Chemical Leaman Tank Lines, Inc. v. United States

• Decision Date: 19 December 1973
• Docket Number: Civ. A. No. 4419.
• Citation: 368 F. Supp. 925
• Parties: CHEMICAL LEAMAN TANK LINES, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, The Atchison, Topeka and Santa Fe Railway Company, et al., Intervening Plaintiffs.
• Court: U.S. District Court — District of Delaware

368 F. Supp. 925

CHEMICAL LEAMAN TANK LINES, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, The Atchison, Topeka and Santa Fe Railway Company, et al., Intervening Plaintiffs.

Civ. A. No. 4419.

United States District Court, D. Delaware.

December 19, 1973.

COPYRIGHT MATERIAL OMITTED

Daniel M. Kristol, of Killoran & Van Brunt, Wilmington, Del., Leonard A. Jaskiewicz, and Ronald N. Cobert, and Ira G. Megdal, of Grove, Jaskiewicz & Gilliam, Washington, D. C., for plaintiff.

Ralph F. Keil, U. S. Atty., Wilmington, Del., John H. D. Wigger, Dept. of Justice, Washington, D. C., for defendant United States.

Seymour Glanzer, Atty., I. C. C., Washington, D. C., for defendant Interstate Commerce Comm.

William Prickett, of Prickett, Ward, Burt & Sanders, Wilmington, Del., Joseph D. Feeney, Gen. Sol., Western Railroad Assn., Chicago, Ill., Robert B. Batchelder, Omaha, Neb., Richard M. Gleason, St. Paul, Minn., John J. Paylor, Baltimore, Md., for intervening Railroad plaintiffs.

Daniel M. Kristol, of Killoran & Van Brunt, Wilmington, Del., Eugene T. Liipfert, of Verner, Liipfert, Bernhard & McPherson, Washington, D. C., for intervening plaintiff National Tank Truck Carriers, Inc.

Daniel M. Kristol, of Killoran & Van Brunt, Wilmington, Del., Patrick H. Smyth, and Daniel C. Sullivan, of Singer & Lippman, Chicago, Ill., for intervening plaintiff Schneider Transport, Inc.

Before SEITZ, Chief Circuit Judge, LATCHUM, Chief District Judge, and STAPLETON, District Judge.

OPINION

STAPLETON, District Judge:

This suit challenges the validity of an order entered by the Interstate Commerce Commission in a rulemaking proceeding formally entitled Ex parte No. MC-85, Transportation of Waste Products for Re-use and Recycling (General Motor Carrier Licensing), 114 M.C.C. 92 (1971). We refer to this order as MC-85. In essence, MC-85 provides for the issuance of operating authority, pursuant to a Special Certificate of Public Convenience and Necessity, to any motor carrier desiring to transport "waste" commodities in furtherance of "a recognized pollution control program" upon a finding by the Commission that he is qualified to do so. Plaintiff and intervening plaintiffs (collectively "plaintiffs") are rail and motor carriers and their industry representatives who are now certified to transport products that are arguably "wastes" within the purview of MC-85. They mount a broadside attack on MC-85, alleging principally that it exceeds the statutory power of the Commission, is arbitrary and capricious, and is the product of a procedurally defective administrative proceeding. As required by 28 U.S.C. §§ 2284(1) and 2325, a three-judge court was convened to review the Commission's conduct. We hold that MC-85 constituted improper action by the I.C.C. and, accordingly, we remand it for further Commission proceedings.

I. THE FACTUAL BACKGROUND.

A. The Origin And Passage Of MC-85.

The Commission initiated MC-85 on December 21, 1970 for the purpose of inquiring whether it could contribute to the national recycling effort by "removing the regulatory hindrances" faced by motor carriers of waste commodities. 114 M.C.C. 103. Acting under the rulemaking authority purportedly granted it by the Motor Carrier and Administrative Procedure Acts, the Commission published notice of its proposed rule, together with policy exposition and accompanying data, in the Federal Register on January 15, 1971. The notice advised that oral hearings were not contemplated but that interested parties could participate by submitting written statements.

Plaintiffs and others petitioned the Commission to modify its projected rulemaking procedure. Chemical Leaman Tank Lines and the National Tank Truck Carriers individually sought oral hearing. The Western Railroad Traffic Association and numerous motor carriers — among them intervening-plaintiff, Schneider Transport — urged the Commission to publish a list of participating parties and to accept replies to those statements already submitted. Citing the limited procedural machinery appropriate to rulemaking as well as the pressure for expeditious Commission action, the ICC declined to make these adjustments. 114 M.C.C. 102.

