STB abandons hazmat liability proposal

The Surface Transportation Board said in a decision released Friday that it is backing off from its proposal, announced last August, to create an advisory group to address liability-sharing issues in the rail transportation of “certain toxic-by-inhalation hazardous commodities.”

The responsibilities of the proposed Toxic by Inhalation Hazard Common Carrier Transportation Advisory Committee would have included providing an  outline for “a railroad’s reasonable response to a shipper’s request that it transport TIH cargo.”

“Comments on the proposed advisory group raise a number of antitrust issues and reveal sharply conflicting positions on fundamental legal questions,” said the Board. “Not wanting to expose stakeholders to potential antitrust liability by participating in this advisory group, and given the wide difference of opinions between stakeholders on basic liability-sharing issues, the Board has decided not to create this advisory group. It will, instead, continue to address the liability-sharing issues to the degree that they are before this Board on a case-by-case basis.”

STB said comments filed by 16 respondents to the proposal demonstrated “a sharp difference of opinion between railroad and shipper interests regarding the very nature of the board’s authority to address liability.”

“For example, one [shipper group] took the position that ‘[a] regulatory recommendation that would condition a railroad’s common carrier obligation upon any form of liability limit or indemnification is beyond the Board’s authority to implement.’ While we do not necessarily agree with this view of the limits of our authority, this opinion expressed by a key stakeholder and echoed by other shipper interests, makes it unlikely that the advisory group could form any meaningful consensus on policy recommendations to the agency.”

“Another concern raised by numerous parties,” the board said, “is whether participation in the federal advisory committee would expose a company to antitrust liability. It was our hope that the advisory committee would develop guidelines that would permit it to discuss issues in a manner compliant with the antitrust laws. But we cannot guarantee that [the committee’s] activities would be immune from antitrust enforcement in this context.”