20080725Decision Memo.pdf

DECISION MEMORANDUM
TO:COMMISSIONER REDFORD
COMMISSIONER SMITH
COMMISSIONER KEMPTON
COMMISSION SECRETARY
COMMISSION STAFF
FROM:DON HOWELL
DEPUTY ATTORNEY GENERAL
DATE:JUL Y 24, 2008
SUBJECT:ADOPTING THE NEW FEDERAL SAFETY RULES REGARDING THE
TRANSPORT A TION OF HAZARDOUS MATERIALS BY RAIL, IDAP
DOCKET NO. 31-7103-0801
This year the U.S. Department of Transportation (DOT), the Pipeline and Hazardous
Materials Safety Administration (PHMSA) and the FRA have issued new safety rules to enhance
the safe transportation of hazardous materials transported by rail. The Staff recommends that the
Commission update its rail safety rules and incorporate the new federal changes. The federal
changes are discussed in greater detail below.
First, DOT and PHMSA have added 30 new substances to the list of hazardous
substances contained in 49 C.R. Part 172. The list of hazardous materials was also edited to
align the list with hazardous substances designated by the u.s. Environmental Protection Agency
(EPA). 73 Fed.Reg. 1089 (Jan. 7 , 2008). Second , DOT and PHMSA amended the hazardous
material regulations in scattered sections of 49 c.F.R. Parts 171 , 172 , 173, 178 and 180. In
particular, the agencies added new entries to the hazardous material listing and set out additional
rail car placarding requirements. These changes also address the transportation of various
ethanol, alcohol , and gasoline blends. Railroads are required to develop alternative emergency
response actions for various concentrations of ethanol and alcohol in gasoline mixtures. Part 172
was also amended to require hazardous material shippers to provide emergency response
telephone numbers on the material shipping documents.
Third, the three agencies promulgated new rail safety rules in 49 C.R. Parts 172
and 174 that require railroads to compile annual data on certain shipments of explosives
, "
toxic
DECISION MEMORANDUM
by inhalation " and radioactive materials. Rail carriers are to use the data to analyze safety and
security risks along rail routes and assess alternative routing options. The agencies also adopted
a new requirement that railroads inspect placarded hazardous material rail cars for signs of
tampering or suspicious activities. These new safety rules implement recommendations of the
9/11 Commission Act of 2007. 73 Fed.Reg. 20751 (April 16, 2008).
ST AFF RECOMMENDATION
The Staff recommends that the Commission adopt these new safety rules by
incorporation. The new safety rules are to be incorporated in the October 1 , 2008 Edition of
Title 49, Code of Federal Regulations. More specifically, Staff proposes that the Commission
Railroad Safety Rule 103 be amended as shown in the attachment.
COMMISSION DECISION
Does the Commission wish to adopt the new federal safety rules? Does the
Commission wish to issue a Notice of Proposed Rulemaking to be published in the
Administrative Bulletin on October 1 , 2008?
f)~
Don Howell
Deputy Attorney General
blsfN:31-7103-0801 Decision Memo
DECISION MEMORANDUM
IDAPA 31
TITLE 71
CHAPTER 03
31.71.03 - RAILROAD SAFETY AND
ACCIDENT REPORTING RULES
103. TRANSPORTATION OF HAZARDOUS MATERIAL BY RAIL (RULE 103).
01. Hazardous Material Defined. "Hazardous material" means a substance or
material which has been determined by the United States Secretary of Transportation to be
capable of posing an unreasonable risk to health, safety, and property when transported in
commerce, and which has been so designated by the Secretary of Transportation. The term
includes hazardous substances, hazardous wastes, marine pollutants, elevated temperature
materials as defined in 49 C.R. Section 171.8, materials designated as hazardous under the
provisions of 49 c.F .R. Section 172.101 , and materials that meet the defining criteria for
hazardous classes and divisions in 49 c.F .R. Part 173.(3-30-01)
02. Adoption of Federal Safety Regulations. The Commission hereby adopts by
reference 49 C.R. Parts 107, 171 , 172, 173, 174 , 178 , 179, and 180 (October I ;WW2008). All
customers offering hazardous materials for shipment by rail and all railroads operating in Idaho
that transport hazardous materials listed in, defined by, or regulated by the adopted federal safety
regulations must comply with 49 C.R. Parts 107, 171 , 172, 173 , 174, 178 , 179 and 180.
(1 2 08)(
03. Recognition of Federal Exemptions. Whenever a railroad or shipper has applied
to a federal agency and has been granted an exemption from the transportation or packaging
requirements of the federal safety regulations adopted in Subsection 103., the federal
exemption will also be recognized under these rules. The Commission shall not administer a
program to duplicate consideration or approval of federal exemptions on a state level. (3-30-01)