The publication in the Federal Register evoked 177 responses to MC-85. Unqualified support for the proposed rule was expressed by 63 motor carriers and 76 other disparate interests, including labor unions, trade associations, ecological groups and manufacturers who either use or create such recyclable materials as glass, textiles, rubber and metal scraps. Various degrees of opposition were expressed by 26 parties, typically presently certificated carriers, both rail and motor.

On September 30, 1971, the Commission determined that, with slight modification, its proposed rule should be adopted and ordered it to become effective on December 15, 1971. However, the operation of the order was stayed by the filing of petitions for reconsideration by the railroads, the Institute of Scrap Iron and Steel, several motor carriers individually and two motor carrier associations. On February 16, 1972, the Commission declined to order reconsideration and designated March 20 as the effective date for MC-85. On March 13, 1972, the Western Railroads petitioned the Commission to stay MC-85 once again. The Commission rejected this petition as successive and therefore improper under its General Rules of Practice.

Shortly thereafter MC-85 took effect.

B. The Substance Of MC-85.

As the Commission itself concedes, MC-85 represents a sharp departure from the ICC's customary practice of establishing "public convenience and necessity" only in an adjudicatory framework. Under prior Commission procedure, individual applicants for carrier certification were required to demonstrate that their proposed operations would serve "the public convenience and necessity." In MC-85, the Commission has removed that issue from the realm of individual litigation. Since MC-85 contains a general, prospective finding of "public convenience and necessity" for all qualified carriers, individual applicants for certification need only demonstrate that they will transport an eligible waste product pursuant to a "recognized pollution control program," and that they comply with the usual Commission tests for carrier fitness. MC-85 requires that an application for a special certificate be accompanied by a copy of the carrier's tariff which must specify the territory or points to be served, the commodities to be transported and the rates to be charged. The authority granted by a special certificate is the authority to transport "between all points as indicated in appropriately filed tariffs in the transportation of `waste' products for recycling or reuse in furtherance of recognized pollution control programs." 114 M.C.C. 110.

The Commission's own language offers an accurate overall characterization of the certification scheme MC-85 envisions. MC-85, says the Commission, "stream(lines) our present motor carrier licensing procedures insofar as they relate to the for-hire transportation of waste materials for recycling or reuse by means of a general finding of public convenience and necessity, of which interested persons could avail themselves through a simplified filing." 114 M.C.C. 93.

The heart of MC-85, and a persistent focus for controversy among the parties herein, is its definition of two pivotal concepts: "waste product" and "recognized pollution control program." We reproduce the Commission's relevant discussion of these terms in full:

"Waste" products. — We are authorizing the transportation of "waste" products for recycling or reuse in furtherance of recognized pollution control programs. "Waste" products shall include any product which has been or would ordinarily be discarded as worthless, defective, or of no use. (See Webster's Seventh New Collegiate Dictionary, G. & C. Merriam Co., Springfield, Mass., 1967). The key word in this definition is "discarded." For if the product has not been or would not ordinarily be discarded, then it will not meet the criteria of being a "waste" product for the purposes of this proceeding. We are not proposing to provide additional transportation for shippers creating waste and scrap, and desiring to recycle or reuse it, in the ordinary course of their business. Rather, we desire to alleviate the problem of litter and potential litter by enabling and facilitating the expeditious and economical reclamation of discarded or to-be-discarded objects and restoring them to the manufacturing cycle. Examples of what would meet our criteria of waste and what would not follow: (a) a textile manufacturer has regular arrangements to transport defective materials and scraps to a bedding manufacturer for reuse. Such procedures are in the ordinary course of the shipper's business, the shipper has created the scrap, and the products have not been and would not ordinarily be discarded. Therefore, a motor carrier becoming a party to the Special Certificate of Public Convenience and Necessity granted herein would not be authorized to transport shipments of this nature; (b) if a private citizen has textile products (drapes) which he desires to discard, then the reclamation of commodities of this kind for the purposes of recycling or reuse are within the scope of the general authority being issued in this proceeding. These products would meet the test established in the commodity description that "waste" products must be intended to be reused or recycled in furtherance of recognized pollution control programs. 114 M.C.C. 107.

* * * * * *

A recognized pollution control program shall be any organized and regular campaign against litter. It is not necessary that the campaign be sponsored by Government or industry. The program should have goals, standards to achieve such goals, and personnel continuously engaged in the pursuit of these goals. Such personnel do not have to spend

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