (which also requires compliance with Watchperson and 15 Second Rules) could not have been complied with.

46. A fine of $50,000 is assessed for a single non-continuing violation of Simple Approval Rule by a BART manager and contractor. This is a serious safety rule violation that reflects on BART’s poor safety culture at BART’s management level and total disregard for safety of California’s transit workers.

47. A fine of $50,000 is assessed for a single non-continuing violation of BART’s safe clearances rule by a BART manager and contractor. This is a serious safety rule violation that reflects BART’s poor safety culture at BART’s management level and total disregard for safety of California’s transit workers.

48. A fine of $1,048,000 (at $4,000 per day) is assessed for a continuing violation from April 1, 2016 to January 11, 2017 – a total of

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262 days for BART’s failure to timely submit an adequate investigation report and meaningful corrective action plan.

49. For the purpose of fairness and fine calculation only, BART’s violations from December 20, 2013 (60th day after the Accident) to March 30, 2016, more than two years of delay in submitting an adequate investigation report and meaningful corrective action, is tolled and otherwise excused, as SED too did not file its SED’s Final Report until March of 2016. This violation is a significant violation that is critical to our timely accident response and safety oversight, and this evidences total disregard for the Commission’s process.

50. BART’s cited authorities in support of its argument against fine were not persuasive.

51. This proceeding does not involve an appeal from a citation under Resolution ST-163.

52. Assuming arguendo that BART has safety rules that meet the industry standards, that means nothing if BART managers do not exercise diligence to ensure safety culture as a priority, by (a) training and supporting employees; (b) complying with safety rules and leading by example, and (c) enforcing those rules, when violated, by promptly intervening and taking appropriate corrective and/or disciplinary actions.

53. SED alleged but failed to present competent evidence to prove by preponderance of evidence that BART’s decision not to ban Simple Approval during the Strike violated any industry standard or rules, policies, or requirements.

54. In view of the record, inter alia, OII/OSC and the Scoping Memo Ruling, as well as the voluminous evidence and circumstances in this proceeding, including the Accident, investigations of the Accident, and

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various investigation reports of the Accident preceding the evidentiary hearing in this case, there is no mystery as to what BART was being charged to defend in the context of this OII/OSC proceeding. Allegations of unsafe practices, which BART was on notice of defending, are essentially the same as allegations that the unsafe practices if proven are § 451 violations.

55. In a footnote of SED’s Opening Brief, dated March 14, 2017, SED contends that SED “… mistakenly withdrew its Exh[ibit] SED-30.”

56. On February 15, 2017, ALJ Kim directed the parties to file concurrent opening briefs and reply briefs. Reply briefs were to be limited to no more than 10 pages.

57. Throughout this proceeding, SED has continually exhibited a pattern and practice of abuse and violation of the Commission procedures, discovery duties, procedural orders and directions in this proceeding.

58. To permit SED to file a 17-page Closing Brief would send the wrong message to SED that its continuing violations of the Commission’s and ALJ’s directives and process are and will be condoned, and it would also unfairly advantage SED of seven extra pages, in addition to 10 permitted, in its last brief in a proceeding.

59. The assigned ALJ, assigned Commissioner and Chief ALJ have issued and filed rulings in response to various motions in this proceeding; and additional motions have been ruled on electronically and e-filed in the docket card of this proceeding and orally as reflected in the hearing transcripts.

60. The POD was mailed on October 6, 2017, and both BART and SED timely filed their respective appeals to the POD.

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61. Upon reconsideration of the record of this proceeding in light of the appeals, this Decision finds the evidence here is compelling enough and justify maximum daily fine for majority of violations, as reasoned in this Decision.

Conclusions of Law1. Seven categories of safety violations were proven by

preponderance of evidence by SED with competent and sufficient evidence.

2. The violations proven in this proceeding were serious safety violations and they were aggravated by: (a) BART’s failure to take full responsibility for the violations and instead referring to them as “one-off” occurrences; (b) BART’s failure to take effective and adequate action to timely identify and address the safety violations of several BART managers, including those who stayed complacent or otherwise looked the other way when Trainer was violating GO 172 and failing to attentively and directly supervise the Trainee; and (c) the fact that the proven violations were committed by BART’s high level and veteran managers and senior employees which reflect a troubling safety culture within its management and beyond.

3. All utilities under the Commission’s jurisdiction are expected to comply with Commission directives and orders.

4. Code § 451 requires BART to maintain “instrumentalities, equipment, and facilities” necessary to promote the safety, health, comfort, and convenience of its patrons, employees, and the public.

