Lemmon Transport Company v. United States

• Decision Date: 13 May 1975
• Docket Number: Civ. A. No. 73-C-183-A.
• Citation: 393 F. Supp. 838
• Court: U.S. District Court — Western District of Virginia
• Parties: LEMMON TRANSPORT COMPANY, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, and Chemical Leaman Tank Lines, Inc., Intervening Defendant.

393 F. Supp. 838

LEMMON TRANSPORT COMPANY, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants and Chemical Leaman Tank Lines, Inc., Intervening Defendant.

Civ. A. No. 73-C-183-A.

United States District Court, W. D. Virginia.

May 13, 1975.

COPYRIGHT MATERIAL OMITTED

Wilmer B. Hill, Washington, D. C., Charles L. Harrington, Marion, Va., for plaintiff.

Leigh B. Hanes, Jr., U. S. Atty., Roanoke, Va., for United States.

Fritz R. Kahn, General Counsel, Hugh W. Cuthbertson, Washington, D. C., for I.C.C.

Leonard A. Jaskiewicz, Steven L. Weiman, Grove, Jaskiewicz & Gilliam, Washington, D. C., Raymond R. Robrecht, Salem, Va., for intervening defendant Chemical Leaman Tank Lines, Inc.

Before WIDENER, Circuit Judge, TURK, Chief District Judge, and DALTON, District Judge.

OPINION

WIDENER, Circuit Judge:

This case arose due to the closing of Olin Corporation (Olin) facilities at Saltville, Virginia, and the subsequent transfer of some of Olin's operations to other areas, resulting in transportation pattern changes for their chemical goods. Lemmon Transport Company, Inc. (Lemmon) seeks to set aside Interstate Commerce Commission (ICC) orders denying its request for a certificate of public convenience and necessity authorizing it to transport certain chemicals from Olin's new location at Charleston, Tennessee, to various southern states. One protestant, Chemical Leaman Tank Lines, Inc. (Chemical Leaman) intervened as defendant in this action. Jurisdiction is under 28 U.S.C. §§ 1336, 2325.¹

Lemmon claims that the ICC made inadequate findings to support denial of its petition, and that it failed to give weight to certain factual matters which, if considered, would show there is no substantial evidence to support the order rendered. Because we find no ground to upset the ICC's decision and orders in this case, relief is denied.

Lemmon filed its application with the ICC on February 28, 1972, under the Interstate Commerce Act, 49 U.S.C. §§ 306(a) and 307(a), to operate as a common carrier, in interstate or foreign commerce, transporting chemicals in bulk (with two minor restrictions) from Charleston, Tennessee to points in nine surrounding states. The ICC granted temporary authority for the transportation of caustic soda and chlorine from Charleston to points in these states, and the temporary authority was extended until a final determination of the permanent authority application. The ICC handled Lemmon's application under its modified (no oral hearing) procedure, and both Lemmon and the protestant, Chemical Leaman, filed affidavits in support of their respective positions. The final order denying Lemmon's application was entered on November 14, 1973.

The record shows that Lemmon had rather limited authority to transport chemicals in bulk when the Olin operation at Saltville ceased (see App. A to Lemmon motion for TRO), although it had, and still has, substantial operating authority to transport other bulk commodities to various points throughout the country. Lemmon had been transporting soda ash, caustic soda, and chlorine from the Olin Saltville operation since 1958. When the Saltville facility closed, production of caustic soda and chlorine were moved by Olin to its facilities in Charleston, Tennessee and Augusta, Georgia, but the soda ash operations were discontinued altogether. At the time of the transfer, Lemmon was authorized to transport caustic soda and chlorine from Saltville to certain cities and points in Tennessee, West Virginia, North Carolina, and South Carolina. Also, Lemmon already had authority to transport caustic soda and chlorine from Charleston to points in Kentucky and Mississippi. (See Ex. A to Lemmon motion for TRO). Lemmon's application in this proceeding, although it had as its basis the argument that it should be allowed to "follow the traffic" (e. g. serve the same authorized destination points from the shipper's new origin), sought additional authority to transport all chemicals from Olin's Charleston plant, with two restrictions, to points in a nine state area.

The ICC, in its order, made the following findings in denying Lemmon's application. It noted that Lemmon essentially sought to follow Olin's traffic to Charleston; that while it sought broad chemical authority, the only commodities for which a need had been shown from Charleston were chlorine and caustic soda (noting that Lemmon had been granted temporary authority for same); that one of Olin's divisions and three Olin consignees support the proposed service; that Lemmon already had permanent authority to transport caustic soda and chlorine from Charleston to two of the proposed destination states (Kentucky and Mississippi); that Chemical Leaman held appropriate authority to meet Olin's and Olin consignees' reasonable transportation needs, and was ready, willing and able to do so; and that, although Olin had referred to certain service delays in Chemical Leaman's service, there was no showing it could not substantially satisfy Olin's and consignees' overall requirements. The ICC further stated the normal rule that existing carriers are entitled to transport all authorized traffic that they can efficiently and economically handle, within their territories, before a new competitive service may be authorized, and that mere preference for a particular carrier is insufficient to warrant a grant of authority. The ICC concluded by stating it was not justified in instituting a new competitive service absent a showing that existing carriers are unable or unwilling to satisfy Olin's and consignees' reasonable requirement for transportation. Since, the ICC concluded, Lemmon had failed to establish that present or future public convenience and necessity required its proposed operation, the application was denied.

Lemmon's first contention is that the Administrative Procedure Act, 5 U.S.C. § 557(c), which in essence requires the reasons or basis for agency findings and conclusions concerning all material issues to be in the record, was not complied with. Lemmon argues that the ICC should at least have discussed its reasoning as to how and why it weighed the various factors raised by the parties in arriving at its decision.

It is beyond dispute, however, that the Administrative Procedure Act (APA) does not require the ICC to furnish an analysis of each item of evidence nor to disclose the mental processes through which the decision was reached. As long as its findings are sufficiently complete so that the reviewing court can discern with confidence the agency's conclusions and underlying reasons, and if its findings are supported by substantial evidence based on the record as a whole, the findings will be upheld. See Alabama G.S.R. Co. v. United States, 340 U.S. 216, 227-28, 71 S.Ct. 264, 95 L.Ed. 225 (1951); Kent Freight Lines v. United States, 341 F.Supp. 787, 789-90 (D.Md.1972) and cases cited. We think the ICC has adequately set forth its findings and supporting reasons.

Specifically, Lemmon asserts that the ICC has failed to evaluate properly its proposal in the light of the "follow the traffic" aspects of the case, that the ICC has failed to discuss the bearing of its temporary authority grant as it affects its application, and that the ICC holding...