|SURFACE TRANSPORTATION BOARD DECISION DOCUMENT|
|TOTAL PETROCHEMICALS & REFINING USA, INC. V. CSX TRANSPORTATION, INC.|
|DECISION DENIED TOTAL PETROCHEMICALS USA, INC.'S (TPI) APPEAL OF A DECISION SERVED ON NOVEMBER 24, 2010, WHICH DENIED TPI'S MOTION TO COMPEL DISCOVERY FROM CSX TRANSPORTATION, INC.|
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|Full Text of Decision|
41293 SERVICE DATE – DECEMBER 23, 2010
SURFACE TRANSPORTATION BOARD
Docket No. NOR 42121
TOTAL PETROCHEMICALS USA, INC.
CSX TRANSPORTATION, INC.; Carolina Piedmont Division; Georgia Woodlands Railroad, LLC; Madison Railroad; Mohawk, Adirondack & Northern Railroad Corp.; Nashville and Eastern Railroad Corp.; New Hope & Ivyland Railroad; Pioneer Valley Railroad; R.J. Corman Railroad Company (Memphis); Seminole Gulf Railway L.P.; Sequatchie Valley Railroad Company; and South Branch Valley Railroad
Digest: This decision denies the appeal filed by Total Petrochemicals USA, Inc., of the decision of the Director of the Office of Proceedings, served November 24, 2010. The November 24 decision denied the shipper’s first motion to compel discovery.
Decided: December 22, 2010
On November 24, 2010, the Board served a decision of the Director of the Office of Proceedings in this proceeding denying a motion to compel discovery filed by Total Petrochemicals USA, Inc. (TPI). This decision denies TPI’s appeal of that decision.
On May 3,
2010, TPI filed a complaint challenging the reasonableness of rates established
by CSX Transportation, Inc. (CSXT) for the transportation of polypropylene,
polystyrene, polyethylene, styrene, and base chemicals between various origin
and destination pairs, located primarily in the Midwestern and
On November 4, 2010, TPI filed a motion to compel discovery from CSXT of documents pertaining to the carrier’s internal management costing data. In particular, TPI’s Requests for Production of Documents Nos. 165 and 166 sought from CSXT: (1) all documents, studies, or analyses pertaining to the profitability of the revenue generated by the transportation rates charged to TPI for the issue movements; and (2) all documents relating to any methodology, including computer programs, databases, and documentation used by CSXT for internal management purposes to determine its costs of handling the issue movements, as well as any adjustments to any methodology to account for special studies. On November 15, 2010, CSXT replied in opposition to the motion to compel discovery.
On November 24, 2010, the Board served a decision of the Director of the Office of Proceedings denying the motion to compel discovery because the discovery requests ran “contrary to well-established Board precedent and have not been shown to be justified.” Total Petrochemicals USA, Inc. v. CSX Transp., Inc., NOR 42121, slip op. at 2 (STB served Nov. 24, 2010) (November 24 Decision). Specifically, the November 24 Decision explained that the Board has consistently denied motions to compel internal costing information because the Board uses its Uniform Rail Costing System (URCS) to determine costs in rate-reasonableness cases. TPI argued that FMC Wyoming Corp. v. Union Pacific Railroad, 4 S.T.B. 699 (2000) stands for the proposition that a railroad that operates at a large cost advantage and has a dominant market share is not effectively constrained by competition, and, therefore, internal costing data would be relevant to an argument on that issue. However, the November 24 Decision explained, among other things, that TPI had not cited to any part of FMC to demonstrate that the Board relied on internal costing data, as opposed to URCS data.
On November 30, 2010, TPI filed an appeal of the November 24 Decision pursuant to 49 C.F.R. §§ 1114.31(a)(4) and 1115.9, arguing that it was seeking internal costing data because, among other things, CSXT has alleged in a separate filing that transload transportation options are an effective competitive constraint on its rail rates for 78 of the traffic lanes in this proceeding. TPI argues that the question of whether a transload alternative is an effective constraint on CSXT’s rates, or merely an “outer limit” under which CSXT may still exercise considerable market power, is one in which URCS costs cannot be used; rather, CSXT’s internal costs must be used. TPI argues that the qualitative market dominance test asks whether there is effective competition in the “real world,” and therefore it needs the real world costs used by the railroads to decide if the shipper’s alternative is a true competitive threat.
On December 3, 2010, CSXT filed its reply arguing that TPI did not meet the standard for granting an interlocutory appeal. Further, CSXT argues that TPI provided no coherent justification to overturn the Board’s precedent that railroad internal costing systems are not relevant to qualitative market dominance, nor did it provide any reason to deviate from Board policy that variable costs in rate reasonableness proceedings are to be determined by URCS. CSXT also explained that TPI has misinterpreted the significance of an internal CSXT document that TPI attached to the motion to compel.
