Petition — Illinois v. Interstate Commerce Commission
Supreme Court brief1980
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In The
Supreme Court of the United States
October Term, 1980
PEOPLE OF THE STATE OF ILLINOIS, ef al.
y. Petitioners,
INTERSTATE COMMERCE COMMISSION, ef al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
WILLIAM J. SCOTT
Attorney General of the
State of Illinois
228 North LaSalle Street
Chicago, Illinois 60601
Tel: 312/793-2877
HERCULES F. BOLOS, Spec.
Asst. Attorney General
GEORGE W. WOLFF, Assistant
Attorney General
REED W. NEUMAN, Assistant
Attorney General
JOHN D. DILLNER
223 East 142nd Street
‘ Dolton, Illinois 60419
DALE A. ANDERSON
3344 Ridge Road
Lansing, Illinois 60438
RONALD BUIKEMA
16231 Wausau Avenue
South Holland, Illinois 60473
GORGON P. MacDOUGALL
1120 19th Street, N.W.
Washington, D.C. 20036
JULY 1980 Attorneys for Petitioners
THE CASILLAS PRESS, INC.-1717 K Street. N. W.—Washington, 0. C.-223-1220
(i)
QUESTION PRESENTED
Whether the 1.C.C. fulfilled its responsibilities under
the Interstate Commerce Act and National Environmental
Policy Act, in approving a consolidation of railroad
facilities at Yard Center, IIl., by deference to local, state,
and other federal agencies for enforcement of the en-
vironmental consequences of the pre-existing and
cumulative impact of the consolidation, rather than by the
1.C.C. itself imposing environmental conditions to its ap-
proval.*
*Petitioners in the court of appeals are People of the State of Illinois
(William J. Scott, Attorney General, and Environmental Control
Division), Illinois Commerce Commission, Village of Dolton, Village
of Lansing, Village of South Holland, John W. McGinness and Jack
O. Black (United Transportation Union); Respondents are Interstate
Commerce Commission, United States of America, and Louisville &
Nashville Railroad Company.
(iii)
CONTENTS
Page
Es ccc cvesdccecccvcsenucceseeee Preface
EE I a rr rr Te l
TPO faa Sie' aba sa sop eons 0440.0 00% Cheb wee oe 2
IEE ee Re me ees ow 2
ra peu eee Vis sedeses aces Veaaneer 3
The I.C.C.’s Reversal of the ALJ’s Decision .............45. 6
Pareerence OY Court OF ADDONS 2... cc cccccccccccscccccccs 9
REASONS FOR GRANTING THE WRIT ............ 000000005 7)
I. THE ISSUE IS OF PUBLIC IMPORTANCE
IN LIGHT OF THE RESURGENCE OF RAIL-
ROAD CONSOLIDATION PROPOSALS ............ 10
Il. THE 1.C.C.’s DEFERENCE OF ENVIRON-
MENTAL ENFORCEMENT TO OTHER
AGENCIES IN LIEU OF IMPOSING CONDI-
TIONS RAISES IMPORTANT FEDERAL
JURISDICTIONAL AND PROCEDURAL
a 11
Ee ai cicas kaise ade canta e eee enna 14
APPENDIX
Opinion of Court of Appeals (April 24, 1980) ............6..055. la
Report of Interstate Commerce Commission
le OPE, FY TRE POS TEER ORT ET Ce 10a
Decision of Interstate Commerce Commission on peti-
tions for administrative review (July 19, 1979) .............5. 23a
Decision of Administrative Law Judge (served
July EE Se a PL ae Cee 27a
PREVIOUS PAGE WAS BLANK
(iv)
Judgment of Court of Appeals (April 24, 1980) ................ 57a
Order of Court of Appeals denying rehearing
SN ATE PE W'G.0 o.0'é 45:5 pas db. 0b a PRI AS IE oo ea eran 58a
Citations
Cases:
Burlington Northern, Inc.-Control & Merger, St. L.,
BODE he, TOP CROE ini oo ANCE Ay 10
Chicago, M. St. P. & P.R. Co.-Trackage Rights,
342 1.C.C. 578 (1973), sustained sub nom, Louisville
and Nashville Railroad Co. v. United States, 369
F. Supp. 621 (W.D. Ky. 1973), aff'd per curiam
ROGGE RCH chek cece hae eete alae Denwal eines cee 12
Dean Milk Co. v. Madison,
a Re i) PRE ee eT Ener ere ry yey sy 13
Environmental Defense Fund, Inc. v. Armstrong,
352 F. Supp. 50 (N.D. Calif. 1972), aff'd 487 F.2d
814, cert. den. 416 U.S. 974 wn ccccccescees db he Ree Aa Caie all 11
Hanly v. Kleindienst, 484 F.2d 448 12d Civ. 1973), vert. den, 416 U.S.
eT OPT ERE OR TEETER LTE ee Ce re et ee els eh I]
Louisville & N.R. Co.-Merger-Monon Railroad,
Be Ei ae ROPER OE 0.0% edbweeeKat ceed es Chteaeeeee nies 12
Louisville & N.R,. Co.-Pur.-Chicago & E.1.R. CO.,
BOON ac BVRGIOEED 65h ava dks kobe wotkctdets pee 7,12
Louisville & N.R, Co. Trackage Rights,
BO UAciice MER RUOE, c VA dap tee Ree ROU Adee eee Au.
Louisville & N.R. Co.-Trackage Rights,
See es RURERE POS, 0405085509 010b ne baa cekeniadeiiak passim
Missouri Pac, R. Co.-Control-Chicago & E.1.R. Co.,
327 1L.C.C. 279 (1965), sustained sub nom, Illinois
Central Railroad Co. v. United States, 263 F. Supp.
421 (N.D. Ill. 1966), aff'd per curiam 385 U.S.
ET AOTD 6. -6:5.0-8 6 CEST Spd ee 0h 111d oe Chae are ere ae 12
(v)
Norforlk & W.R. Co.-Control-Detroit, T. & 1.R. Co.,
360 1.C.C. 498 (1979) and 363 1.C.C. 122 (1980) ....0 6... eee 10
Northern Lines Merger Cases,
ee, as cal chadad aves scestaresene ts 10
Penn-Central Merger Cases,
Ee rere y eye eee ee ree ere re 10
Pike v. Bruce Church, Inc.,
ET AR ER ee Sere ee ee ee 13
Palisades Citizens Association, Inc. v. C.A.B.,
EEA. Gal, FOOD as cn deb Seveeececcecesecieseves 13
Raymond Motor Transportation, Inc. v. Rice,
Ne es ek Cece becechenenecceUsep es 13
Seaboard Air Line R. Co. v. United States,
sei EV inwn bub we dence ine oe Bo RE RRS 10
Statutes:
RE CUE cin iecdaceerdesotccccccsccncvscnecsveeens 2
PE UME. a pc ac vevviedetepeseeccccnccoocnccesscccesse 2
Ne ea sche beds ceed ves tesbeee beengenersbense 4
| ENOL SPECT UTE TVET TES UETURETTLEL 2,3, 11, 12
ee. cua bpace Maree sie steseenesectenedeneces 2,3
EME MEREEEEDPED cc cccdccduecccsevcedvcctecncvececcvecs 4
PR MDE IOTTD ccc ccccceccccceecvsescenscuuevecness 10
TL iC ease ped ebledaeet eee h ee ea euch et nies 2,3
MELE cobb a pees ek cet anevececeneecaere 2,4, 10, 11, 13
las bcuneaesbecd¥eseegseeeeteneenenn 2,3
ccna cise s teekd base Sorcerer Gener rstesssccconeses 4
In The
Supreme Court of the United States
October Term, 1980
PEOPLE OF THE STATE OF ILLINOIS, et al.
y Petitioners,
INTERSTATE COMMERCE COMMISSION, e/ a/.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Petitioners, People of the State of Illinois, Illinois Com-
merce Commission, Village of Dolton, Village of Lansing,
Village of South Holland, John W. McGinness, and Jack
O. Black, respectfully pray that a writ of certiorari issue to
review the judgment and opinion of the United States
Court of Appeals for the Seventh Circuit, entered in this
proceeding on April 24, 1980.
OPINIONS BELOW
The opinion of the court of appeals (App., la-9a) is
not reported. The decision of the Interstate Commerce
Commission (App., 10a-22a) is reported at 360 1.C.C. 115.
2
JURISDICTION
The judgment of the court of appeals (App., 57a) was
entered on April 24, 1980. The petitioners’ timely petition
for rehearing was denied on June 5, 1980 (App., 58a).
The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1) and 2101(c).
STATUTES INVOLVED
The statutes primarily involved are sections 101 and
102(1) of National Environmental Policy Act, 42 U.S.C.
