STB Looking at Special TIH Rail Handling Rules

This week the conflict between the railroads and chemical industry over the shipping of toxic inhalation hazard (TIH) chemicals via railcars has gone back to the Surface Transportation Board (STB) in the form of a new complaint by filed by a variety of industry advocacy groups and a TIH shipper. On Tuesday the STB received a complaint (NOR 42129) from American Chemistry Council, the Chlorine Institute, the Fertilizer Institute, and PPG Industries concerning the new tariff and standard operating practice (SOP) implemented by RailAmerica, a railroad holding company owning and controlling 40 short-line and regional common and contract railroads (including AGR, the railroad specifically named in the complaint), for handling TIH railcars.

STB Complaint NOR 42129

The complaint challenges the following provisions of the tariff (AGR Tariff 9000) and the RailAmerica TIH/PIH Standard Operating Practice:

• That all TIH commodities will be moved only in dedicated train service;

• That all TIH movements will be handled only by special permit that must be requested and tendered to AGR five days in advance of movement;

• That no more than 3 cars loaded with TIH commodities will be transported in the same dedicated train at any time;

• That the minimum fee for special train service is $15,000 per train;

• That all TIH shipments in dedicated train service shall be moved at no more than 10 miles per hour;

• That a qualified mechanical employee of the RailAmerica railroad accepting a TIH shipment for interchange inspect every TIH car before pulling the car from the interchange track; and

• That employees of the RailAmerica subsidiary railroad accompany the TIH shipment at all times as long as the shipment is on RailAmerica property and until the receiving entity acknowledges receipt of the shipment.

Additionally, the complaining parties filed a request that the STB order RailAmerica to stop enforcing its tariff and SOP until the Board has a chance to act on the original complaint. As of Friday evening the Board has not received a reply from RailAmerica.

Common Carrier Obligations

In recent years the railroads have been attempting to get TIH chemicals exempted from their common carrier obligation to accept all properly packed and tendered shipments. They complain that the potential financial risks from a rail accident resulting in a large scale release could wipe out even the largest Class 1 railroad. The STB has rebuffed previous attempts to establish a specific TIH exemption to this obligation and to charge higher tariffs for TIH chemicals based upon this risk.

The actions described in this motion appear to be a combination of risk reduction measures (for example: slower train speeds reduce the risk of catastrophic release in the event of an accident) and efforts to discourage the shipment of TIH chemicals by railroad (for example: only three TIH railcars per train reduce the number of railcars large scale producers can ship in a given period of time).

TIH Rail Security

As described in the complaint some of the RailAmerica procedures appear to violate the limited number of rail hazmat security requirements that do exist. The complaint notes that the requirement to hold rail cars for the formation of a ‘dedicated train’ is in violation of 49 CFR §174.14(a) and §174.14(b). Additionally the five day shipping notice provides potential attackers with a significant planning window for an attack if they can gain access to the permit request via insiders on either side of the request procedure.

TIH Precedents

If the STB upholds any of the provisions of the RailAmerica TIH handling procedures, we can expect that those procedures will be adapted by other railroads. Depending on the wording of any decision adverse to RailAmerica there is the possibility that only minor modifications to the SOP and tariff will be made to test the limits of the STB ruling as was done in the tariff case between UP and USM.

This is an STB case that will bear following.