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Groups sue railroad over chlorine cargo

(The following story by Judy Fahys appeared on The Salt Lake Tribune website on July 3, 2009.)

SALT LAKE CITY, Utah — Should the Union Pacific Railroad be responsible for the safety of chlorine tankers it's hauling around the nation? Or, should the shippers, like US Magnesium, be liable?

That's the heart of the question put to a Utah federal court this week in the latest round of the fight between the chlorine industry and the railroad.

The Chlorine Institute and the American Chemistry Council, trade groups, filed suit Monday in the U.S. District Court for Utah to block a new provision in Union Pacific's rate card that would shift liability to the shippers, even if an accident occurs because of the railroad's mistake.

Fred Millar, a Virginia-based rail safety activist, calls the ongoing fight "outrageous." More than 100,000 tankers of chlorine gas and ammonia travel the rails each year, he said, putting millions of Americans within reach of potentially deadly accident plumes.

"The railroads," he said, "are playing chicken with the American public." And they should be required to reroute hazardous shipments like these around populated areas.

The fight between Union Pacific and the chlorine industry emerged earlier this year. The railroad framed it as a safety issue, telling the federal Surface Transportation Board in Washington, D.C., that it should be released from its duty as a "common carrier" to haul chlorine from US Magnesium's processing plant in Rowley, on the western shore of the Great Salt Lake, to customers throughout the United
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States.

On June 11, the board ruled against the railroad. In the meantime, Union Pacific changed its "tariff," or public rate list of costs and services, to include a provision that makes the shipper responsible for losses, damages and other liabilities even when the railroad is at fault.

That's what prompted the chlorine industry's suit against the nation's largest rail freight company, said attorney Paul M. Donovan. Chlorine shippers don't have other options for transporting their products.

"Railroads have unequal bargaining power, " he said. "You take [the terms of the tariff] or you leave it. And, if you don't take it, you don't get your goods moved around."

Tom Lange of Union Pacific said "Union Pacific is still evaluating the material and cannot comment on the lawsuit at this time."

US Magnesium extracts magnesium chloride from the Great Salt Lake and sells the separated chlorine waste. According to the U.S. Environmental Protection Agency's Toxics Release Inventory, the company recycled about 252 million pounds of chlorine in 2007, enough to fill about 1,400, 90-ton tankers.

The Salt Lake City-based company did not respond to a call seeking comment for this article. In an earlier filing, US Magnesium attorneys noted that halting chlorine shipments would shut down the Tooele County plant and force the closure of the last remaining magnesium producer in the United States.

Millar hopes the flap will raise awareness about what he sees as a dire need to deal with safety throughout the rail system.

"It's outrageous," he said. "The risk [to the public] is not being taken into account."

Monday, July 6, 2009

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