4331 and 4332(1) and sections 10901(a) and 11344(c) of Ti-
tle 49 United States Code, which provide as pertinent:
42 U.S.C. 4331(a). The Congress, recognizing
the profound impact of man’s activity on the in-
terrelations of all components of the natural en-
vironment, particularly the profound influences
of population growth, high-density urbaniza-
tion, industrial expansion, resource exploitation,
and new and expanding technological advances
and recognizing further the critical importance
of restoring and maintaining environmental
quality to the overall welfare and development of
man, declares that it is the continuing policy of
the Federal Government, in cooperation with
State and local governments, and other concern-
ed public and private organizations, to use all
practicable means and measures, including
financial and technical assistance, in a manner
calculated to foster and promote the general
welfare, to create and maintain conditions under
which man and nature can exist in productive
harmony, and fulfill the social, economic, and
other requirements of present and future genera-
tions of Americans.
(b) In order to carry out the policy set forth in
this chapter, it is the continuing responsibility of
the Federal Government to use all practicable
means, consistent with other essential considera-
tions of national policy, to improve and coor-
dinate Federal plans, functions, programs, and
resources to the end that the Nation may —
42 U.S.C. 4332(1): The Congress authorizes and
directs that, to the fullest extent possible: (1) the
policies, regulations, and public laws of the
United States shall be interpreted and ad-
ministered in accordance with the policies set
forth in this Act, ...
49 U.S.C. 10901(a): A rail carrier providing
transportation subject to the jurisdiction of the
Interstate Commerce Commission under sub-
chapter I of chapter 103 of this title may (1) con-
struct an extension tc any of its railroad lines...
. only if the Commission finds that the present or
future public convenience and necessity require
or will be enhanced by the construction... . and
operation of the railroad line. :
49 U.S.C. 11344(c). The Commission shall ap-
prove and authorize a transaction under this sec-
tion when it finds the transaction is consistent
with the public interest.
STATEMENT
The proceeding involves a petition for review of a deci-
sion of the Interstate Commerce Commission (“I.C.C.”).
4
28 U.S.C. 2341, et seq. Louisville & N.R. Co. - Trackage
Rights, 360 1.C.C. 115 (1979).
The issues embrace the I.C.C.’s administration of the
provisions of National Environmental Policy Act (NEPA)
in the context of a railroad’s effort to consolidate yard
facilities in the Chicago, Ill. area.
Louisville & Nashville Railroad Company (“L&N”) uses
two freight yards in the Chicago area. One is a joint facili-
ty with a second railroad' at Yard Center, situated in
Dolton and South Holland, Illinois. The other is L&N’s
own yard located at South Hammond, Indiana. L&N
seeks to abolish its own yard at South Hammond, and to
consolidate the work at Yard Center. To accomplish this it
filed two applications with the I.C.C.; one to construct a
line of railroad at Munster, Indiana between its own line
and that of Grand Trunk Western Railroad Company
(“GTW”) under the provisions of 49 U.S.C. 10901,? the
other to acquire trackage over the GTW between Munster
and Thornton Junction, Illinois, the latter point adjacent
to Yard Center, under the provisions of 49 U.S.C. 11343.3
(App., lla, 28a).
The I.C.C.’s Administrative Law Judge (“ALJ”) denied
both applications. He found that the rerouting of traffic
into Yard Center would result in an increase in traffic.
(App., lla), but that L&N had not shown that conditions
'Missouri Pacific Railroad Company.
2Formerly, section 1(18) of the Interstate Commerce Act, 49 U.S.C.
1(18) (1977). The act was recodified by P.L. 95-473 (1978).
3Formerly, section 5(2)(b) of the Interstate Commerce Act, 49
U.S.C. 5(2)(b) (1977).
at Yard Center are consistent with acceptable levels of
local public health, safety, and noise pollution factors.
(App., 53a). He concluded that there was an “appalling”
lack of sensitivity and concern with public health at Yard
Center (App., 53a):
“ . . this record indicates an appalling lack of
sensitivity and concern with public health and
safety, noise pollution, and community relations
on the part of the operators of Yard Center.
Among others, two things stand out as examples
in support of the latter conclusion. These are the
condition of the fire hydrants in Yard Center
(and management’s apparent lack of interest in
corrective measures), and management’s ‘token’
noise pollution control efforts in installing inap-
propriate and insufficient plant material. As
noted by a witness, the planting efforts were so
grossly inadequate as to be an insult to the people
of South Holland. Of course, the deficiencies in
fire fighting facilities have been of especially high
public concern as a result of recent publicity
given to derailments and fires in other parts of
the country.”
In denying the application, the ALJ recommended the
imposition of 8 environmental conditions if the applica-
tions were approved upon a finding that the railroads at
Yard Center could or would abide by the conditions.
These 8 conditions were (App., 53a-54a): .
“(1) complete rehabilitation of the Yard Center
fire hydrants and water mains to standards ac-
ceptable to the Villages of Dolton and South
Holland, (2) development of plans including pro-
6
visions for immediate emergency access to the
control function by public safety officials, (3)
joint construction with the Villages of Dolton
and South Holland of pedestrian overpasses at
144 St. in Dolton and 170 St., in South Holland,
(4) development of plans to regulate and control
the placement of idling equipment, (5) limitation
to switch engines with lower noise emission
ratings, (6) development of a plan and installa-
tion of an extensive system of suitable noise bar-
riers around Yard Center, (7) designation of a
specific official and an alternative to be responsi-
ble for Yard Center and related activities and
facilities and the provision of access to these per-
sons by appropriate local governmental officials,
and (8) designation of a community relation
representative with plans for the provision of
timely receipt of and action on complaints.”
The I.C.C.’s Reversal of the ALJ’s Decision
The I.C.C. reversed the ALJ and granted the applica-
. tions. (App., 10a-22a) The 1.C.C. stated that National En-
vironmental Policy Act mandates that environmental con-
cerns are to be considered in determining if a transaction is
in the public interest. However, the weight to be given en-
vironmental concerns is that an application should be
denied only when the harmful impacts outweigh* the
benefits to be gained from the proposal. 360 I.C.C. at 118
(App., 14a):
“In other words, NEPA mandates that en-
vironmental concerns are to be considered in
‘Initially, the 1.C.C. used the term “far outweigh”, but the word
“far” was deleted on reconsideration. (App., 25a).
determining if a transaction is in the public in-
terest.
“On a case-by-case basis, the benefits from a pro-
posed action must be balanced against the harm-
ful environmental impacts. An _ application
should be denied only when the harmful en-
vironmenmtal impats far outweight the benefits
to be gained from the proposal.”
The I1.C.C. ruled the environmental concerns and
adverse conditions essentially are preexistent.> It conclud-
ed that the benefits both environmental and operational
outweigh certain harmful environmental impacts. 360
1.C.C, at 119. (App., 16a).
The I.C.C. rejected the conditions proposed by the ALJ
on the ground that the conditions relate to protection
against environmental consequences subject to the regula-
tion of other Federal, State, and local agencies; that the
record does not show the cost of compliance with the con-
ditions; and that these other agencies are the appropriate
authorities to enforce compliance.® (App., 17a):
“All of the conditions proposed by him relate to
protecting against environmental consequences
subject to the regulation of other Federal, State,
‘However, upon reconsideration the I.C.C. stated it considered the
cumulative impact — both pre-existing and incremental. (App., 25a)
Traffic at Yard Center increased dramatically with L&N’s acquisition
of the so-called Evansville line. See: Louisville & N.R. C. - Pur.
-Chicago & E.1.R. Co., 334 1.C.C. 273 (1968); Louisville & N.R. Co.
Trackage Rights, 334 1.C.C. 412 (1969).
The I.C.C. also stated it had no reasons to believe the railroads will
fail to comply with local regulations, which contradicts the ALJ’s fin-
dings but is not essential to the point at issue.
8
and local agencies. We are particularly concern-
ed that the record does not show the cost of com-
pliance with the recommended conditions, many
of which relate to local and State police power.
We have no reason to believe that the railroads
will fail to comply with all appropriate statutes
and regulations administered by those agencies.
However, in the event that they do not comply,
those agencies and not this Commission are the
appropriate authorities to enforce compliance.”
Chairman O’Neal, concurring in part, would impose a
condition to require the necessary fire hydrants and
crossover tracks, sO as to ensure compliance with local re-
quirements. He stated the 1.C.C. was in an “ideal
position”. 360 1.C.C. at 120 (App.,17a-18a):
“I also agree that the conditions proposed by the
Administrative Law Judge are largely within the
control of other Federal, State, and local agen-
er
“Nonetheless, | believe that the Commission is
in an ideal position to ensure compliance with
those conditions. . . .”
