July 8, 1999

Peter Douglas, Executive Director
California Coastal Commission
45 Fremont Avenue, Suite 2000
San Francisco, CA 94105-2219
Tel: (415) 904-5200
Fax: (415) 904-5400

Dear Mr. Douglas:

This accompanies documents and information that bear on the request for revocation of Coastal Permit Application No. 1-98-100. Included are the following:

Important new railing information

The first document contains important new information: There are at least two railings that have already been approved and used in California that could have been proposed by Caltrans for use on the Noyo Bridge in the type of two-railing system that I have proposed. These railings are currently accepted for use on the Federal Highway System.

A two-railing system using one of the cited railings, the "California Type 9" railing, as the traffic railing would provide views significantly superior to the proposed Caltrans railing. Knowledge that the Type 9 railing meets current federal safety standards significantly changes the basis for deciding whether my revocation request should be approved. There is no longer any question that Caltrans personnel knew of a railing that met current safety standards and that could provide a superior alternative to the proposed railing.

My proposal for a two-rail system was made at a hearing of the Fort Bragg Planning Commission on Caltrans’s permit application on December 9, 1998. Caltrans personnel were there to hear my presentation and received a copy as part of the record. Caltrans had adequate time to consider which of its railings might be used in my conceptual two-rail system. Yet, Caltrans failed to present the Commission with two-railing systems incorporating a railing known to it to meet current safety standards. There is no longer any question about whether or not Caltrans intentionally withheld information on alternative railing systems that meet current safety standards.

A note of explanation is in order as to why this critical information is being submitted so late in the revocation process. I had obtained information on three alternative railing systems that I felt (and still feel) are fully acceptable railings that Caltrans should have presented to the Commission. When Mr. Anziano attempted to raise doubts about whether several these railings had been accepted in a timely manner, I requested the FHWA office in Washington, D.C. to send me its 1997 listing of railings that were accepted for current use on the National Highway System. I received the listing in the last week of June, but because of the press of responding the staff report, I did not focus enough on the contents of the report until yesterday to realize that the listing contained a California railing that could offer superior views for the Noyo Bridge.

The section on railing information also documents that, contrary to Caltrans testimony, the Noyo Bridge is not required to meet federal safety standards.

Comments on the Staff Report

In order to reach a recommendation of denial of the request for revocation, the Commission staff seriously erred in its interpretation of my contentions, accepted Caltrans assertions without requiring any supporting evidence, and placed an unreasonable burden of proof on me, rather than using the resources of the Commission to obtain important, relevant information that only it can obtain.

My comments on the staff report shows that the analyses made by the staff are badly flawed and do not provide legally valid support for a denial of my request for revocation.

In these comments, I introduce evidence bearing on the question of whether Caltrans intentionally provided erroneous or incomplete information about alternative railings. The evidence consists of statements made to me by Caltrans personnel about what was known within the Structures Division of Caltrans about the availability of alternative railings in the latter part of 1998. I had hoped to be able to make the case for revocation without introducing this evidence, because I was and am unwilling to identify the source of these statements. The Commission has the legal authority, however, to determine the truth of these statements by requesting Caltrans answer a list of questions that I submitted on June 26, 1999.

My comments on the staff report were prepared prior to learning that California Type 9 railings met current federal safety standards. I have not modified these comments, but the reader should recognize how much the California Type 9 railing reinforces the case for approval of the request for revocation, particularly with respect to the third test (intentionality) under bridge railings.

Caltrans News Release and Letter from the Regional Water Quality Board

The Caltrans News release shows that Caltrans conducted an internal review to determine whether it would accept the $1 million mitigation fee. The review delayed the project sufficiently so that Caltrans stated "it is not likely that significant work will be accomplished this year.

The attached letter from Charles Vath confirms that the North Coast Region of the California Regional Water Quality Control Board (RWQCB) has not yet issued a permit for the Noyo Bridge project. This contradicts the assertion made by Mr. Anziano in his letter of June 22, 1999 that Caltrans now had its permit from the RWQCB.

The letter confirms my contention in my letter of June 21 that the one-year delay in the construction of the Noyo Bridge was entirely due Caltrans. Following the imposition of the $1 million mitigation fee, it began an internal review that was not completed until April 16. That the lack of a water-quality permit had no effect on the schedule is confirmed by the fact that Caltrans applied for and received its funding approval from the California Transportation Commission on June 7 without the water-quality permit.

Letters to Caltrans from FHWA

The letters to Richard Peter show that the railing proposed for the Noyo Bridge did not receive formal acceptance from the FHWA until May 18, 1999, more than two months after the initial coastal permit hearing the Noyo Bridge. This is a far tardier formal acceptance than that for the NETC railing that I cited and whose timely availability Mr. Anziano criticized in his letter of June 22, 1999. Similarly, the two stages of acceptance for the 80SW railing is very similar to what occurred for the Massachusetts railing, whose timely availability Mr. Anziano also questioned.

In the case of the Massachusetts railing, the initial letter indicating that formal acceptance would be forthcoming was issued in September 1998. Shortly following this September letter, the railing was accepted for use on the National Highway System in Massachusetts by the local office of the FHWA. Thus, the FHWA had accepted the railing for use well prior to the Noyo Bridge permit hearing. It just had not issued a formal acceptance letter.

Sincerely,