5. BART had an independent duty under GO 164-D to timely present the investigation report, including corrective action plan.

6. Through the Commission’s SSPP review and approval in compliance with GO 164-D, the Commission also tacitly approved

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BART’s internal safety rules; and as such, the Commission approval of BART’s internal safety rules and procedures meant expectation that BART should comply with and enforce all those rules and procedures, including its Zero Tolerance policies, as approved.

7. BART was committed and required to implement and enforce the approved SSPP, along with all of its safety rules and procedures, including its Zero Tolerance policies, as approved, and to carry it all out, as approved.

8. BART’s non-compliance with its approved SSPP, including its own safety rules, protocols, processes, practices and programs, is a breach of that commitment. It is reasonable and appropriate for the Commission to take enforcement action against BART for non-compliance with its approved SSPP, including its own safety rules, protocols, processes, practices and programs.

9. The violations which were proven by preponderance of evidence in this proceeding and our related assessment of fine do not result in “arbitrary or capricious” interpretations of § 451, but are grounded in evidence and undisputed facts.

10. BART’s safety violations proven by preponderance of evidence in this proceeding constitute violations of § 451.

11. BART had adequate notice of § 451 allegations; there was no prejudice to BART; and therefore, there is no due process violation.

12. BART can be charged with violating § 451 for not providing “instrumentalities, equipment, and facilities” necessary to promote the safety, health, comfort, convenience of its patrons, employees and the public, and such violation, if proven, as was the case here, may serve as standalone basis for fine.

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13. It is well-settled law that the rules of an entity are evidence of the most applicable standard of care when it comes to that entity’s operations and practices.

14. BART’s safety rules evidence the applicable safety standard BART applied to or expected of its employees.

15. BART’s admitted violations of its internal safety rules evidence BART’s breach of its safety standard.

16. SED presented evidence that BART’s internal safety rule violations occurred, which we deem to be violations of safety duty under the applicable Code sections and GO 164-D commitments.

17. Violation of BART’s internal rules may serve as the basis for fines.

18. The Commission may impose fines for violation of laws and regulations pursuant to §§ 2107 and 2108.

19. The California Constitution, along with § 701, confers broad authority on the Commission to regulate public utilities, which includes the authority to craft equitable remedies and to direct non-monetary remedies.

20. Section 761 also confers authority on the Commission to require a utility to maintain proper facilities.

21. One of the key purposes of fines is to deter further violations by the perpetrator and others.

22. The Commission has the authority to fashion equitable remedies pursuant to the California Constitution and §§ 701, 728 and 761.

23. In devising appropriate remedies in this proceeding, we should consider the fact that BART is a public agency and that any fine imposed on BART will likely impact its budget, fees and service to the public.

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24. It is our policy to promote safety without undue burden to the public and to craft remedies in this proceeding that will effectively redress the violations while being just, reasonable and fair.

25. The fine imposed in this Decision is reasonable under D.98-12-075 five-factor analysis, §§ 2104.5, 2107 and 2108.

26. The first factor under D.98-12-075 is the severity the offense; and in view of those four considerations set forth in that decision, the severity of offense should be deemed very high, and the total assessed fine, combined with the three-year probation (including conditions during the probation) and stay of one half of the total fine, is reasonable and comports with the high severity of offenses here.

27. The second factor under D.98-12-075 focuses on the utility’s actions in preventing, detecting, disclosing and rectifying the violation; and in view of BART’s conduct here, the total assessed fine, combined with the three-year probation (including conditions during the probation) and stay of one half of the total fine, is reasonable.

28. The third factor under D.98-12-075 is the financial resources of the utility; and in view of BART’s budget deficit and public agency status, the combination of remedies devised here is reasonable, comports with the degree of wrongdoing and is relative to BART’s financial resources such that the amount will be an effective deterrence for BART while not exceeding the constitutional limits on excessive fines.

29. The fourth factor under D.98-12-075 is whether the fine is reasonable in light of the Commission’s prior decisions; and since there have not been comparable and similar decisions presented by SED and BART, the fine should be assessed based on evidence in the

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record of this proceeding which justifies the combination of remedies devised in this Decision.

30. The fifth and final factor under D.98-12-075 we consider as we evaluate the reasonableness of the fine is the totality of the circumstances, with an emphasis on protecting the public interest; and in view of the totality of circumstances, the combination of remedies devised in this Decision is justified.

31. We must protect the public interest by assessing a fine here sufficient to deter another similar tragedy, going forward.

32. In balancing all of the competing factors, the fine we impose here must be higher than the ministerial fine amounts authorized by Resolution ST-163.