Commissioner Stafford disssented. He pointed out that
Yard Center does not contain adequate fire protection
facilities, and that L&N has not controverted this nor
shown that rehabilitation of the water main would be
financially burdensome. Further Yard Center is already
subjected to noise levels which frequently violate En-
vironmental Policy Act, State, and local noise standards.
He would recommend adoption of three of the conditions
proposed by the ALJ. 360 I1.C.C. at 120-21 (App.,
18a-29a).
9
Affirmance by Court of Appeals
The court of appeals affirmed the majority I.C.C. deci-
sion (App., la-9a). The unpublished order dealt with in-
consistencies between the agency decision and the agency
stay order (App., 3a-4a), and discussed various challenges
to the ALJ‘s handling of the hearings (App., 6a-9a).
However, little attention was devoted to the matter of the
agency findings which reversed those of the ALJ. The
court of appeals summarily ruled (App., 5a):
“In its April 21, 1979 Certificate and Decision,
the ICC expressed clearly its belief that the fin-
dings made by the ALJ were sufficient to sustain
the granting of the L&N applications. The Com-
mission then concluded that, based upon said
findings, reversal of the initial decision was re-
quired. It also, while so acting, noted that the
ALJ, in denying said applications, appeared to
have relied to an untenable extent upon matters
he (the ALJ) himself recognized as being only
collateral to the controlling issues. The Commis-
sion thus, in our view, more than “made clear not
only its awareness of what the (ALJ) had con-
cluded, but also its reasons for taking a different
course.” Greater Boston Television Corp. v.
FCC, 444 F.2d 841, 853 (D.C. Cir. 1970), cert.
denied, 403 U.S. 923 (1971).”
REASONS FOR GRANTING THE WRIT
The court of appeals has decided an important question
of federal law which should be settled by this Court.
The court of appeals affirmed the decision of the 1.C.C.
to approve a railroad facility consolidation, and rejected
10
environmental protective conditions which had been pro-
posed by the ALJ in his initial decision. The 1.C.C. would
leave the environmental consequences to the enforcement
of local, state, and other federal agencies.
I, THE ISSUE IS OF PUBLIC IMPORTANCE IN
LIGHT OF THE RESURGENCE OF RAILROAD
CONSOLIDATION PROPOSALS.
The matter of the I.C.C.‘s environmental respon-
sibilities in passing upon railroad facility consolidations
under 49 U.S.C. 11343 (formerly section 5(2) of the In-
terstate Commerce Act), which involves mergers, trackage
rights, leases, etc., has not heretofore come before the
Court in a major proceeding. The railroad merger wave of
the 1960’s occurred prior to enactment of National En-
vironmental Policy Act of 1969, so that the interplay bet-
ween NEPA and the former section 5(2) was not drawnin .
question.’
Now, after about a 10-year span of dormancy, railroad
consolidations are again in the forefront at the 1.C.C. The
1.C.C. recently authorized Grand Trunk Western Railroad
Company to control Detroit, Toledo and Ironton Railroad
Company and Detroit and Toledo Shore Line Railroad
Company. Norfolk & W.R. Co. - Control - Detroit, T. &
I.R. Co., 360 1.C.C. 498 (1979) and 363 1.C.C. 122 (1980).
See also: Burlington Northern, Inc. - Control & Merger,
St. L., 360 1.C.C. 783 (1980).
Other railroads have announced unification plans,
which are pending or anticipated at the I.C.C., such as
7See, e.g. Seaboard Air Line R. Co. v. United States, 382 U.S. 154
(1965); Penn-Central Merger Cases, 389 U.S. 486 (1968); Northern
Lines Merger Cases, 396 U.S. 491 (1970).
Chessie-Seaboard Coast Line, Southern-Norfolk &
Western, Southern Pacific-Santa Fe, and Union Pacific-
Western Pacific-Missouri Pacific.
Environmental considerations are surely to arise in the
context of the I.C.C.’s consideration of NEPA in its ad-
ministration of 49 U.S.C. 11343, et seq. The 1.C.C.’s ap-
proval of the Yard Center consolidation provides the
Court with the opportunity to settle the law on this score
at an early stage, to the benefit of the public interest.
ll. THE 1.C.C.’s DEFERENCE OF ENVIRONMEN-
TAL ENFORCEMENT TO OTHER AGENCIES
IN LIEU OF IMPOSING CONDITIONS RAISES
IMPORTANT FEDERAL JURISDICTIONAL
AND PROCEDURAL PROBLEMS.
The 1.C.C.’s deference to environmental enforcement
by local, state, and other federal agencies, rather than
through the imposition of environmental conditions to its
approval of the transaction, raises important matters of
jurisdiction and procedure.
Section 101(b) of NEPA, 42 U.S.C. 4331(b), directs
harmonization of state and federal action. Environmental
Defense Fund, Inc. v. Armstrong, 352 F. Supp. 50, 58
(N.D. Calif. 1772), aff'd 487 F.2d 814, cert. den. 416 U.S.
974:
“Basically, NEPA command a harmonization of
state and Federal agency action.”
Consultation and coordination between federal and
local officials . . . “should be done as a matter of common
sense.” Hanly v. Kleindienst, 484 F.2d 448, 449 (2nd Cir.
1973), cert. den. 416 U.S. 936.
12
Here, as a practical matter, it is the 1.C.C.’s approval of
a series 01 ‘transactions which has greatly increased the
amount of freight traffic flowing into and through Yard
Center. Missouri Pac. R. Co. - Control - Chicago & E.1.R.
Co., 327 1.C.C. 279 (1965), sustained sub nom. //linois
Central Railroad Company v. United States, 263 F. Supp.
421 (N.D. Ill. 1966), aff'd per curiam 385 U.S. 457 (1967);
Louisville & N.R. Co. - Pur. - Chicago & E.1.R. Co., 334
1.C.C. 273 (1968); Louisville & N.R. Co. Trackage Rights,
334 1.C.C. 412 (1969). The present proposal to abolish the
South Hammond yard and transfer the operations to
Yard Center dates from the I.C.C.’s approval of the L&N
- Monon merger. Louisville & N.R. Co. - Merger - Monon
Railroad, 338 1.C.C. 134 (1970); Chicago, M. St. P. &
P.R. Co. - Trackage Rights, 342 1.C.C. 578 (1973), sus-
tained sub nom. Louisville and Nashville Railroad Co. v.
United States, 369 F. Supp. 621 (W.D. Ky. 1973), aff'd per
curiam 414 U.S. 1105.8
Section 101(a) of NEPA, 42 U.S.C. 4331{a), requires
that the Federal government in cooperation with State and
local governments use “practicable” means. Here, the
1.C.C. has approved a transaction without knowing the
cost of complying with adequate environmental protec-
tion. (App., 17a).
Further, attempts at local enforcement of health and
safety regulations frequently are met with claims that such
regulations unconstitutionally burden interstate com-
merce. It would seem prudent that the I.C.C., rather than
the courts, first make an evaluation when initially approv-
®Upon reconsideration, the 1.C.C. acknowledged the cumulative
impact. (App., 25a).
13
ing the additional rail traffic movement. Raymond Motor
Transportation, Inc. v. Rice, 434 U.S. 429 (1978); Pike v.
Bruce Church, Inc,, 379 U.S. 137, 142 (1970); Dean Milk
Co. v. Madison, 340 U.S. 349 (1951).
The I.C.C. has failed in its task to accommodate NEPA
with 49 U.S.C. 11343. Even prior to NEPA, in situations
involving the certification of additional airlines at a com-
munity where noise levels would be raised, the Civil
Aeronautics Board was empowered to impose en-
vironmental conditions. Palisades Citizens Association,
Inc. v. C.A.B., 420 F.2d 188, 192 (D.C. Cir. 1969). In-
deed, the I.C.C. here did not disavow its power to impose
conditions. 360 I.C.C. at 119. (App., 17a). The agency
simply did not do so, but has unloaded the problems upon
other public bodies rather than use its “ideal position” to
ensure compliance with environmental standards. (dissent
of Chairman O’Neal, App., 17a-18a).
14
CONCLUSION
For the foregoing reasons, a writ of certiorari should
issue to review the judgment and opinion of the United
States Court of Appeals in this case.
Rspectfully submitted,
WILLIAM J. SCOTT
Attorney General of the
State of Illinois
228 North LaSalle Street
Chicago, Illinois 60601
Tel: 312/793-2877
HERCULES F. BOLOS, Special
Assistant Attorney General
GEORGE W. WOLFF, Assistant
Attorney General
REED W. NEUMAN, Assistant
Attorney General
JOHN D. DILLNER
223 East 142nd Street
Dolton, Illinois 60419
DALE A. ANDERSON
3344 Ridge Road
Lansing, Illinois 60438
RONALD BUIKEMA
16231 Wausau Avenue
South Holland, Illinois 60473
GORDON P. MacDOUGALL
1120 19th Street, N.W.
