United States District Court, D. Minnesota
THE CHLORINE INSTITUTE, INC.; THE AMERICAN CHEMISTRY COUNCIL; THE FERTILIZER INSTITUTE; ERCO WORLDWIDE; and PVS CHEMICALS, Plaintiffs,
SOO LINE RAILROAD, d/b/a Canadian Pacific Railway Company, Defendant.
Paul M. Donovan, LAROE, WINN, MOERMAN & DONOVAN; Stephen P. Laitinen and Jennifer L. Young, LARSON KING, LLP, for plaintiffs.
Timothy R. Thornton, Kevin M. Decker, and Jonathan P. Schmidt, BRIGGS AND MORGAN, P.A., for defendant.
PATRICK J. SCHILTZ, District Judge.
Defendant Canadian Pacific Railway Company ("CP") recently amended its Tariff No. 8. Pursuant to that amendment, CP now requires that any tank car that contains "toxic inhalation hazard" ("TIH") commodities and that is tendered to CP for transport must meet certain manufacturing standards. In particular, CP now requires such tank cars to be constructed of normalized steel, which is steel that has been heat treated to better resist fracturing in the event of a crash or derailment. The amendment to Tariff No. 8 took effect on April 14, 2014.
Plaintiffs ERCO Worldwide and PVS Chemicals are businesses that manufacture and distribute TIH commodities, and plaintiffs the Chlorine Institute, Inc., the American Chemistry Council, and the Fertilizer Institute are trade associations that represent such businesses. Plaintiffs filed this action on April 10, 2014, challenging CP's requirement that any tank car containing TIH commodities be constructed of normalized steel.
This matter is before the Court on plaintiffs' motion for a temporary restraining order and preliminary injunction. For the reasons stated below, the Court denies plaintiffs' motion and dismisses this action without prejudice under the doctrine of primary jurisdiction.
A. The HMTA and Common-Carrier Obligations
Plaintiffs bring two substantive claims: a claim under the Hazardous Materials Transportation Act ("HMTA"), 49 U.S.C. §§ 5101 et seq., and a claim under 49 U.S.C. § 11101, which codifies the common-carrier obligations of rail carriers.
Under the HMTA, the United States Department of Transportation ("DOT") has the authority to designate materials as hazardous and regulate the shipment of such materials in intrastate, interstate, and foreign commerce. 49 U.S.C. § 5103(a), (b)(1); 49 U.S.C. § 5102(11). The DOT has delegated this authority to the Pipeline and Hazardous Materials Safety Administration ("PHMSA"), which is part of the DOT. See 49 U.S.C. § 108(a). The PHMSA has promulgated regulations requiring that tank cars used to ship hazardous materials meet certain manufacturing and other specifications. 49 C.F.R. § 173.31(a)(1).
Under the common-carrier obligation codified in 49 U.S.C. § 11101, a "rail carrier providing transportation or service subject to the jurisdiction of the [Surface Transportation] Board under this part shall provide the transportation or service on reasonable request." Id. § 11101(a); 49 U.S.C. § 10102(1) ("Board" means the Surface Transportation Board). Rail carriers are also required to "furnish safe and adequate car service and establish, observe, and enforce reasonable rules and practices on car service." 49 U.S.C. § 11121(a)(1). In addition, rail carriers must establish reasonable rates, rules, and practices relating to their transportation services. 49 U.S.C. § 10702.
B. The DOT's Consideration of Normalized Steel Cars
In April 2008, the DOT issued a Notice of Proposed Rulemaking "to improve the crashworthiness protection of railroad tank cars designed to transport poison inhalation hazard materials." Hazardous Materials: Improving the Safety of Railroad Tank Car Transportation of Hazardous Materials, 73 Fed. Reg. 17818, 17818 (proposed Apr. 1, 2008). ("Poison inhalation hazard materials" is another name for TIH materials.) The DOT proposed stricter performance specifications for new tank cars. Id. In the meantime, the DOT also proposed an accelerated phase-out of non-normalized-steel cars, all of which were manufactured before 1989. Id. at 17822; see Reiner Aff. at 6-7 (noting that, since 1989, industry standards have required that tank cars used to transport TIH products be constructed of normalized steel). As the DOT observed, these pre-1989 cars "are reaching the upper limits of their useful life." 73 Fed. Reg. at 17822.
The DOT proposed to prohibit the use of non-normalized-steel cars beginning five years after the effective date of the final rule. Id. After receiving public comments, however, the DOT declined to adopt a mandatory phase-out of non-normalized-steel cars. Hazardous Materials: Improving the Safety of Railroad Tank Car Transportation of Hazardous Materials, 74 Fed. Reg. 1770, 1777-78 (Jan. 13, 2009). Instead, the DOT required that tank-car owners prioritize the removal of non-normalized-steel cars when removing cars ...