33. For purpose of fine, BART’s violations from December 20, 2013 (60th day after the Accident, when the report was initially due) to March 30, 2016, more than two years of delay in submitting an adequate investigation report and meaningful corrective action, should be excused, based on equitable consideration.

34. BART should be ordered to pay a fine of $1,348,000.35. It is reasonable and in the public interest to stay one half of the

total fine assessed against BART so long as San Francisco Bay Area Rapid Transit District remains in compliance with the directives in this Decision during the probationary period.

36. In lieu of the stayed one half of the assessed fine, BART should be placed on probation for no less than three years, with conditions.

37. Total assessed fine of $1,348,000 against BART for the serious safety violations found in this proceeding (in view of the simultaneous stay of one half of the assessed fine, and probation for three years, in lieu of the stayed fine) is a reasonable fine under D.98-12-075.

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38. Placement of BART on three-year probation and requiring compliance with the conditions during the probation is reasonable and in the public interest to closely monitor BART and its managers to ensure that the types of safety violations we found in this investigation do not recur.

39. SED’s recommendations in its appeal which argued against the probation, probationary terms and stay of any portion of the fine should be rejected.

40. During the probationary period, SED should closely monitor BART’s compliance with this Decision and report and recommend to the Commission’s Executive Director of any and all safety violations to this Decision. This also includes SED seeking another OII/OSC for serious or egregious non-compliance with this Decision, and using its Resolution ST-163 authority to cite BART for less serious non-compliance, as necessary to ensure full compliance and effective monitoring of BART.

41. SED should prepare and submit a compliance filing and recommendation in this proceeding, no later than nine months prior to the expiration of BART’s probation, on whether BART’s probation should be extended beyond three years with justifications of its recommendation based on information SED has acquired during its monitoring and oversight activities.

42. BART’s probationary period should expire in three years from the issuance of this Decision, unless:

(a)the Commission extends this probationary period before its expiration based on cause shown during the probationary period; or

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(b) an OII/OSC is instituted and/or one or more citation is/are issued and pending which the probationary period shall be automatically extended until such OII/OSC and/or last of the pending citations is resolved and the applicable time for appellate review has lapsed.

43. Fines imposed pursuant to § 2107 must be paid to the State’s General Fund.

44. Within 60 days of the issuance of this Decision, BART should pay the remaining one half of the total assessed fine assessed ($674,000 ) to the State’s General Fund.

45. The combination of remedies adopted in this Decision should not limit the Commission’s ability to require additional changes to BART’s practices or governance in a future proceeding.

46. The combination of remedies adopted in this Decision, including the assessed fine, is, in part, because we recognize BART’s public agency status while making certain that we hold BART’s management, managers and senior employees accountable for these violations.

47. The combination of remedies adopted in this Decision, including the assessed fine, is reasonable, in the public interest and necessary to deter future violations while redirecting the stayed fine to BART’s actual safety improvements, accountability and culture change for BART, its workers and public.

48. The combination of remedies adopted in this Decision, including the assessed fine, is neither arbitrary nor excessive.

49. The combination of remedies set forth in this Decision yields several public interest benefits.

50. Historically and as matter of policy, the Commission has generally been reluctant to impose fine as against public agencies;

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however, we should not allow BART to hide behind our historic policy to escape fine under these egregious circumstances.

51. The combination of remedies set forth in this Decision should be adopted.

52. NDA provides, for interest of public safety and other agency needs, release of information may be authorized.

53. Inadvertent withdrawal of Exhibit SED 30 by SED should be excused, and Exhibit SED 30 should be received into evidence.

54. BART’s motion to strike SED’s 17-page Closing Brief should be granted, in part, and SED’s “Closing Brief,” pages 11 to 17 should be stricken.

55. This Decision should confirm all rulings issued in this proceeding.

56. Those requests and motions, not expressly ruled on, should be deemed denied.

57. This order should be effective immediately.58. This proceeding should be closed.

O R D E R

IT IS ORDERED that:1. Total fine of $1,348,000 is assessed against San Francisco Bay

Area Rapid Transit District (BART). Breakdown of the total assessed fine is as follows:

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Violations Assessed FineBART Manager and Trainer Repeatedly Used His Cell Phone in Violation of BART’s Safety Rules and GO 172

$50,000

BART Manager and Trainer Failed to Directly and Properly Supervise Trainee

$50,000

BART Managers (Both Trainee and Trainer) Failed to Sound the Train Horn Prior to the Accident

$50,000

BART Manager and OCC Center Operator Failed to Give Notice of the Presence of Wayside Workers Via the ATIS Warning Notice at the Bottom of the Hour as Required

