Consolidated Rail Corp. v. I. C. C.
| Decision Date | 13 August 1982 |
| Docket Number | Nos. 80-1804,80-1843,s. 80-1804 |
| Citation | 685 F.2d 687 |
| Parties | CONSOLIDATED RAIL CORPORATION et al., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. BURLINGTON NORTHERN INC. et al., Petitioners, v. UNITED STATES of America and Interstate Commerce Commission, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petitions for Review of Orders of the Interstate Commerce commission.
Michael Boudin, Washington, D. C., with whom John J. McKetta, III, Austin, Tex., Harry N. Babcock, Cleveland, Ohio, Richard W. Kienle, Roanoke, Va., W. Donald Boe, Jr., Omaha, Neb., and Christopher A. Mills, Washington, D. C., were on the brief, for petitioners. J. Mark Iwry and Joseph D. Anthofer, Omaha, Neb., entered appearances for petitioners.
Henri F. Rush, Associate Gen. Counsel, I. C. C., Washington, D. C., and James H. Laskey, Atty., Dept. of Justice, Washington, D. C., with whom Robert S. Burk, Acting Gen. Counsel, and Ellen K. Schall, Deputy Associate Gen. Counsel, I. C. C., and Washington, D. C., John J. Powers, III, Atty., Dept. of Justice, Washington, D. C., were on the brief, for respondents.
Before WRIGHT and WILKEY, Circuit Judges, and CELEBREZZE, * Senior Circuit Judge.
Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
In these consolidated petitions for review eleven of the nation's Eastern and Western railroads 1 seek to set aside an order of the Interstate Commerce Commission (ICC or Commission) determining that they are liable to the United States Departments of Energy and Defense for unreasonable overcharges in connection with shipments of spent nuclear fuel from ports on the east and west coasts to the government's reprocessing facility in Scoville, Idaho. U. S. Dep't of Energy v. B & O R. Co., 364 ICC 951 (1981). The case presents several difficult issues of law, including a question of first impression regarding the ICC's jurisdiction to order reparations of charges paid by the government under "Section 22" quotations, see 49 U.S.C. § 10721(b) (Supp. III 1979) ( Pub.L.No.96-454 § 10(b), 94 Stat. 2022 (1980)). Nevertheless, we find that this court is without jurisdiction to review the ICC's order on a petition for review under 28 U.S.C. § 2342(5) (1976), and we therefore dismiss the petitions for review without reaching the merits of the railroads' claims. ICC orders which concern nothing more than payment of reparations to a shipper may only be reviewed on a petition for review filed in a United States District Court or in connection with an action to enforce the award brought by the shipper in either a United States District Court or a state court of competent jurisdiction. See 49 U.S.C. § 11705(d) (Supp. III 1979); 28 U.S.C. § 1336(a) (1976).
Our disposition renders unnecessary an extended discussion of the factual and legal background of the railroads' petitions. Because our decision rests, however, on the nature of the proceeding before the ICC and the posture in which the railroads have raised their claims, some explanation of the claims and the proceedings before the ICC may be helpful.
The Departments of Energy and Defense use a facility in Scoville, Idaho for extracting unused fuel from the fuel rods used in the reactors that power nuclear submarines. Spent fuel rods must be shipped from ports on the east and west seacoasts to the Scoville facility. During the period at issue in this case all of those shipments were made by rail, using specially designed casks mounted on special flatcars. The United States government owns both the casks and the flatcars, and they represent an investment of approximately $175 million. 2 Each cask weighs approximately 300,000 pounds and holds approximately 15,000 pounds of spent fuel. 3 When the spent fuel rods have been unloaded at Scoville, the casks themselves must be returned by rail to the coastal ports. At issue in this case are petitioners' charges for 31 shipments of spent fuel to Scoville and 39 shipments from Scoville of empty casks, all of which occurred between November 1975 and November 1978. 4
Spent fuel rods are, of course, highly radioactive, and the interiors of the special casks used to ship the fuel remain radioactive even when the casks are empty. Although these shipments were exempt from Department of Transportation/Nuclear Regulatory Commission regulations regarding transportation of radioactive materials, the casks used are those required by the DOT/NRC safety regulations. In addition, the government required that flatcars bearing the casks must not be left rolling free in switching yards, must not move at speeds in excess of 35 miles per hour, and must be placed at the rear of any train, adjacent to the caboose. 5
Most of the shipments at issue in this case-including all shipments handled by the Eastern railroads-were made under so-called Section 22 quotations rather than under the class rates for radioactive materials published in the Uniform Freight Classification. Unlike class rates-which are established pursuant to tariffs filed by the railroads, are available to all shippers, and which the ICC may suspend or investigate (subject to applicable jurisdictional qualifications)-Section 22 quotations are available only to the government of the United States (or state and local governments), and they are not subject to the ICC's normal procedures for investigating and reviewing rates. 6 They take their name from former Section 22 of the Interstate Commerce Act, the current version of which states: "A common carrier providing transportation or service subject to the jurisdiction of the Commission * * * may transport property for the United States Government, a State, or municipal government without charge or at reduced rates." 49 U.S.C. § 10721(b)(1) (Supp. III 1979). Section 22 quotations must be filed with the ICC and with the government agency acting as shipper, see id. § 10721(b)(2), but the extent of ICC jurisdiction over them is otherwise unclear.
