II. Background

In October 1993, the Commission opened this Rulemaking to consider mitigations for local rail safety hazards within California. The Rulemaking was prompted by the disastrous derailments and toxic spills at Dunsmuir and Seacliff, California, in July 1991, and other rail accidents involving derailments, runaway trains, injuries and fatalities. In addition, the California Legislature passed legislation requiring this Commission to adopt regulations to prevent serious rail accidents. The legislation required the Commission to identify local safety hazard sites on railroad lines in California and mandated that the Commission adopt regulations to eliminate or reduce recurring railroad accidents at these identified local safety hazard sites.

In September 1997, the Commission issued D.97-09-045 (75 CPUC2d 1), adopting safety regulations to eliminate or reduce essentially local safety hazards. The decision identified several local safety hazard sites in California using statistical methods and models to analyze site characteristics and accident concentrations. In the decision, the Commission stated it took "great pains to ensure that this Commission has done nothing to weaken or conflict with the rightful and valuable exercise of federal jurisdiction" and it "carefully and thoroughly considered every safety measure to ensure that these measures do not `unduly' or `unreasonably' burden interstate commerce." (75 CPUC2d 1 at 10.) The Commission's regulations were intended to complement the Federal Railroad Administration's (FRA) efforts, with the hope of reducing or eliminating derailments and toxic spills in California.

Following issuance of D.97-09-045, the Commission's rail safety regulations were actively litigated in federal courts, leading to several court decisions including Union Pacific Railroad Co. v. CPUC, 109 F.Supp. 2d 1186 (N.D. Cal. 2000) and Union Pacific Railroad Co. v. CPUC, 346 F.3d 851 (9th Cir. 2003.) In the latter decision, the Ninth Circuit Court of Appeals concluded that Commission rules were preempted by federal law in several areas and remanded the issue of "train make-up" or "track train dynamics" (TTD) rules to the district court. In response to the remand, the parties - namely the Rail Operations Safety Section of the Commission's Consumer Protection and Safety Division ("Staff"), Union Pacific Railroad Company, and Burlington Northern and Santa Fe Railway Company (collectively "Railroads") - settled train make-up rules by filing a Stipulated Final Judgment allowing the Commission to enforce the Railroads' rules for train make-up at the local safety hazard sites. The Stipulated Final Judgment was approved by the U.S. District Court for the Northern District of California on May 10, 2004. (Case No. C 97-03660-TEH.)

On June 30, 2004, Staff filed a petition to modify D.97-09-045 and conform it to the Stipulated Final Judgment and other court orders.¹ The Railroads responded in support of Staff's petition, with minor additions and corrections. Staff filed a replied on August 20, 2004, agreeing with all of the Railroads' suggested changes.

¹ Under the Commission's Rules of Practice and Procedure, petitions for modification are normally required to be filed with one year of the issuance of the decision. (Rule 47(d).) While Staff's petition is filed almost seven years after the original decision, the lengthy litigation of the matter was finally settled in May 2004 with the parties' Stipulated Final Judgment. This petition is timely since it was filed shortly following final court action.