TSA and DOT Replies to UP STB Petition – 04-10-09

Ten days ago the comment period ended on the UP petition to the Surface Transportation Board (STB) to avoid quoting tariff rates for the transportation of chlorine over long distances and through high-threat urban areas (HTUA) when adequate sources were available from closer sources. On the last day of that comment period both TSA and DOT, at the request of STB, submitted their comments on the UP Petition. TSA Opposes UP Petition TSA starts out by observing that the “the issues involved in the petition transcend common carrier rates; they involve issues of safety and security” (pg 1). They then proceed to explain why the safety and security procedures put into place by TSA and DOT have the safety and security issues covered. TSA notes that the two agencies have “analyzed the risks to safety and security of transporting chlorine and other hazardous materials by rail and established comprehensive regulatory programs to address these risks” (pg 3). They address the safety and security issue by stating that:

“When rail shipments conform to the TSA and DOT regulations, the risks of transporting chlorine by rail are appropriately mitigated and such movements can take place without posing unnecessary safety and security risks.”

TSA also takes exception to the claim by UP that they have urged rail carriers to limit the shipping miles and HTUA exposure to TIH shipments. They note that their regulatory efforts to “enhance rail transportation security were not intended to inhibit transportation” (pg 4). They emphatically state (pg 6) that: “TSA has not urged, and its rules provide no basis for, freight railroad carriers to discontinue the transportation of such shipments.” They conclude (pg 6) that:

“Granting the petition will not enhance transportation security and safety and may have adverse unintended consequences. Future rail security and safety enhancements should be accomplished through DHS and DOT rule makings.”

DOT Opposes Petition DOT simplifies the UP petition to a single issue. They note that “the railroad is effectively seeking to avoid its common carrier obligation to quote rates to ship the material [chlorine] to certain locations (pg 2). They dismiss the safety issue by stating (pg 2) that: “Compliance with existing regulatory safeguards would appropriately mitigate the relevant risks.” The DOT response reminds STB that “only Congress, by the passage of legislation addressing the risks associated with the rail movement of PIH materials, can modify a common carrier's obligation to transport such materials” (pg 4). They then note (pg 4) that: “Congress has rejected railroads' repeated requests for the enactment of legislation that would either eliminate the railroads' common carrier obligation to transport PIH materials or cap the railroads' liability for transportation incidents involving the movement of PIH materials.” DOT concludes (pg 15) that:

“Accordingly, there is no reason for the STB to entertain pleas to avoid the basic common carrier obligation or the application of the rules designed to ensure the safe and secure fulfillment of that obligation. DOT therefore recommends that STB dismiss the UP's petition.”

My Comments on the Comments With both TSA and DOT unequivocally recommending against the approval of the UP petition, there does not seem to be much leeway for the STB to do any thing but requiring UP to provide the requested rates. To me the issue was simple, the law required UP to provide the rate quote and the STB does not have the authority to change or void that law. Only the courts can void laws and only Congress can change them. It is interesting to note that both agencies provided railroads with the potential arguments for future attacks on the requirement to transport TIH chemicals. The TSA opening is just a tiny crack that may be shut in the near future. The DOT opening, on the other hand knocked down an entire wall and installed a new door. TSA noted (pg 3) that: “In discharging its responsibilities as the lead federal agency for transportation security, TSA is developing other rulemakings to make further enhancements to rail transportation security.” This seems to contradict their earlier claim that they had established “comprehensive regulatory programs”. It’s a small opening, but an opening none the less. DOT establishes a whole new potential argument by stating (pgs 14-15) that:

“Consequently, as both a legal and a practical matter, the task of initial route selection is best left to the railroads, based on all the factors set out in the Routing Rule, and any potential modifications to a carrier's routing decisions [emphasis added] should only be made according to the regulations implementing Congressional judgment.”

This would seem to allow a railroad, in a limited number of instances, to conclude that there is no safe route available for the shipment of TIH chemicals. The argument would require extensive preparation and the manipulation of data supporting the 27 criteria outlined in the PHMSA rail routing rule. To avoid charges of collusion, the railroad in question would have to control all potential routes through the high-risk areas. It does not appear that the Federal Railroad Administration could exercise their review authority to require a railroad to use a route that the railroad deemed to be unsafe or un-secure since their authority is limited to requiring the use of an alternate route. Final Note: Today is the day that UP is supposed to file their response to all of the replies and comments submitted to the STB. While there have been a wide variety of interesting and apparently valid arguments submitted by a number of commentors, to my mind the only two that count are the DOT and TSA comments as they both undercut the basic arguments made by UP. I don’t see any way that STB can determine that these two agencies are wrong in their areas of expertise. It will be interesting to see how UP deals with this. I do not think that there is any way that UP can counteract the DOT and TSA arguments. They would also have a hard time maintaining their claim that there are other adequate sources of chlorine in face of the responses from the Chlorine Institute and various chlorine suppliers. I think that the smartest thing that UP could do in this instance would be to formally withdraw their petition and prevent the STB from ruling. This would leave the way open for potential future challenges.