During the period at issue in this case none of the Eastern railroads offered common carrier service for radioactive materials. They agreed to carry such materials only for the government under standing Section 22 quotations. Most of the Western railroads had tariffs for radioactive materials on file with the Commission which were reflected in the Uniform Freight Classification class rates, but they also offered Section 22 quotations to the government. 7
In July 1974 the Board of Directors of the Association of American Railroads recommended, "Shipments of casks containing irradiated spent fuel cores should move in special trains containing no other freight * * *." 8 Thereafter, both the Eastern and Western railroads-acting in concert, through their rate conferences-amended their Section 22 quotations to require that all shipments of the special casks move in special trains, whether or not the casks were loaded with spent fuel. In March 1976 the Western railroads amended their tariffs as well to require special trains for shipments of spent fuel, but not of empty casks. Shipping under the Section 22 rates and class rates containing special train requirements, the government paid special train surcharges of $15 to $20 per mile (with a minimum charge for 110 miles by each railroad participating in a shipment) on each of the shipments at issue in this case.
Four decisions by the ICC in 1977 and 1978 forced the railroads to end their practice of refusing to carry radioactive materials except in special trains. In Radioactive Materials, Missouri-Kansas-Texas R. Co., 357 ICC 458 (1977), and U. S. Energy Research & Development Administration v. Akron, Canton & Youngstown R. Co., 359 ICC 639 (1978), aff'd, 611 F.2d 1162 (6th Cir. 1979), cert. denied, 449 U.S. 830, 101 S.Ct. 97, 66 L.Ed.2d 34 (1980), it was settled that the railroads had a duty as common carriers to file tariffs covering radioactive materials. More importantly, in the Special Train Service decisions, Radioactive Materials, Special Train Service, 359 ICC 70 (1978), and Trainload Rates on Radioactive Materials, Eastern Railroads, 362 ICC 756 (1980), aff'd sub nom. Consolidated Rail Corp. v. ICC, 646 F.2d 642 (D.C.Cir.1981), cert. denied, 455 U.S. 1047, 102 S.Ct. 587, 70 L.Ed.2d 488 (1981), the ICC and this court held that the railroads could not require special trains as a safety measure in their tariffs for radioactive materials because the Department of Transportation and the Nuclear Regulatory Commission had determined that the additional safety provided by special trains was too costly and superfluous in light of other safety measures in their regulations. In affirming the ICC on this point we stated: "(T)he Commission acted properly in finding on this record that STS (special train service) was unnecessary as a safety measure, and that the tariffs based on it were therefore unreasonable." 646 F.2d at 656. As a result of these decisions the railroads no longer require special trains for shipping spent nuclear fuel, either when they carry it under class rates for private shippers or, apparently, when they carry it for the government under Section 22 quotations.
In November 1978, shortly after the ICC issued its first Special Train Service ruling, the Department of Energy initiated this proceeding by filing a complaint with the Commission seeking reparations for all the special train service surcharges it had been forced to pay on shipments of spent fuel and empty casks within the three-year statute of limitations. In relevant part the government's complaint asked the ICC to:
Order that the special train charges assessed against, demanded or collected from and paid by complainants, or any other agency or governmental office on their behalf, * * * are and were unlawful, and...
To continue reading
Request your trial
-
Pullman-Standard, a Div. of Pullman Inc. v. I.C.C.
...see fn. 2, supra. The courts' jurisdictions under these statutes are mutually exclusive, 7 see Consolidated Rail Corporation v. ICC, 685 F.2d 687, 692 fn. 12 (D.C.Cir.1982) (and cases cited therein). This bifurcated appeal system is not a recent development, although prior to 1975 matters r......
-
City of New Orleans By and Through Public Belt R.R. Com'n of City of New Orleans v. Southern Scrap Material Co., Ltd.
...district courts. See Pullman-Standard v. ICC, 705 F.2d 875, at ----, No. 82-1051 (7th Cir. March 11, 1983); Consolidated Rail Corp. v. ICC, 685 F.2d 687, 692-93 n. 12 (D.C.Cir.1982); Genstar Chemical Ltd. v. ICC, 665 F.2d 1304, 1307 (D.C.Cir.1981), cert. denied, 456 U.S. 905, 102 S.Ct. 1750......
-
Humko Products Div. of Kraft, Inc. v. I.C.C.
...jurisdictional question like the one presently before us, "we will adopt the more literal approach suggested in Consolidated Rail Corp. v. I.C.C., [685 F.2d 687 (D.C.Cir.1982) ]: The nature of the ICC's order, not the difficulty, novelty, or general importance of the legal questions raised ......
-
Park County Resource Council v. US DEPT. OF AGR.
... ... ' motion for preliminary injunction, which with the agreement of counsel, the Court consolidated into a full hearing on the merits. Fed.R.Civ.P. 65(a)(2). At the conclusion of the evidence and ... is guided by the language of the United States Supreme Court in Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978): ... NEPA does set forth ... ...