Washington, D.C. 20036
Attorneys for Petitioners
JULY 1980
la
UNPUBLISHED ORDER NOT TO BE CITED
PER CIRCUIT RULE 35
IN THE
United States Court of Appeals
FOR THE SEVENTH CIRCUIT
Chicago, Illinois 60604
Argued: February 27, 1980
April 24, 1980
Before
Hon. LUTHER M. SWYGERT, Circuit Judge
Hon. PHILIP W. TONE, Circuit Judge
Hon. NICHOLAS J. BUA, District Judge*
PEOPLE OF THE STATE OF ILLINOIS,
ILLINOIS COMMERCE COMMISSION,
VILLAGE OF DOLTON, VILLAGE OF
LANSING, VILLAGE OF SOUTH HOLLAND,
JOHN W. McGINNESS AND JACK O. BLACK,
No. 79-1454
Petitioners,
VS.
INTERSTATE COMMERCE COMMISSION and
UNITED STATES OF AMERICA,
Respondents.
LOUISVILLE AND NASHVILLE RAILROAD COMPANY,
Intervening-Respondent.
ON PETITION FOR REVIEW OF AN
ORDER FROM THE INTERSTATE
COMMERCE COMMISSION
* District Judge Nicholas J. Bua of the Northern District of Illinois
is sitting by designation.
2a
ORDER
The present matter involves a petition for review of a
Certificate and Decision of the Interstate Commerce Com-
mission [the ICC or Commission], served April 2, 1979,
authorizing the Lousiville and Nashville Railroad Com-
pany [L&N] to: (1) pursuant to section 5(2) of the In-
terstate Commerce Act, 49 U.S.C. § 11343, et seq., ac-
quire certain trackage rights, covering a distance of ap-
proximately 5.6 miles, over the Grand Trunk Western
Railroad Company [GTW] mainline running between
Munster, Indiana and Thornton Junction, Illinois; and (2)
pursuant to section 1(18) of the Interstate Commerce Act,
49 U.S.C. § 10901, construct and operate a short length of
connecting track between a now existing L&N line and the
aforementioned GTW mainline. Said Certificate and Deci-
sion reversed the initial decision rendered by the Ad-
ministrative Law Judge [ALJ], served July 13, 1978, deny-
ing the L&N applications.
The petitioners in this matter are the People of the
State of Illinois', the Illinois Commerce Commission, the
Villages of Dolton, Lansing and South Holland, Illinois,
and the United Transportation Union. Named as
respondents are the ICC and the United States of
America.? Intervening as a respondent is the L&N.
In a decision served August 8, 1979, the ICC, speaking
through Chairman O’Neal, directed that the effective date
of the April 2, 1979 Certificate and Decision be stayed
pending completion of the judicial review of its [the Com-
'The People of the State of Illinois are represented by the Illinois
Attorney General, William J. Scott.
2The United States of America is joined solely as a statutory respon-
dent 28 U.S.C. § 2322.
3a
mission’s] determinations. The present matter accordingly
is before the court in that posture.
In contending that the Certificate and Decision at issue
should not be allowed to stand as presented, the petition-
ers first argue that said Certificate and Decision must
be set aside, and the proceedings accordingly remanded, to
allow the ICC to explain certain alleged inconsistencies in
its findings. In support of this argument, the petitioners
note initially that the Commission, when reversing the in-
itial decision of the ALJ, indicated that applications of the
type filed by L&N
should be denied only when the harmful en-
vironmental impacts . . . outweigh the benefits
to be gained from the proposal.
They next point out that Chairman O’Neal, in the stay
order served August 8, 1979, found that said stay was war-
ranted because
[c]onsidering the relative balance of harms in-
volved in this proceeding, it is concluded that the
possibility of environmental damage resulting
from consummation of the approved transaction
outweights L&N’s projected loss of operating
savings attributable to a delay in consummating
the transaction. ?
These findings, the petitioners contend, are markedly
inconsistent, and thus require that the instant proceedings
be remanded in order that such inconsistencies may be ex-
plained. The court does not agree. We believe, to the con-
trary, that if the statements in questions are considered in
3A similar finding was made by the ICC, again speaking through
Chairman O’Neal, in a related stay order served June 11, 1979.
4a
their relevant contexts, the ICC’s findings are entirely
consistent. In its April 2, 1979 Certificate and Decision,
the Commission concluded that, on balance, any en-
vironmental damage which would result from the granting
of the L&N applications would, over time, be outweighed
by the benefits that ultimately would accrue from the ap-
plicant’s proposals. It was, therefore, the long-term effects
of granting the L&N applications which were balanced by
the ICC in its April 2nd decision. In staying the effective
date of that decision on August 8th, Chairman O’Neal did
not contradict this earlier finding of the Commission. The
Chairman in his analysis, basically weighed the potential
for immediate environmental harm against the effect on
the L&N of delaying implementation of its applications
until such time as the judicial review was completed. The
focus of his analysis thus was on the short-term. That be-
ing sO, any apparent inconsistency in the two findings
clearly can be reconciled by giving appropriate considera-
tion to the time frame relevant to the conclusion reached.
The petitioners next contend that the April 2, 1979 Cer-
tificate and Decision, as it now reads, cannot withstand
judicial review because the Commission failed in said Cer-
tificate and Decision to present findings adequate to sup-
port its reversal of the initial decision of the ALJ. That be-
ing so, they argue, the proceedings must be remanded “to
enable the ICC to state its reasons for differing with the
ALJ.” Brief for Petitioners, at 23.
The court finds this argument also to be without merit.
Although as the petitioners correctly note, it is the policy
in this Circuit that, in situations where an administrative
agency differs in result from the conclusions of the Ad-
ministrative Law Judge, said agency ordinarily should give
reasons for its departures therefrom, see e.g., Snap-On
Tools Corp. v. FTC, 321 F.2d 825, 837 (7th Cir. 1963);
5a
Deepfreeze Appliance Div., General Motors Corp. v.
NLRB, 211 F.2d 458, 460-61 (7th Cir. 1954), we believe
this standard has been adequately satisfied in the present
matter. In its April 2, 1979.Certificate and Decision, the
ICC expressed clearly its belief that the findings made by
the ALJ were sufficient to sustain the granting of the L&N
applications. The Commission then concluded that, based
upon said findings, reversal of the initial decision was re-
quired. It also, while so acting, noted that the ALJ, in de-
nying said applications, appeared to have relied to an
untenable extent upon matters he [the ALJ] himself
recognized as being only collateral to the controlling
issues. The Commission thus, in our view, more than
“made clear not only its awareness of what the [ALJ] had
concluded, but also its reasons for taking a different
course.” Greater Boston Television Corp. v. FCC, 444
F.2d 841, 853 (D.C. Cir. 1970), cert. denied, 403 U.S. 923
(1971).
It also is contended that the ICC, in refusing to reopen
the present matter and consolidate it with certain other
proceedings instituted in 1979, acted improperly. With
respect to this contention, it first must be noted that ad-
ministrative agencies, when determining whether related
proceedings should be consolidated, have broad discre-
tion. Such clearly is well settled. Association of
Massachusetts Consumers, Inc. v. SEC, 516 F.2d 711, 714
(D.C. Cir. 1975), cert. denied, 423 U.S. 1052 (1976); City
of San Antonio v. CAB, 374 F.2d 326, 328-29 (D.C. Cir.
1967); see American Trucking Associations, Inc. v. United
States, 326 U.S. 77, 83 (1945). As that is so, the peti-
tioners’ argument in this regard must fail. Simply put,
from the record presented it cannot reasonably be con-
cluded that the actions complained of on the part of the
ICC, i.e. the agency’s refusal to grant the petitioners’ re-
quests to reopen the instant matter to allow for consolida-
6a
tion of it, in any way constitute an abuse of the Commis-
sion’s afore-noted discretion.
The petitioners’ final argument is that the Certificate
and Decision at issue must be set aside because the hearing
conducted before the ALJ was fundamentally unfair. In
this regard, the petitioners first contend that the ALJ’s ac-
tions in requiring them to, over objection, conduct an im-
mediate cross-examination of the L&N’s technical
witnesses were improper and erroneous. Said contention is
premised upon the petitioners’ allegation that the L&N
was directed at the prehearing conference to submit to
them in advance of the hearing the testimony of the
witnesses in question, and that it [the L&N] failed to do
so.* Under such circumstances, they accordingly argue,
the requirement that they commence cross-examination on
the L&N’s highly technical presentation “almost im-
mediately” was patently unreasonable.
