The new committee will have two years to solve the vexing question of liability for rail TIH shipments.

Surface Transportation Board Creating TIH Advisory Committee

The board promised it will be balanced, including railroads, tank car owners, shippers, and others. Its goal: Deliver recommendations within two years to solve the vexing question of liability for rail toxic by inhalation hazard shipments.

The Surface Transportation Board published a notice Tuesday announcing its creation of a Toxic by Inhalation Hazard Common Carrier Transportation Advisory Committee, possibly with 27 voting members. This balanced panel of stakeholders -- members who are at the general counsel or vice president level for entities involved in rail transportation of TIH, including but not limited to railroads, TIH shippers, insurers or underwriters, and tank car owners, lessors, or manufacturers, according to the board -- won't be paid to do a difficult job. Their mission is to deliver recommendations within two years to solve the vexing question of liability for rail TIH shipments.

The board held a hearing on rail hazmat transportation concerns two years ago and opened a docket about it. The American Association of Railroads suggested that the board adopt this policy statement: "It would not be an unreasonable practice for a rail carrier, under the provisions of 49 U.S.C. 11101(a) and 49 U.S.C. 10702, to require (if it elected to), as a condition of providing common carrier transportation services, that a TIH materials shipper indemnify and hold harmless the railroad against liability arising from a release of such materials in excess of (1) the maximum amount of insurance that the railroad carries for TIH transport or (2) $500 million for Class I railroads, whichever is greater; and to provide reasonable assurances in the form of insurance or other means to support such indemnity." TIH shippers opposed this request.

The board's announcement on Tuesday said it will not rule at this time on the AAR request and will hold the docket in abeyance while the committee does its work.

"The Board believes that an industry-derived solution to the question of what constitutes a reasonable response to a shipper's request that a railroad transport TIH cargo might be a better and potentially more economically sustainable solution than a Board-imposed solution, though the latter remains a lawful alternative in the absence of industry-wide consensus," the notice states. It says the committee will "provide independent advice and policy recommendations" and will work specifically on "the question of what is a railroad's reasonable response to such a request."

Surface Transportation Board Chairman Daniel R. Elliott was confirmed by the U.S. Senate in August 2009.The board asked for comments by 5 p.m. EDT Sept. 24 on the scope of the committee's mandate, its optimal size, and how to balance the competing interests fairly in its membership. The notice describes the committee structure proposed by the board, with all members chosen by the board's chairman, Daniel R. Elliott, a longtime transportation lawyer before he was nominated by President Obama in June 2009 and confirmed by the Senate in August 2009.

The proposed structure is:

  • 7 representatives from the Class I and II railroads
  • 3 from Class III railroads
  • 5 from chlorine shippers
  • 5 from anhydrous ammonia shippers
  • 4 currently engaged in academia or policy analysis
  • 2 with an insurance or underwriting background
  • 1 from tank car owners, car lessors, or car manufacturers

The board's three members would serve as ex officio members, and Eliott could invite representatives from the U.S. Departments of Homeland Security and Transportation to serve in advisory roles.

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