RAILROADS (POSITIVE TRAIN CONTROL) / U.S. Court of Appeals for the D.C. Circuit dismisses chemical industry shippers’ challenge to Federal Railroad Administration’s rule requiring implementation of Positive Train Control (PTC) for lack of “ripeness”. Put another way, the court ruled that the Chlorine Institute and its members had NOT shown “injury in fact” that was “concrete and particularized”. This leaves the door open for renewed litigation at such point in time that after such shippers can show tangible commercial harm to themselves as a result of the PTC mandate. NOTE: This actions was not as simple as the industry opposing PTC technology as such – it went to the way in which the Federal Railroad Administration rule that mandates PTC might constrain such shippers’ ability to ship by rail, for instance, in affording railroads and not shippers the decisions as to what sections of their track networks will obtain the PTC collision-avoidance technology.

Chlorine Institute v. Federal Railroad Administration, No. 12-1298 (U.S. Court of Appeals for the District of Columbia Circuit, June 11, 2013. Copy of court-issued opinion available here.

This is only an “opening shot” in this battle.

The court did not address the merits of the Chlorine Institute’s claim because of  the “ripeness” doctrine that precludes access to the federal court system for cases and controversies deemed not ready for litigation.

Here the court basically ruled that no one had really been burdened by the rule yet because it had not yet been applied to anyone in a practical, operative sense. 

UPCOMING / Railroad “de-regulation” vs. alleged “re-regulation” pertaining to Toxic-by-Inhalation / Poisonous-by Inhalation (TIH / PIH) railroad tariffs – CF Industries: U.S. Surface Transportation Board should require railroads to get U.S. STB approval before altering terms on which they handle TIH / PIH rail cars. COMMENTS: As with the reciprocal switching proposal – this does not take place in a context of a truly free market with robust competitive alternatives available to shippers. Denial of CF Industries’ petition arguably would leave it subject to “take-it-or-leave-it” posture with railroads as it relates to the terms of TIH / PIH shipments.

There is a lot involved in this proceeding, and more than can be concisely addressed here about the railroads’ reply brief filed February 27, 2013. Free copy available here.

This post focuses on the application made by CF Industries to the U.S. STB seeking it to require that railroads obtain approval prior to making any changes in tariff terms relating to shipment of TIH / PIH loads.

The gist of each side is captured in the railroads’ brief this week:

“… the Railroads would need to obtain prior Board approval and written support for such changes from FRA, PHMSA, and TSA. This request runs contrary to the Staggers Act. The Staggers Act provided railroads with rate freedom, which includes practices. In essence CF is asking that the Railroads file their tariffs with the Board for approval before those tariffs become effective.”

A U.S. STB resolution worth watching for.

Legal take-away:

On CF Industries’ petition for a declaratory order It is hard to agree with the railroads’ argument that all terms of TIH / PIH freight carriage amount to a question of “rate freedom”. More than economics and price are at stake in the concerntration of TIH / PIH rail cars on a particular train consist or other operational details relating to safety.

Consistent with this safety versus economics fault line in the petition for declaratory order, on January 28, 2013 the U.S. STB asked the Transportation Security Administration and the U.S. DOT hazardous materials safety agency (PHMSA) for comment on the operational terms (“3-car limit” “priority train service” terms) and for TIH / PIH involved in the companion proceeding to this one.

Practical take-away:

I have no way at this point of envisioning the end-game here.

The railroads fighting these two proceedings contend with their “common carrier” status and related obligation to carry properly tendered loads in the TIH / PIH category. And the chemical and related TIH / PIH shippers cast themselves as “captive” customers to the railroads with no good alternatives either inside the rail sector or outside it with other modes.

RAILROAD / Administrative Rule – / Federal Railroad Administration clarifies but does not alter its December 11, 2012 proposal on implementing the Rail Safety Improvement Act of 2008 to require that “certain passenger and freight railroads install positive train control (PTC) systems”. Key here: Responses the FRA makes to Association of American Railroads petition.

In a petition for rulemaking dated April 22, 2012 the Association of American Railroads (AAR) proposed – regarding a future FRA rule about Positive Train Control systems – “expanding the de minimis exception and other amend[ing] the rules concerning the “limited operations” exception, en route failure of trains operating with PTC systems, and the discontinuance of signal systems once PTC systems are installed”. 

Note: This is categorized in this blog under both “RAILROAD” topics and “HAZARDOUS MATERIALS”. The first occasion I had with the CEO of a Class I railroad to discuss what I referred to as “the new proposed rules on rail transportation of poisonous-by-inhalation / toxic-by-inhalation” materials that CEO replied simply that the main issue in this area is simply the specifications and implementation of positive train control.   Continue reading

RAILROAD / Positive Train Control – Federal Railroad Administration proposes to expand exceptions to application of FRA’s original 2010 rule that implements mandates of the Rail Safety Improvement Act of 2008 requiring certain passenger and freight railroads to install positive train control systems.

Who is affected? Railroad carriers and providers of rail rolling stock (locomotives and rail cars).

December 11, 2012, Notice of Proposed Rule Making ):

This is part of the implementation of Positive Train Control (“PTC”) into U.S. railroads pursuant to the Rail Safety Improvement Act of 2008. This notice of proposed rule making is a Federal Railroad Administration response to a petition for rule making dated April 22, 2011 concerning a final rule and clarifying amendments on this promulgated in 2010. That petition was brought by the Association of American Railroads (which is comprised of the Class I railroads) in what amounts to a course correction in PTC implementation. Broadly speaking, this would revise the de minimis exception to PTC rules in various respects, discontinue those signal systems made unneeded by the installation of PTC systems, and otherwise refine the 2010-promulgated rules. Continue reading