$50,000

BART Manager (Wayside Worker) Violated Simple Approval Rule

$50,000

BART Manager (Wayside Worker) and Contractor (Wayside Worker) Failed to Comply with BART’s Safe Clearances When Using the Track Gauge Between the Rails of the BART Trackway

$50,000

BART Failed to Submit a Timely and Adequate Investigative Report

$1,048,000(262 days of

continuing violation at $4,000 per day

(per violation))TOTAL ASSESSED FINE $1,348,000

2. One half of the total assessed fine which is $674,000 (one half of $1,348,000) shall be stayed so long as San Francisco Bay Area Rapid Transit District remains in compliance with the directives in this Decision during the probationary period.

3. San Francisco Bay Area Rapid Transit District (BART) shall pay the remaining one half of the total assessed fine which is $674,000 (one half of $1,348,000) to the State of California General Fund in three installments, as follows:

(a)The first installment payment of $224,666.67 shall be due in 60 days from the effective date of this order;

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(b) The second installment payment of $224,666.67 shall be due in one year from the effective date of this order;

(c)The third installment payment of $224,666.66 shall be due in two years from the effective date of this order;

(d) All payments shall be made by check or money order payable to the California Public Utilities Commission and mailed or delivered to the Commission’s Fiscal Office at 505 Van Ness Avenue, Room 3000, San Francisco, CA  94102; and

(e)BART shall write on the face of the check or money order “For deposit to the State of California General Fund per Decision 18-10-020” with “Decision 18-10-020” being the Commission-designated number for today’s decision.

4. Upon receipt of the fine ordered in this decision pursuant to Ordering Paragraphs 1 and 3 above, the Commission’s Fiscal Office shall deposit or transfer said fine to the State of California General Fund as soon as practicable.

5. In lieu of the stayed fine pursuant to Ordering Paragraph 2 above, San Francisco Bay Area Rapid Transit District (BART) shall be placed on probation for three years, during which, BART shall comply with the following:

(a)Within 30 days, BART shall post at least one sign, no smaller than 14” by 18” in dimensions, at each of its station which states (i) the California Public Utilities Commission (Commission) has found that BART has violated safety rules; (ii) the Commission has assessed a fine of $1,348,000 for the safety violations; and (iii) the Commission has stayed one half of the fine on condition that BART complies with the decision and improves its safety rules as ordered;

(b) Within 30 days, BART shall begin tracking and submit to the Commission’s Director of Safety and

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Enforcement Division by January 30 of each year, its annual report of all violations of safety rules, practices, policies or procedures and details of corrective actions taken including disciplinary actions (local, state, federal, internal and external safety rules), including violations similar to those found in this proceeding;

(c)Within six months, BART shall reevaluate its current safety training programs and culture and devise and begin implementing a plan to improve the effectiveness of its current safety training programs and methods of improving its safety culture throughout the organization;

(d) Within six months, BART shall develop and begin implementing annual safety rules, practices, policies, procedures and culture refresher courses for all of its managers and senior employees who are entrusted to comply with and/or enforce worker safety rules, practices, policies, procedures and/or culture, of no less than 40 hours, and annually submit certifications for each manager and senior employee who completed the refresher; and

(e)By or before May 1 of each year during the probation ordered in this decision, BART’s management representative shall appear before the Commission to brief the Commission and to avail him or herself to questions by the Commissioners at one of the Commission’s public meetings, and the annual briefing presentation shall include BART’s annual safety report and all updates on BART’s efforts to continually improve its safety culture and enhanced compliance with all of the applicable safety rules, practices, policies and procedures.

6. During the probationary period, the Commission’s Safety and Enforcement Division (SED) shall:

(a)Monitor San Francisco Bay Area Rapid Transit District’s (BART’s) safety practices and compliance with this decision and maintain record of SED’s monitoring;

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(b) Report and recommend to the Commission’s Executive Director of any and all safety violations or non-compliances with this decision by BART and any recommended Commission actions, if any, against BART, including recommendation to (i) institute any Order Instituting Investigation and Order to Show Cause why the Commission should not extend the probationary period, reinstitute the stayed portion of the fine ($674,000) and/or impose additional fine and/or additional corrective actions (in addition to the reinstitution of stayed portion of the fine and corrective actions ordered in this Decision) for serious or egregious safety violations or non-compliances with this decision and/or (ii) issue one or more citations through its Resolution ST-163 authority to cite BART for less serious non-compliances as appropriate by SED; and

(c)No later than nine months prior to the expiration of BART’s probation, prepare and file SED’s final recommendation (as a compliance filing to proceeding docket for OIR 16-06-010) on whether BART’s probation should be extended beyond three years with justifications of its recommendation based on information SED has acquired during its monitoring and oversight activities.