This contention of the petitioners was specifically ad-
dressed by the ALJ in his initial decision, wherein he
stated:
. . .a prehearing conference was held in April of
1977. No report was issued, apparently because
of the [prehearing conference ALJ’s subsequent]
departure from this agency. Although the matter
was set for hearing without any further comment
upon items discussed at the prehearing con-
ferences, such as prefiling of evidentiary state-
ment, the complaining parties made no timely,
formal effort by motion or petition to clarify
matters or obtain relief they (thought)
‘Such testimony was submitted to the petitioners, in documentary
form, immediately before the hearing.
7a
necessary.’ At the hearing, the parties were
allowed adequate time to examine applicant’s
statements (the longest of eight statements was
12 pages), including a 2-hour and 40 minute
recess starting at 10:50 a.m. on the first day of
hearing (statements were distributed prior to the
start of the hearing). No showing is made of how
the lack of provision of prefiling adversely affect
these parties. No showing is made to justify their
lack of diligence in seeking appropriate relief
prior to the start of the hearing and it appears
that such failure, followed by their subsequent
actions, could be found to constitute an attempt
to take unfair procedural advantage of applicant
in a manner that would affect the timely disposi-
tion of the proceedings.
Initial Decision, at 4; Joint Appendix (Vol. I), at 23. The
court finds the reasoning and conclusions of the ALJ as to
this issue to be both persuasive and accurate in law. The
propriety of the ALJ’s decision, moreover, is highlighted
and strengthened by the petitioners’ noticeable lack of
diligence in attempting to resolve the problems now com-
plained of prior to the commencement of the hearing.
That being so, as we believe him to have acted properly,
the ruling of the ALJ with respect to the petitioners’ pre-
sent contention is affirmed.
The next error alleged by the petitioners involves the
ALJ’s refusal to grant them a continuance at the end of the
fifth day of the hearing, a Friday, after being made aware
that counsel for the labor protestants would be engaged
the following Monday, on behalf of the same organiza-
‘In this regard, although such was not specifically noted by the
ALJ, it is clear that the petitioners did not at any time seek to invoke
the ICC’s discovery procedures. See 49 C.F.R. § 1100.55.
~
8a
tion, in a major abandonment case in Indianapolis, In-
diana. As a consequence of that ruling, the petitioners
contend, Missouri Pacific Railroad Company [MoPac]
witness H. J. Vierling could not be cross-examined by
labor counsel, and L&N testimony in rebuttal to labor and
other witnesses was, over the objection of the
unrepresented labor organizations, allowed into evidence.
As regards this contention of the petitioners, the court
notes first that the labor petitioners have not at any time
shown that it would have been impossible for them to ob-
tain representation at both of the hearings under discus-
sion. Also, the record indicates that said petitioners had at
least limited representation throughout the hearing at
issue. Of even greater significance, though, is the fact that
counsel for the labor protestants was never excused by the
ALJ from the L&N hearings. His absence on the dates in
question thus was in violation of Rule 69 of the ICC’s
General Rules of Practice, 49 C.F.R. § 100.69 — a fact
not unknown to the various petitioners at the time the con-
tinuance at issues was sought. This revelation, when
coupled with the other pertinent facts, weighs heavily
against the petitioners’ position. When the relevant cir-
cumstances are viewed in their entirety, we very simply do
not feel that the rulings of the ALJ complained of can
reasonably be looked upon a constituting an abuse of his
discretion. See NLRB v. Glacier Packing Co., Inc., 507
F.2d 415, 416 (9th Cir. 1974).
The petitioners’ final contention regards the limitations
imposed by the ALJ on the cross-examination of MoPac
witness H. J. Vierling. This contention, the court believes,
also is without merit. As concerns the hearing in question,
MoPac was directed by the Commission to appear and
present testimony only as to one issue - why it (MoPac)
had attemtped to withdraw its initial intervention in op-
9a
position to the L&N applications. That being so, the ALJ
properly limited questions asked of Mr. Vierling to “those
relevant to the Commission’s order concerning MoPac’s
intervention.” Initial Decision, at 9; Joint Appendix (Vol.
I), at 28. That an Administrative Law Judge, in such situa-
tions, has discretion to so limit cross-examination is well
settled. See NLRB v. Bryan Manufacturing Co., 196 F.2d
477, 478 (7th Cir. 1952).
The Certificate and Decision of the Interstate Com-
merce Commission served April 2, 1979 is, for the reasons
stated above, AFFIRMED. ;
10a
INTERSTATE COMMERCE COMMISSION
FINANCE DOCKET NO. 27972!
LOUISVILLE AND NASHVILLE RAILROAD COM-
PANY—TRACKAGE RIGHTS—OVER GRAND
TRUNK WESTERN RAILROAD COMPANY SOUTH
BEND SUBDIVISION BETWEEN MUNSTER, LAKE
COUNTY, INDIANA AND THORNTON JUNCTION,
COOK COUNTY, ILLINOIS
Decided March 29, 1979
On appeal, initial decision reversed, the trackage rights
and construction applications found to be in the public in-
terest because the benefits to be gained from the proposal
outweigh the local harmful environmental impacts.
J. H. Durkin and R.H. Stalheber for Missouri Pacific
Railroad Company.
Fred R. Birkolz, Emried D. Cole, and R. Lyle Key, Jr.,
for applicant.
William J. Scott, Hercules F. Bolos, Mary C. Ubatuba,
Gordon P. MacDougall, Thomas Swabowski, Dale
Anderson, Ronald Buikema, and John D. Dillner for pro-
testants.
'This decision also embraces Finance Docket No. 28464. Louisville
and Nashville Railroad Company Construction of Connecting Track
Over Grand Trunk Western Railroad Company at Munster, Lake
County, Indiana.
lla
CERTIFICATE AND DECISION
BY THE COMMISSION:
On July 7, 1978, the Administrative Law Judge denied
Louisville and Nashville Railroad Company’s (L&N) ap-
plications for trackage rights and for construction of con-
necting track. The proposal would allow L&N to con-
solidate switching facilities at Yard Center, in Dolton and
South Holland, IL. The Administrative Law Judge con-
cluded that approval of the applications would result in
the elimination of duplicate rail facilities and would result
in more efficient and economical operations, if it could
be found that L&N could ensure that Yard Center would
be operated in the manner proposed. He also found,
however, that the rerouting of traffic into Yard Center
would result in an increase in traffic. The size of the in-
crease in traffic and the nature of the impact on the com-
munity surrounding Yard Center was the central issue at
hearing and on appeal.
The Administrative Law Judge found that L&N had not
shown that it would control the conditions at Yard Center,
which is operated by Missouri Pacific Railroad Company
(MoPac), so that the proposed benefits would actually ac-
crue. He found that the evidence supported the imposition
of eight conditions to insure acceptable levels of local
public health, safety, and noise pollution. However, since
there was no showing that L&N or MoPac would imple-
ment these conditions, he concluded that L&N had not
satisfied its burden of proof and that the applications must
be denied.
Appeals to that decision were filed by L&N and MoPac.
Replies to the appeals were filed by: (1) People of the State
of Illinois, Illinois Commerce Commission, John W.
McGuiness and George B. Lee (Commerce Commission),
12a
(2) Village of Lansing (Lansing), (3) Village of Dolton
(Dolton), (4) Village of South Holland (Holland), and (5)
The Attorney General of the State of Illinois (Illinois). A
motion to strike was filed by L&N. Replies were filed by
the Commerce Commission, Illinois, Lansing, Dolton,
and Holland. L&N filed a pleading entitled, “Reply to
Protestant’s Exceptions.” The Commerce Commission
filed a motion to strike that pleading. Finally, MoPac filed
a reply to motions to strike which were included in the
replies filed by Lansing and Holland.
PROCEDURAL ISSUES
We will first dispose of the procedural issues raised by
these pleadings. L&N’s motion to strike portions of the
replies will be denied. It is the policy of the Commission
that a reply to applicant’s exceptions is not the proper
forum in which to raise exceptions to the findings of an
Administrative Law Judge. CRST, Inc. — Purchase — Lee
Bros., Inc., 127 M.C.C. 328, 330 (1978). However, there
are two reasons why these pleadings should be accepted in
the instant proceedings. First, the Commission has an af-
firmative duty under the National Environmental Policy
Act of 1969 (NEPA) and under its own regulations (49
CFR 1108) to review environmental issues. Secondly, the
protestants agreed with the ultimate conclusion of the in-
itial decision, denial of both applications, and the errors
raised were with respect to findings which were not essen-
tial to the denial of the application.
