RAILROAD / U.S. Surface Transportation Board entered partial decision on tariff rules for Toxic-by-Inhalation and Poisonous-by-Inhalation freight carried by railroads under their common carrier obligations – Little in the way of clear lines drawn at this stage, STB deferred decisions on (1) priority train requirement, and (2) three TIH/PIH cars per train limit, pending comments that STB seeks from FRA, PHMSA and TSA.

Who is affected? Railroads; shippers of TIH / PIH freight.

(November 28, 2012, Decision of entire Board on petition by C.F. Industries, Inc. and several other chemical shippers and trade associations for the U.S. STB to “declare invalid and unenforceable certain requirements promulgated by RailAmerica, Inc., and several of its railroad subsidiaries regarding rail transportation of [TIH and PIH]”.

“Little in the way of clear lines drawn at this stage”? U.S. STB’s statement accompanying this decision leaves quite a lot unanswered.

At the outset, railroad holding company and its subsidiaries issued tariff to petitioner chemical companies that required:

1. Notification in advance of time railroad is requested to take possession – holding company and railroads withdrew this demand from the tariff afterward.

2. “Prior versions of the challenged tariffs included a speed limit of 10 miles per hour for all trains carrying TIH/PIH. The revised tariffs … do not contain a specific speed limit, and instead they state that, ‘the train will travel at the appropriate speed for safe operation [based on conditions, etc.].

3. “The challenged tariffs require TIH/PIH to travel in priority train service with no more than three TIH/PIH cars per train.

As of this decision (November 28, 2012), U.S. STB states that simply because TIH/PIH is being carried by cars in the train consist by itself does not always dictate that lower speed is always necessarily required.

U.S. STB asks FRA, PHMSA and TSA to give U.S. STB “comments” on the following “by January 28, 2012 (sic)”:

“1. Does the priority train service adopted by respondents for TIH/PIH transportation by rail result in a net benefit or a net detriment to safety and/or security?

“2. Does the three-car limit adopted by respondents for TIH/PIH transportation by rail result in a net benefit or a net detriment to safety and/or security?

“3. Are the priority train service and the three-car limit adopted by respondents consistent with your agency’s safety and/or security regulations regarding TIH/PIH transportation by rail?”

It appears that this process of identifying the obligations of railroads as common carriers with respect to TIH/PIH is in early days – though with the due date for the comments it may be that the U.S. STB wishes to conclude this expeditiously.