For the reasons set forth below, the Board will deny TPI’s interlocutory appeal of the November 24 Decision.
DISCUSSION AND CONCLUSIONS
Interlocutory appeals, including appeals of a Director Order ruling on a motion to compel in a SAC case, are governed by 49 C.F.R. § 1115.9. The Board applies a highly deferential standard of review to such appeals. Wisc. Power & Light Co. v. Union Pac. R.R., NOR 42051, slip op. at 2 (STB served June 21, 2000). Under § 1115.9(a), a decision may be appealed “only if:
(1) The ruling denies or terminates any person’s participation;
(2) The ruling grants a request for the inspection of documents not ordinarily available for public inspection;
(3) The ruling overrules an objection based on privilege, the result of which ruling is to require the presentation of testimony or documents; or
(4) The ruling may result in substantial irreparable harm, substantial detriment to the public interest, or undue prejudice to a party.”
TPI has failed to allege any of these four bases for appeal of the November 24 Decision, much less explain how the November 24 Decision meets this highly deferential standard. First, the November 24 Decision did not terminate any particular individual’s participation, grant inspection of any documents not ordinarily available for public inspection, or overrule an objection based on privilege. Moreover, TPI’s appeal fails to address how denying a motion to compel production of CSXT’s internal costing data causes either substantial irreparable harm, substantial detriment to the public interest, or undue prejudice to TPI. There is no irreparable harm or undue prejudice given that TPI may use URCS, just as the Board does, for any costing determinations in this proceeding. See, e.g., Kan. City Power & Light, slip op. at 2 (“costs in Board proceedings are to be determined using [URCS]”); Tex. Mun. Power, slip op. at 3 n.8 (“[URCS] is the exclusive methodology for developing costs in a rail rate complaint proceeding”). TPI will still be able to argue about cost differentials in its market dominance discussion; but it will need to do so using URCS. Furthermore, it has not demonstrated that the public interest would be harmed by not compelling the production of CSXT’s internal costing information, especially considering that the November 24 Decision followed longstanding Board policy and precedent.
Internal costing models have not been shown to be relevant in rate cases. The November 24 Decision correctly explained that the Board has consistently ruled against motions to compel internal costing data because, for regulatory purposes, including rate reasonableness cases, costs are determined by URCS. November 24 Decision, slip op. at 3. TPI asserts that it needs CSXT’s internal costing data to “prove that transload alternatives identified by CSXT are not an effective competitive constraint upon CSXT’s rates.” We disagree. It is true that the question of whether a transload alternative is an effective competitive constraint on a railroad’s rates lies at the very heart of a qualitative market dominance determination. But to the extent that CSXT’s variable costs are relevant to that inquiry, the Board would use URCS for that analysis. See Adoption of the Unif. R.R. Costing Sys. as a Gen. Purpose Costing Sys. for All Regulatory Costing Purposes, 5 I.C.C. 2d 894, 894 n.2 (1989) (adopting URCS as our general purpose costing model for all regulatory costing purposes, including, specifically, maximum rate cases and the jurisdictional threshold determination). Accordingly, we will deny TPI’s appeal of the November 24 Decision.
This action will not significantly affect either the quality of the human environment or the conservation of energy resources.
It is ordered:
1. TPI’s interlocutory appeal of the November 24, 2010 decision in this proceeding is denied.
2. This decision is effective on its date of service.
By the Board, Chairman Elliott, Vice Chairman Mulvey, and Commissioner Nottingham.
 The digest constitutes no part of the decision of the Board but has been prepared for the convenience of the reader. It may not be cited to or relied upon as precedent. Policy Statement on Plain Language Digests in Decisions, EP 696 (STB served Sept. 2, 2010).
 November 24 Decision, slip op. at 3 n.3 (citing Kan. City Power & Light Co. v. Union Pac. R.R., NOR 42095, slip op. at 2, (STB served Feb. 15, 2006); Entergy Ark., Inc. v. Union Pac. R.R., NOR 42104, slip op. at 4 (STB served May 7, 2008); Tex. Mun. Power Agency v. Burlington N. & Santa Fe Ry., NOR 42056, slip op. at 3 n.8 (STB served Feb. 9, 2001); Minn. Power, Inc. v. Duluth, Missabe & Iron Range Ry., 4 S.T.B. 64, 73 (1999); Potomac Elec. Power Co. v. CSX Transp., Inc., 2 S.T.B. 290, 292-94 (1997)).