STB Issues Decision on RailAmerica TIH/PIH Shipment Rules

Transportation Update

Date: November 29, 2012

Overview

On November 28, 2012, the Surface Transportation Board (STB) issued a decision addressing tariff rules applicable to Toxic-by-Inhalation (TIH) and Poisonous-by-Inhalation (PIH) traffic carried by certain railroad subsidiaries of RailAmerica, Inc. The RailAmerica tariff originally required:

  • Notification by the shipper prior to the arrival of TIH/PIH cars on a RailAmerica line
  • A maximum speed of 10 mph for TIH/PIH trains
  • Priority train service
  • No more than three TIH/PIH rail cars per train

The STB found that the notification issue was moot because the defendants had removed that requirement from the tariff. As for the speed limit, the defendants revised the tariff during the proceeding to specify only an "appropriate speed" given the operating conditions. The STB found that such a specification was reasonable, but cautioned the defendants that the mere presence of TIH/PIH products on a train was not a legitimate reason to mandate lower speed limits for TIH/PIH trains compared to other trains.

The STB deferred decisions on the priority train requirement and three-car limit because the relevant arguments center upon whether the challenged tariff provisions make rail transportation more or less safe. The STB noted that rail and hazardous materials safety issues are primarily governed by three other agencies: the Federal Railroad Administration, Pipeline and Hazardous Materials Safety Administration and Transportation Security Administration. In light of this, the STB has asked those agencies to comment on three issues:

  • Whether priority train service results in a net safety benefit or detriment
  • Whether the three-car limit results in a net safety benefit or detriment
  • Whether priority train service and the three-car limit are consistent with each agency's safety and security regulations for rail transport of TIH/PIH

Comments from the agencies are due by January 28, 2013. Following receipt of their comments, the STB should release a final decision on the two remaining issues.

The case is known as STB Docket No. 35517, CF Industries, Inc. v. Indiana & Ohio Railway, Point Comfort and Northern Railway, and the Michigan Shore Railroad - Petition for Declaratory Order. The issues in this case implicate any entity that ships, receives or is affected by railroad transportation of TIH/PIH commodities. Please contact Thompson Hine's Transportation practice group with any questions regarding this important litigation.