Washington—The Fertilizer Institute (TFI) and other organizations representing rail shippers filed the third and final round of comments with the Surface Transportation Board (STB) last week, asking the board to determine the reasonableness of tariff provisions that require shippers of toxic by inhalation (TIH) materials, including anhydrous ammonia, to indemnify the Union Pacific (UP) Railroad for all liabilities except to the extent caused by UP’s own negligence. The filing results from a Dec.12, 2011, decision by the STB to initiate a public proceeding regarding tariff provisions that apply to a much broader range of products than just TIH materials. According to TFI, the tariff would make TFI members and other shippers responsible for environmental liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), for which UP otherwise would be responsible. Other groups submitting comments include the American Chemistry Council, the Chlorine Institute, and the National Industrial Transportation League. Should the STB rule that UP’s indemnity tariff is reasonable, the industry groups claim that TIH and non-TIH shippers could face similar tariffs from other railroads, effectively making the shippers insurers of the railroads against all liabilities caused by third parties, including environmental clean-up charges and Acts of God, even when there is no release of a TIH material. According to a statement by TFI, a reasonableness determination by the STB would also narrow the common carrier obligation of the railroads. “TFI and other petitioners have reminded the STB that the common carrier obligation of the railroads comes with corresponding benefits, such as protection from the application of normal bankruptcy and antitrust laws,” TFI said.
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