STB Opens Proceedings in TIH Disputes

Today the Surface Transportation Board published a notice in the Federal Register (76 FR 62149) announcing that it was instituting declaratory order proceedings on two toxic inhalation hazard (TIH) chemical shipping complaints. The complaints by PPG Industries and CF Industries deal with certain shipping requirements contained in tariffs for the movement of TIH chemicals from subsidiaries of RailAmerica.

The STB Decision upon which this notice is based establishes various time limits for the proceedings. They include:

• October 17^th, 2011 – Party of Record (POR) filings

• November 29^th, 2011 – End of discovery

• January 13^th, 2012 – POR evidence and arguments

• February 27^th, 2012 – POR reply evidence and arguments

• March 13^th, 2012 – POR rebuttal evidence and arguments

That STB Decision also notes that “the legal issues presented may ultimately affect not only the parties to the 2 cases before the Board, but others within the industry that transport, handle, receive, or ship TIH/PIH”. That being said the STB is permitting “discovery among complainants, defendants, CF, the RailAmerica railroads, and any other shippers potentially affected by the challenged practices [emphasis added], including shipper organizations that represent those shippers”.

This is a potentially precedent setting case for TIH shipping. As I noted in my blog on the initial filing by PPG, et al:

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.

Public (as opposed to POR) comments are also being solicited by the Board. Public comments can be submitted via the E-FILING link on the STB web site (Docket # FD 35517).