Rail Safety Advisory Committee Holds Emergency Meeting on Haz Mat

Yesterday, the Federal Railroad Administration's (FRA) Rail Safety Advisory Committee (RSAC), met to consider additional regulatory or other safety measures in response to the Lac-Megantic, Quebec incident in June. The emergency meeting follows the issuance of an Emergency Order and Safety Advisory on August 2, 2013 - see here for my prior post on those issues, and links to the Order and Safety Advisory.

The attached press release from the FRA states the RSAC has accepted four tasks: appropriate crew size, requirements for securing trains, operational testing of employees to ensure compliance with rules, and issues relating to the operational control and handling of hazardous materials in transportation. The RSAC will now establish working groups to address the tasks which will propose recommendations to FRA in April 2014.

FRA Follows Suit with Emergency Order on Haz Mat Train Operations

Following the emergency rules issued by Transport Canada ( see my 7/30/13 post here ) the FRA issued an Emergency Order on Friday with similar requirements.

The FRA Emergency Order and Safety Advisory calling for as yet to be scheduled Rail Safety Advisory Committee meeting, are effective immediately and are in direct response to the Lac Megantic disaster in Quebec. Though the FRA Order notes that neither Transport Canada nor the Canadian Transportation Safety Board has determined a cause of the Lac Megantic derailment, the FRA Order clearly focuses on the securement of unattended trains. The FRA Order prohibits haz mat trains from being left unattended outside of yards or terminals unless authorized, and requires communication between train crews and dispatchers about how trains are secured (including tonnage and number of hand brakes applied) if a train is left unattended.

The FRA Order also requires railroads to have qualified employees inspect rail equipment which emergency responders have been on before leaving a train unattended, which is a nod toward the theory that actions of firefighters had some role in the Lac Megantic breakaway train. Prior to the train rolling away, a fire in a locomotive had been extinguished by local authorities.

Unlike the Canadian emergency rule, the FRA Order does not immediately mandate minimum 2 man crews on haz mat trains, rather, the Safety Advisory notes that crew size will be a task discussed at the forthcoming meeting of the RSAC.

Environmental Groups Sue Over Coal Export Financing

A coalition of environmental advocacy groups has sued the U.S. Export-Import Bank in an effort to void the Bank's $90 million loan guarantee to support the export of Appalachian coal primarily from ports in Baltimore and Hampton Roads, VA. The action, CV-13-3532, filed in federal court in San Francisco, was brought by various environmental groups including the West Virginia Highlands Conservancy, the Chesapeake Climate Action Network, and the Sierra Club.

Arguing that the transport, storage, and loading of coal creates dust, as well as exhaust from train and ship engines, the suit seeks to void the loan guarantee to coal broker Xcoal for the claimed failure of the Ex-Im Bank to perform an Environmental Impact Statement or analysis under the National Environmental Policy Act (NEPA).

Here is a news account describing the suit from the Baltimore Sun.

Transport Canada Prohibits One-Person Crews on Haz Mat Trains

In response to the derailment and subsequent disaster in Lac Megantic, Quebec, Canada's Transportation regulatory agency, Transport Canada, has issued 6 Emergency Directives. Among the new emergency rules are requirements that all unattended controlling locomotives on main tracks and sidings have their cabs protected from unauthorized access, and that railroads ensure handbrake rules under the Canadian Rail Operating Rules are complied with when a locomotive attached to one or more cars is left unattended for more than an hour. The Directive also prohibits locomotives coupled to cars carrying "dangerous goods" (i.e. Canada's term for hazardous materials) from being left unattended on a main track. Regarding crew size, every locomotive coupled to one or more haz mat cars transporting dangerous goods, must be operated by no fewer than two qualified crew members. Here is a link to the Canadian Transportation Safety Board's "active investigation" page about the incident.

National Freight Advisory Committee holds Inaugural Meeting

The USDOT's National Freight Advisory Committee held its inaugural meeting yesterday in Washington. The Committee was created to provide advice and recommendations to the DOT Secretary on matters involving freight transportation and the implementation of the MAP-21 legislation (Moving Ahead for Progress in the 21st Century Act), 23 USC Sec. 101 et seq. According to the Committee's Charter, the main topics the Committee is to provide assistance and advice to DOT are: 1. Development of a National Freight Strategic Plan; 2. Establishment of a National Freight Network; 3. Strategies to assist States in developing State Freight Advisory Committees and State Freight Plans; 4. Development of measures of the condition, safety, and performance of the freight network, and 5. Development of freight transportation investment, data, and planning tools. The Committee's website link, is attached here. Included on the site is the membership of the Committee, its Charter, and the agenda for the first meeting.

FRA Announces Rail Crossing App

Today the Federal Railroad Administration announced the Rail Crossing Locator iOS app, available for free from the Apple App Store. The FRA's press release announcing the App is attached here. Users of the App can locate information on the warning systems and other information at crossings nationwide based on their geographic location, as well as the ability the report information about crossings.

Divided Fourth Circuit Panel Rules No Carmack Amendment Limitation for Damaged Shipment

A divided panel of the U.S. Court of Appeals for the Fourth Circuit, ruled today that a rail carrier was responsible for all damage caused during shipment to a $1.3 million electrical transformer. The Opinion in ABB Inc. v. CSX Transportation, Inc. is attached here. The majority of the three-judge panel held that the railroad had not limited its liability under the Carmack Amendment (49 U.S.C. sec. 11706). Holding that in order to overcome the default posture of the Carmack Amendment, which imposes all liability for losses in shipment on the carrier, the Court explained "the carrier and the shipper must have a written agreement that is sufficiently specific to manifest that the shipper in fact agreed to a limitation of liability." The Court's decision turned largely on the absence of a specific reference to the carrier's rate terms on the Bill of Lading issued by the shipper. The shipper-issued bill of lading did not reference the carrier's price publication, and the shipper acknowledged its own computer program prevented it from inserting the price code referencing the carrier's terms. However, the bill of lading did state that the shipper was aware of all carrier terms covering the shipment. Therefore, even though bill of lading generated by the shipper stated it was bound to the carrier terms covering the movement, because there was no actual reference the carrier's price terms, the Court found the parties did not actually agree in writing to limit the carrier's liability. One interesting portion of the majority opinion is the discounting of the word "tariff" as an out dated term no longer operative in a de-regulated rail industry. Noting that prior to de-regulation, shippers were held to have constructive knowledge of published rail tariffs, the Court distinguished the current practice where rail tariffs are no longer required to be published with the government, but rather are available from carriers by request. Terming the phrase "tariff" as used in the shipper's own bill of lading as "generic and outdated" the majority simply did not consider the limitation of liability specific enough. In a strongly-worded dissent, Circuit Judge Agee pointed out that the shipper was essentially seeking relief from the contract it drafted, i.e. the bill of lading, which incorporated by reference the carrier rate rules which limited liability. Taking issue with the majority's view that "tariff" terms are generic and outdated, and referring to the shipper-generated bill of lading referencing agreement to the carrier's terms, the dissent stated, "Nothing in the Carmack Amendment requires the carrier to hold the shipper harmless from the shipper's negligence, particularly where the carrier has every reason to take the shipper at its word."