We will accept L&N’s pleading entitled “Reply to Pro-
testant’s Exceptions.” Usually we would reject this type of
pleading under rule 21(a) which prohibits a reply to a
reply. However, protestants, in disagreeing with certain
findings in the initial decision, raised numerous issues.
Because of the complex issues raised in the replies in-
13a
cluding many objections to rulings and findings of the Ad-
ministrative Law Judge, it is appropriate to accept L&N’s
response to these issues.
We will also deny L&N’s motion to strike the reply of II-
linois. L&N has not been prejudiced by our accepting this
pleading which was filed 2 days late.
Finally, we will also deny the motions to strike MoPac’s
pleading. First, MoPac is properly a party to this pro-
ceeding and has standing to file an appeal.? Secondly, the
appendixes to MoPac’s appeal should be accepted because
they are public records and are relevant to the issues raised
in the initial decision.
We now turn to the substantive issues raised in these
proceedings. Essentially, the trackage rights application
was denied on environmental grounds. The Ad-
ministrative Law Judge found that L&N had not shown
that the conditions at Yard Center are consistent with ac-
ceptable levels of local public health, safety, and noise
pollution. Therefore, he concluded that the applications,
which in all likelihood would exacerbate these problems,
would not be consistent with the public interest.¢
2MoPac filed a petition for leave to intervene on December 17,
1976, and then on January 18, 1977, submitted a letter to withdrew its
petition. On April 29 the Commission ordered MoPac to participate in
this proceeding. In the initial decision the Administrative Law Judge
granted leave to withdraw. However, MoPac had not requested leave
to withdraw at hearing and it appeared at hearing and submitted
evidence.
3Appendix A is a settlement agreement between Illinois and
Holland and MoPac concerning noise-abatement measures in connec-
tion with Yard Center. Appendix B is a State court order granting a
motion to dismiss based upon this settlement agreement. Appendix C
is another State court order disposing of litigation which was pending
at the time of hearing and was referred to in the initial decision.
449 U.S.C. 11344(c), formerly section 5(2)(b) of the Interstate Com-
merce Act, requires a determination of whether the application is con-
sistent with the public interest.
l4a
”
1. Environmental concerns and the “public interest
determination. — During the past decade, this Nation has
become increasingly concerned with environmental issues.
Since passage of the NEPA, Federal agencies have been re-
quired to determine whether a decision is a major Federal
action significantly affecting the quality of the human en-
vironment. However, even if there is a negative NEPA find-
ing, i.e., no significant adverse effect, environmental im-
pact still must be considered.» NEPA mandates that, “to
the fullest extent possible*** public laws of the United
States*** be interpreted and administered in accordance”
with its policies. In other words, NEPA mandates that
environmental concerns are to be considered in determin-
ing if a transaction is in the public interest.’
2. The weight to be given environmental concerns — On
a case-by-case basis, the benefits from a proposed action
must be balanced against the harmful environmental im-
pacts. An application should be denied only when the
harmful environmental impacts far outweigh the benefits
to be gained from the proposal.
What are the benefits to be gained from these applica-
tions? The Administrative Law Judge correctly found that
approval of these applications would result in the elimina-
>The Commission has previously imposed environmental conditions
in a rail proceeding which it found to be a major Federal action. Bur-
lington Northern, Inc. — Construction and Oper., 348 1.C.C. 388, 405
(1976). Although we are not aware of any cases in which the entire
Commission or a division has imposed environmental conditions in
proceedings after making a negative NEPA finding, we do not
automatically preclude their imposition where a proper recdrd is
developed.
642 U.S.C 4332(1) (1970).
749 CFR 1108.3 provides:
In accordance with section 101 of NEPA, adverse environmental
effects should be minimized to the fullest extent practicable consistent
with the national transportation policy ***.
15a
tion of duplicating rail facilities by consolidating two
freight yards which are 6 miles apart® and could result in
more efficient and economic operations.? L&N will con-
tinue to operate an existing line in the Hammond area and
will provide service to shippers and receivers located in
that area. '!°
Opposition to the proposals has focused on the harmful
environmental impacts.'!' The environmental protestants
contend that the traffic diversion to Yard Center will be
greater than estimated by L&N.'? From our review of the
record, L&N’s estimate is substantially accurate. Appli-
cant has also shown that Yard Center has adequate capaci-
ty to absorb the cars and the switching that is now handled
at Hammond Yard. '3
‘Under these proposals, L&N would reroute traffic presently
handled at its South Hammond Yard and consolidate switching ac-
tivities in Yard Center, in Dolton and South Holland, IL.
°The total net start-up cost incident to the proposal is estimated to
be $1,238,319. The annual operating savings is estimated to be
$299,583. After 4 years, L&N would benefit financially, Tr-1392,
1393, exhibits 4-8.
'“Only one shipper in the Hammond area opposed the application
at hearing; however, he testified for the purpose of airing complaints
against L&N service rather than protesting the application.
''\Opposition was also expressed by labor interests
'"L&N estimates approximately two trains per day will be routed
through Yard Center. The number of cars to be added annually to
Yard Center switching by Hammond trains is estimated to be approx-
imately 62,000 cars. Exhibit | and Tr-pp 47-49.
'3MoPac, who is in charge of day-to-day operations of Yard
Center, originally opposed the application. MoPac contended in its
petition to intervene in this proceeding that approval of this applica-
tion would increase congestion at Yard Center and this might reduce
efficiency, interfere with through trains, substantially increase the
costs of operating Yard Center, and aggravate the environmental pro-
blems. However, MoPac’s representatives testified at hearing that the
l6a
The environmental protestants also contend that the
proposal will result in operational inefficiencies i.e., Am-
trak trains will be delayed and railroad crossings will be
tied up for lengthy periods. They argue that this proposal
will result in problems with safety at grade crossings and
noise and traffic congestion.
However, the Federal Environmental Impact Statement
(FEIS) concluded that the traffic problems at Thornton
Junction would be mitigated by the installation of power
switches and crossover tracks. L&N has stated that it plans
to install crossover tracks north of the Grand Trunk
Western (GTW) connection and power controlled switches
at Thornton Junction. This proposal will mitigate the
blockage of grade crossings, one of the main concerns
raised by protestants.
There are other environmental benefits to be gained
from this proposal: the South Hammond classification
year would be eliminated and noise, traffic, and safety
problems in that area would be removed. Also, the FEIS
concluded that this proposal would result in a net reduc-
tion of air pollutants and energy consumption because
L&N traffic would be moving over a shorter route.
The evidence of record shows that the environmental
concerns and adverse conditions essentially are preexis-
tent. We conclude that the benefits both environmental
and operational outweigh certain harmful environmental
impacts; that the Administrative Law Judge committed
reversable error by failing to reach this conclusion, and
that the applications should be granted.
opposition resulted from misunderstanding L&N’s proposal. He
stated that with an understanding that only two daily trains would be
involved and with an installation of power switches, the level of in-
terference would be considered insignificant.
17a
L&N and MoPac argue in their exceptions, that the im-
position of the conditions recommended by the Ad-
ministrative Law Judge is beyond the Commmission’s
power. We do not agree. The only limitation on the Com-
mission’s power to impose conditions is that the conditions
be reasonable. Reed v. Meserve, 353 F. Supp. 141 (D.
N.H. 1973), affirmed, 487 F.2d 646 (Ist Cir. 1973). We
have determined that the facts of this case do not warrant
the imposition of the conditions recommended by the Ad-
ministrative Law Judge. All of the conditions proposed by
him related to protecting against environmental conse-
quences subject to the regulation of other Federal, State,
and local agencies. We are particularly concerned that the
record does not show the cost of compliance with the
recommended conditions, many of which relate to local
and State police power. We have no reason to believe that
the railroads will fail to comply with all appropriate
statutes and regulations administered by those agencies.
However, in the event that they do not comply, those
agencies and not this Commission are the appropriate
authorities to enforce compliance.
We conclude that, subject to labor protective condi-
tions, these applications are consistent with the public in-
terest.
This decision does not significantly affect the quality of
the human environment.
CHAIRMAN O’NEAL concurring in part:
I agree that the Commission has the power to impose
environmental conditions even in the absence of a finding
that a major environmental impact will result. I also agree
that the conditions proposed by the Administrative Law
Judge are largely within the control of other Federal,
State, and local agencies.
18a
Nonetheless, I believe that the Commission is in an ideal
position to ensure compliance with those conditions, and
that the decision should, at a minimum, require that the
necessary fire hydrants and crossover tracks be installed.
