Replies to UP STB Petition – 03-27-09

Last week there were two additional replies to the Union Pacific petition before the Surface Transportation Board (STB) to allow UP to refuse to provide tariff rate quotes for chlorine transport routes. As noted in my last blog one reply was from Olin Corp (a copy of the reply is now posted). The latest reply came from two unions; The Brotherhood of Railroad Signalmen (BRS) and the Brotherhood of Maintenance of Way Employes [sic] Division (BMWED/IBT). Both replies weighed in against the UP petition. Olin Corp Reply Olin Corp is a major chlorine producer/shipper. Olin asserts that the reason for the UP petition is to “gain an unfair advantage in a commercial dispute between UP and USM [US Magnesium]”. They recommend that the STB deny the UP petition and order UP to provide the requested rates to USM. They also note that the issue of TIH shipments and common carrier obligations is already an issue before the STB (Ex Parte No 677) and should be decided in that venue not this petition. Finally, they note that the safety and security of TIH shipments through High Threat Urban Areas (HTUA) are a matter for Federal Railroad Administration (FRA) and TSA to regulate, not STB. BRS BMWED/IBT Reply These two unions represent railroad employees that perform ground side installation and maintenance for the railroads. They assert that the risk and safety aspects of the UP petition should be addressed through the FRA rulemaking process mandated by last year’s Rail Safety Improvement Act (RSIA). They also raise the issue that allowing Class 1 railroads to stop carrying TIH chemicals would allow them to avoid installing Positive Train Control Systems on the lines which would have been required by RSIA. Finally, they note that allowing Class 1 railroads to arbitrarily stop carrying TIH would not stop the shipment of these chemicals. It would merely shift those shipments to higher risk modes of transportation, Class 2 and Class 3 railroads and trucks. My Comments on Replies Since Olin is a major chlorine producer/shipper it is not unexpected that they would side with US Magnesium in this dispute. The level of vehemence in their filing (carefully couched in legal terms of course) is somewhat surprising for someone that is not an actual party to the dispute. Equally surprising is their reference back to Ex Parte No 677 as the potential resolution to the TIH and Common Carrier Obligation issue. It seemed clear that when STB held these hearings last year that there was no real expectation that they would take any concrete actions. If they had tried to impose an exception it would have certainly ended up in the courts on the same day. The only way a substantive change could be made in this issue would be by Congress changing the law and that is a political hot potato that no one is willing to touch. It was surprising to see these two particular unions filing a reply in this case. I had a hard time seeing their interest in the issue since their people were not directly involved in handling these shipments. But this is not a court case, so there is no requirement for having ‘standing’ in the dispute to file a reply; the STB did after all request public comments. Reading through their reply it became clear that they do have a stake in the decision. When you get to the part about the PTC systems, it is there members that would be responsible for installing and maintaining those systems. Given the long stretches of ‘dark track’ out west (particularly) if UP could avoid shipping chlorine (and other TIH chemicals) on these tracks they could avoid installing PTC systems along those lines. Tomorrow is the current deadline for comments on the petition. Of course there is a request for an extension of the time limit before the STB. Since that came from the TSA, whom the STB requested provide input, it is likely that it will be granted. And we still have to hear from the FRA, the other agency invited to file comments. Then there will be a second deadline to allow UP to counter reply. We still have a ways for this to go before STB finally makes a decision on this ‘emergency’ case.