Shippers Oppose Petition By Union Pacific Seeking STB Permission to Decline Hazmat

By Rip Watson, Senior Reporter

This story appears in the April 27 print edition of Transport Topics.

Union Pacific Corp.’s petition seeking Surface Transportation Board permission to limit the railroad’s common carrier freight-hauling responsibilities has elicited a common response from nearly all other interested parties: Absolutely not.

The Transportation Department and the Transportation Security Administration unit of the Department of Homeland Security joined shippers opposing the railroad’s request, in comments filed April 10 at the STB.

Only CSX Corp., another railroad, expressed support.

Union Pacific’s February petition sought permission to refuse a 1,900-mile shipment of chlorine from Utah to Louisiana, a step that would contradict the “common carrier obligation,” a 122-year old federal statutory requirement to carry all types of freight.

The railroad argued that it should have the power to decide to ship the chlorine from a source just 300 miles from the customer to limit the possibility of catastrophes such as a 2005 South Carolina derailment and chlorine release that killed nine people.

“Granting the petition will not enhance transportation security and safety,” said TSA, which is headed by former Union Pacific executive Kip Hawley. “Future rail security and safety enhancements should be accomplished through DHS and DOT rulemakings.”

“By asking to be relieved of the requirement to publish rates for particular movements of chlorine, the railroad is effectively seeking to avoid its common carrier obligation,” DOT said in its comment. “Only Congress, by the passage of legislation . . . can modify a common carrier’s obligation.”

Trucking interests didn’t take a position on the latest request, which could lead to an increase of truck movements of chlorine because motor carriers dominate short-haul transportation.

Last year, when STB held a hearing about the common carrier obligation, National Tank Truck Carriers Inc. said carriers could gain new business if railroads could refuse to carry chlorine and other toxic by inhalation products.

However, NTTC President John Conley said at the time that such a shift of business would present problems because there was not enough specially equipped tank trailer equipment to handle toxic inhalants such as chlorine.

“We will watch this contest be-tween the railroads and their biggest customers from the sideline at this time,” Conley told Transport Topics on April 17. “We believe that if this drastic change is to be made to the railroad common carrier authority for which the public has given the railroads so much, it will have to be done through Congress.”

Seven shipper groups, including chemical, coal and industrial shippers, attacked the railroad’s ap-proach, and its credibility, in a joint filing. They maintained that only Congress could make any changes to the common carrier obligation. Individual shippers such as Dow Chemical Corp. also criticized the plan.

“UP’s statement of facts is neither complete nor accurate,” the shipper groups said, noting that U.S. Magnesium, which requested the original rate, had been moving chlorine from Utah to various destinations by rail for 30 years. The shipper requested the rate for an individual shipment only after the two parties couldn’t reach a contract agreement.

Shipper groups opposing the plan were: American Chemistry Council, Chlorine Institute, Edison Electric Institute, Forest and Paper Association, Fertilizer Institute, The National Industrial Transportation League, and Paper and Forest In-dustry Transportation Association.

On the other hand, “CSX supports UP’s request for guidance on whether the transportation of TIH materials long distances is reasonable when alternative sources of chlorine are available much closer to the receiver,” the rail carrier said. “It is better that these ultra-hazardous materials move over shorter distances rather than longer distances.”

The Association of American Railroads did not take a position on Union Pacific’s petition.

AAR reiterated the position it took last year when the agency held hearings to explore the extent of the common carrier obligation.

The rail trade group had urged STB to issue a policy statement that would allow carriers to impose liability sharing agreements, and maintained that the agency had the legal authority to take such an action. AAR also said there was no universal common carrier obligation.

To date, the regulatory agency has not issued any decisions or rulings arising from last year’s hearings, and Congress has not considered any legislation to revise the current situation.

“The financial soundness of the rail industry, as well as the public health and safety, are put at risk each time these materials are transported by rail,” AAR said.