COMMISSIONER STAFFORD, dissenting:
I believe that the applications should only be granted
subject to the imposition of the following conditions:
There are no fire hydrants in Yard Center and the pres-
ent firefighting system is time-consuming and cumber-
some. From the evidence adduced at hearing. Yard Center
does not contain adequate fire protection facilities. Appli-
cant has not controverted this conclusion, nor shown that
rehabilitation of the water main in Yard Center would be
financially burdensome. The letter from South Holland
Fire Department explains how the existing main could
serve as as “feeder” main for two branch lines each with
three hydrants. | strongly believe that the public interest
requires the installation of hydrants.
The Administrative Law Judge also found that appli-
cant should be required to develop plans to control and
reduce grade crossing blockage. Blocked grade crossings
was a major concern of protestants in this proceeding.
The FEIS also studied this problem at section 4.4:
The proposed trackage rights acquisition would route
an additional two trains a day through Yard Center and
over the GTW Line. Although the level of traffic would be
low compared to current rail activity, the additional trains
would be long (over 100 cars) and existing traffic problems
and safety hazards at grade crossing would be exacer-
bated.
The FEIS concluded that the traffic congestion at
Thornton Junction would be mitigated by the installation
19a
of power switches and crossover tracks. L&N has stated it
plans to install crossover tracks north of the GTW connec-
tion and power controlled switches at Thornton Junction,
This proposal will mitigate the blockage of grade crossing
and will not unduly burden applicant, accordingly, |
would condition approval of the applications upon in-
stallation of the crossover tracks and switches.
The Administrative Law Judge was also concerned with
noise emissions and found that approval of the applica-
tions should be conditioned upon installation of an exten-
sive sysem Of noise abatement. It is uncontested that these
applications will result in some increase of noise emis-
sions, and that the community surrounding Yard Center is
already subjected to noise levels which frequently violate
Environmental Policy Act, State, and local noise stan-
dards.
To mitigate the noise emission problem, | would condi-
tion approval of the applications upon the submission of a
noise abatement plan. This plan should include the
elements discussed at section 6-4 of the FEIS, as well as the
economic cost to the railroad.
Finally, Administrative Law Judge recommended that
L&N be required to designate an official to be responsible
for Yard Center, and also, designate a community rela-
tions representative. Review of the record indicates that
the Administrative Law Judge correctly noted that the
railroad and the surrounding community have had many
problems. | recognize that the Administrative Law Judge’s
proposal would facilitate solving these problems.
However, the harmful environmental impacts from this
application are not so great that this condition is necessary
to make the proposal consistent with the public interest. I
do suggest, however, thatL&N and MoPac implement this
20a
condition, because, as the Administrative Law Judge
observed, it would, “go a long way toward enhancing con-
ditions for the railroads and the local public.”
2la
It is ordered:
1. In cinance Docket No. 27972 the proposed acquisi-
tion of trackage rights by the Louisville and Nashville
Railroad Company over a 5.6-mile segment of the Grand
Trunk Western Railroad Company mainline between
Munster, IN, and Thornton Junction, IL is approved. It is
certified that in Finance Docket No. 28464, the present
and future public convenience and necessity require the
construction and operation of a connecting track between
the Grand Trunk Western Railroad Company and the
Louisville and Nashville Company at Munster, IN.
Both applications are approved subject to conditions
for the protection of employees as finally determined in
Norfolk and Western Ry. Co.— Trackage Rights— BN,
354 I.C.C. 605 (1978) (reopened by decision served
February 23, 1979). No change or modification shall be
made in the trackage rights agreement without prior ap-
proval of the Commission.
2. Within 15 days after completion of the construction
and the commencement of operations, applicant shall give
written notice to the Commission of the dates construction
was completed and that operations were commenced. Ap-
plicant shall also submit two copies of the journal entries
required to record the cost of the construction transaction.
If applicant established rates and charges on the line, it
shall refer to the certificte and decision by date and docket
number.
3. This decision is effective 30 days from the date of ser-
vice. Unless the transactions are consummated within 1
year from the effective date, this decision shall be of no
further force and effect. Applicant shall also notify the
Commission when it has consummated the trackage rights
transaction.
22a
By the Commission, Chairman O’Neal, Vice Chairman
Brown, Commissioners Stafford, Gresham, Clapp, and
Christian. Chairman O’Neal concurring in part. Commis-
sioner Stafford dissenting.
H.G. HOMME, JR.,
Secretary.
360 I.C.C.
(Seal)
23a
INTERSTATE COMMERCE COMMISSION
DECISION
Finance Docket No. 27972
Service Date: July 19, 1979
LOUISVILLE AND NASHVILLE RAILROAD
COMPANY TRACKAGE RIGHTS OVER GRAND
TRUNK WESTERN RAILROAD COMPANY
SOUTH BEND SUBDIVISION BETWEEN MUNSTER,
LAKE COUNTY, INDIANA AND THORTON
JUNCTION, COOK COUNTY, IL
Finance Docket No. 28464
LOUISVILLE AND NASHVILLE RAILROAD
COMPANY CONSTRUCTION OF
CONNECTING TRACK OVER GRAND TRUNK
WESTERN RAILROAD COMPANY AT MUNSTER,
LAKE COUNTY, INDIANA
Decided: July 12, 1979
In separate petitions filed, respectively, April 21, 22,
and 26, 1979, the Villages of South Holland, Dolton, aiid
Lansing, Illinois (Villages) sought administrative review of
the decision of the Commission, served April 2, 1979. The
State of Illinois, Environmental Control Division
(E.C.D.), also filed a petition for administrative review of
the April 2 decision on April 23, 1979. Each of the peti-
- tions was rejected by letter of Deputy Director Erenberg,
dated May 2, 1979. The petitions were rejected because
they sought reconsideration of the Commission’s decision .
on the basis of a finding that the proceedings involve a
matter of general transportation importance. 49 U.S.C.
§ 10327(g)(2), only provides for the Commission granting
24a
reconsideration of a decision of a division, and not of the
entire Commission, on the basis of a finding of general
transportation importance. We acknowledge that these pe-
titions were filed in accordance with then applicable Rule
98(e) of our General Rules of Practice, which allowed any
party to seek discretionary review of a decision of the en-
tire Commission on grounds of general transportation im-
portance. This conflict between our rules and the statute
has subsequently been addressed in Ex Parte No. 55 (Sub-
No. 24A). Rail Appellate Procedures - Revision of Rule 98
of the Rules of Practice, 49 C.F.R. 1100.98, by decision
served June 29, 1979.
On June 5, 1979, the Villages filed a joint appeal seeking
reconsideration of the rejection of their respective peti-
tions. Louisville and Nashville Railroad Company (appli-
cant) filed a reply to the appeal, in which it requested that
the rejected petitions be accepted and considered. In order
to give the Villages and E.C.D. an adequate opportunity
to present their arguments, we will accept their previously
rejected petitions for administrative review. Those peti-
tions will be treated and addressed as petitions seeking
reopening and reconsideration pursuant to 49 U.S.C.
§ 10327(g)(1). A reply to the petitions of the Villages was
filed by Missouri Pacific Railroad Company on May 7,
1979.
A joint petition fo reopening and reconsideration pur-
suant to 49 U.S.C. § 10327(g)(1) was also filed by the State
of Illinois, Illinois Commerce Commission, John W.
McGinness, and Jack O. Black on April 21, 1979. A reply
to the petition was filed by applicant.
We have determined that the petitioners have not set
forth arguments to justify granting reconsideration of our
prior decision. Accordingly the petitions for reopening
and reconsideration will be denied.
25a
We will nevertheless address certain of the issues raised
by the State of Illinois et al. and E.C.D., in their respective
petitions, regarding the consideration given by the Com-
mission to environmental factors in determining whether
to approve a transaction. Firstly, in cur prior decision we
stated, at page 5, the environmental balancing test to be
applied in each case. A modification of that statement is
necessary to reflect the Commission’s intention to ad-
minister its statutory duties to the fullest extent possible in
accordance with the policies of the National Environmen-
tal Policy Act of 1969. As a result, the statement at page 5
that, “An application should be denied only when the
harmful environmental impacts far outweigh the benefits
to be gained from the proposal” should be modified by
Jeletion of the word “far”.
Secondly, we disagree with the contention of petitioners
that we have considered only the incremental environmen-
tal impact of the proposed transaction. The record in-
dicates that we previously considered the cumulative —
both pre-existing and incremental — environmental ef-
fects of the transaction. We conclude, therefore, that our
treatment of the environmental matters was proper.
It is ordered:
1. The joint appeal of the rejection of petitions for ad-
ministrative review filed by the Villages of South
Holland, Dolton and Lansing, Illinois, is granted
and the petitions are accepted.
2. The petition for administrative review filed by the
State of Illinois, Enviroimental Control Division
is, ON Our Own motion, accepted.