7. During the probationary period, the Commission’s Executor is authorized and shall:

(a)Review the Commission’s Safety and Enforcement Division’s (SED’) report(s) and recommendation(s) of any and all safety violations or non-compliances with this decision by San Francisco Bay Area Rapid Transit District (BART) and any recommended Commission actions, if any, against BART, including recommendation(s) to (i) institute any Order Instituting Investigation and Order to Show Cause (OII/OSC) why the Commission should not extend the probationary period, reinstitute the stayed portion of the fine ($674,000) and/or impose additional fine and/or additional corrective actions (in addition to the

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reinstitution of stayed portion of the fine and corrective actions ordered in this Decision) for serious or egregious safety violations or non-compliances with this decision and/or (ii) issue one or more citations through its Resolution ST-163 authority to cite BART for less serious non-compliances as appropriate by the Commission’s Safety and Enforcement Division;

(b) Determine whether there is sufficient ground to (i) institute any Order Instituting Investigation and Order to Show Cause why the Commission should not extend the probationary period, reinstitute the stayed portion of the fine ($674,000) and/or impose additional fine and/or additional corrective actions (in addition to the reinstitution of stayed portion of the fine and corrective actions ordered in this Decision) for serious or egregious safety violations or non-compliances with this decision and/or (ii) issue one or more citations through its Resolution ST-163 authority to cite BART for less serious non-compliances as appropriate by the Commission’s Safety and Enforcement Division;

(c)Take all action necessary and appropriate to initiate an OII/OSC or citation process as the circumstances justify;

(d) For purposes of the Executive Director’s review, there is sufficient ground to institute an OII/OSC as to why the Commission should not extend the probationary period, reinstitute the stayed portion of the fine ($674,000) and/or impose additional fine and/or additional corrective actions (in addition to the reinstitution of stayed portion of the fine and corrective actions ordered in this Decision) for serious or egregious safety violations or non-compliances with this decision, if preliminary findings and recommendations by SED show that (i) BART failed to substantially comply with or has violated Ordering Paragraphs 1, 2, 3 or 5 of this decision, (ii) BART committed safety violation(s) same or similar to those found in this decision, (iii) BART committed safety

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violations dissimilar to those found in this decision but nonetheless posing immediate hazard to life, health, safety, property, or the public safety, and/or (iv) BART committed three or more other minor violations of safety rules or this decision. If an OII/OSC is instituted, the probationary period shall automatically be extended until the OII/OSC is resolved and the applicable time for appellate review has lapsed;

(e)For purposes of the Executive Director’s review, there is sufficient ground to instruct SED, if none has been issued, to issue one or more citations through its Resolution ST-163 authority to cite BART for less serious non-compliances of the safety rules and this decision than those identified in subsection (d) above. If one or more citation is/are issued and pending, the probationary period shall automatically be extended until the last of the pending citations is resolved and the applicable time for appellate review has lapsed; and

(f) Additional corrective actions to be considered and imposed in future OII/OSC and citation proceedings may include, but is not limited to, additional fine (beyond the total assessed fine amount in this decision), safety enhancement measures and posting of more signage on BART’s individual trains and other publication(s) of the violations and fines imposed.

8. San Francisco Bay Area Rapid Transit District’s probationary period ordered in this decision expires in three years from the issuance of this decision, unless the probationary period is extended pursuant to Ordering Paragraph 7(d) and 7(e) or the Commission extends this probationary period before its expiration based on good cause shown during the probationary period.

9. Exhibit SED 30 is received into evidence. 10. San Francisco Bay Area Rapid Transit District’s motion to strike

Commission’s Safety and Enforcement Division’s (SED’s) 17-page

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Closing Brief is granted, in part, and SED’s “Closing Brief,” pages 11 to 17 are stricken.

11. All rulings issued in this proceeding are confirmed.12. Any requests and motions, not expressly granted or otherwise

ruled on, are deemed denied.13. Investigation 16-06-010 is closed.

This order is effective today.

Dated October 11, 2018, at San Francisco, California.

MICHAEL PICKER PresidentCARLA J. PETERMANLIANE M. RANDOLPHMARTHA GUZMAN ACEVESCLIFFORD RECHTSCHAFFEN Commissioners

Attachment 1:

D1810020 Attachment A.pdf

Attachment 2:

D1810020 Attachment B.pdf

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