3. The petitions for administrative review are denied.
26a
4. The decision of Chairman O’Neal served May 2,
1979, staying the effective date of the decision of
the Commission served April 2, 1979, is vacated.
5. This decision shall become effective on the date it is
served, and the decision of the Commission served
April 2, 1979, shall become effective 20 days from
the service date of this decision.
By the Commission, Chairman O’Neal, Vice Chairman
Brown, Commissioners Stafford, Gresham, Clapp, and
Christian. Chairman O’Neal and Commissioner Stafford
voted to grant the petitions and to reopen the proceeding
for the imposition of necessary environmental conditions.
/s/ Agatha L. Mergenovich
Secretary
27a
SERVICE DATE
JUL 13, 1978
INTERSTATE COMMERCE COMMISSION
DECISION
Finance Docket No. 27972'
LOUISVILLE AND NASHVILLE RAILROAD
COMPANY — TRACKAGE RIGHTS — OVER
GRAND TRUNK WESTERN RAILROAD COM-
PANY SOUTH BEND SUBDIVISION BETWEEN
MUNSTER, LAKE COUNTY, INDIANA AND
THORNTON JUNCTION, COOK COUNTY,
ILLINOIS
In the title proceeding, the acquisition of trackage rights
that would allow the transfer of certain yard operations
from Hammond, Ind., to Dolton-South Holland, IIl.,
found not shown to be in the public interest. Applica-
tion denied.
In the embraced proceeding, the public convenience and
necessity found not shown to require construction of
connecting track related to the sought trackage rights.
Application denied.
Fred R. Birkholz, Emried D. Cole, and R. Lyle Key, Jr.,
for applicant.
John C. Danielson for Grand Trunk Western Railroad
Company.
Stephen E. MclIlwain for intervenor in support of the ap-
plication.
'This decision also embraces Finance Docket No. 28464, Louisville
and Nashville Railroad Company Construction of Connecting Track
Over Grand Trunk Western Railroad Company at Munster, Lake
county, Indiana.
28a
Barbara Anthony for Section of Energy and Environment,
Interstate Commerce Commission.
Dale A. Anderson, Larry B. Blackwood, Ronald Bui-
kema, Charles W. Chapman, John David Dillner, Thur-
man Ferree, Ted Rashkow, Edwin R. Riemer, and
Thomas Swabowski for parties opposing the applica-
tion.
Clyde G. Coble, Donald L. Lindsey, Gordon P. Mac-
Dougall, George J. Nixon, Jr., and Patrick W. Sim-
mons for Labor interest.
John T. Coleman, J.H. Durkin, and Jerry J. Hanenburg
for Missouri Pacific Railroad Company.
By Richard H. Beddow, Jr., Administrative Law Judge:
By application filed August 6, 1975, the Louisville and
Nashville Railroad Company (L&N) proposes to acquire
trackage rights over a 5.6-mile segment of the Grand
Trunk Western Railroad Company (GTW) mainline be-
tween Munster, Ind., and Thornton Junction, Ill. In a
related proceeding, L&N filed an application on April 29,
1977, for authority to construct and operate a 1,294-foot
connecting track at Munster between the GTW and L&N
Lines. These proposals would allow L&N to reroute traffic
presently handled at its South Hammond, Ind., marshall-
ing yard in order to consolidate switching actitivites at
Yard Center, in Dolton and South Holland, III.
The title proceeding originally was referred to another
Administrative Law Judge for hearing in Chicago, IIl., on
April 4, 1977. The hearing was postponed and a prehear-
ing conference was held on the same date. Subsequently, a
final environmental impact statement prepared by the
Commission’s Section of Energy and Environment was
prepared and served January 23, 1978. The Judge holding
the prehearing conference became unavailable to the Com-
mission and no report or order on the prehearing con-
29a
ference was issued; however, the matter subsequently was
set for oral hearing and assigned to this Administrative
Law Judge for hearing and the issuance of an initial deci-
sion. Hearing was held at South Holland, Ill., on March 6,
7, 8, and 10, 1978, at Dolton, Ill., on March 9, 1978, and
at Chicago, IIl., on March 13 and 14, 1978.
The city of Hammond, Ind., and the Grand Trunk
Western Railroad Company appeared in support of the
applications. Four Hammond shippers (Ferree Furniture
Express, North American Refractories, Munster Lumber
Company, Inc., and Rand McNally & Company) ap-
peared in opposition; however, the latter three withdrew
upon reaching an agreement with applicant regarding con-
tinuation of a basic level of service at their facilities.
American Train Dispatchers Association, Brotherhood of
Locomotive Engineers and United Transportation Union,
all labor interests, also opposed the applications. Govern-
mental interests opposing the granting of the applications
represented the State of Illinois, Environmental Control
Division, the Illinois Commerce Commission, and the
Villages of Dolton, Lansing, and South Holland, III.
It also appears that on December 20, 1976, the Missouri
Pacific Railroad Company (MoPac), petitioned for leave
to intervene in Opposition to the title application citing
nine separate grounds in support of its requeset, that by
letter of January 18, 1977, it sought, without explanation,
to withdraw such petition, and that upon petition of the
Village of Dolton and United Transportation Union the
Commission, Commissioner Brown, found that some ex-
planation of why the grounds raised in the MoPac petition
are no longer valid is necessary and ordered that MoPac be
required to participate in the proceeding.
At the close of the hearing on March 14, 1978, the appli-
cant presented oral argument, in lieu of a brief in accor-
30a
dance with the Judge’s ruling and the Commission’s notice
in these specific proceedings of December 14, 1977, that
“pursuant to Rules 66 and 86 of the General Rules of Prac-
tice, all parties should be prepared to present oral argu-
ment, in lieu of briefs, at the conclusion of the hearing if
so ordered by the presiding officer.” In keeping with the
preferences of counsel for opposing parties in attendance
at the latter stages of the hearing (and over the objection
of Mr. Simmons for the United Transportation Union and
Mr. Lindsey of the Brotherhood of Locomotive Engi-
neers, who renewed request to file briefs), other parties
were given the opportunity to file written closing
statements, in lieu of oral argument, due 3 weeks after the
close of the hearing. Such statements were timely filed by
April 4, 1978, by the Villages of Dolton, Lansing, and
South Holland, the Brotherhood of Locomotive Engi-
neers, the State of Illinois, and jointly by the Illinois Com-
merce Commission and the United Transportation Union.
PRELIMINARY MATTERS
The joint statement filed by the Illinois Commerce
Commission and the United Transportation Union, under
a heading entitled “Argument” states “THe Conduct Of
This Proceeding By The Hearing Officer And By The
Commission Is So Unfair As To Require Further Hear-
ing.” Six allegations of error are stated: A. Failure to
follow the prehearing conference understandings; B.
Failure to grant continuance after the first week of hear-
ings; C. Failure to allow examination of the L&N-MOP
Operating agreement at yard center; D. Failure to allow
briefs; E. Refusal to identify or receive the draft en-
vironmental impact statement; and F. Refusal to exclude
operational portion of the FEIS in absence of verification
from a." The argument concludes with a comment that
3la
the examples of erroneous ruling show that further hear-
ing is required to correct the prejudicial state of the record
and favorable ruling is requested on the specific objections
made therein to the rulings of the hearing officer.
In a similar vein, the State of Illinois Environmental
Control Division also asks that the Commission defer ac-
tion until an adequate environmental impact statement is
prepared and a proper hearing conducted, contending that
there were prejudicial rulings in respect to: refusal to allow
time for hearing transcripts to be obtained before prepara-
tion of written statements; ordering continuation of the
hearing on March 6 and 7, 1978; attempts to require
counsel for some protesting parties to defer to others;;
limitation of cross-examination of witness Vierling of the
MoPac; and distributing protestants’ written questions to
be asked witness Vierling to his attorneys in advance. No
argument in support of its contentions, other than those
relating to environmental matters were advanced and none
of these parties expressed their requests in terms of specific
motions for relief.
A review of the record requires the conclusion that the
noted allegations of error are unfounded, that the com-
plaining parties were not prejudiced by any of the alleged
errors; that rulings made were properly within the discre-
tion of the Administrative Law Judge; that they were af-
forded fair treatment and due process under the Commis-
sion’s rules and regulations; and that, accordingly, their
requested findings in this respect and their appeal for fur.
ther hearing are denied.
In view of the somewhat strident nature of the allega-
tions noted above, it is considered necessary to comment
further on the matter involved therein and, unfortunately,
to call to attention of the practitioners involved, the Com-
32a
mission’s Canon of Ethics (49 CFR § 1100, Appendix A),
especially Cannon 3.
As the parties are well aware, the Congress, through the
Railroad Revitalization And Regulatory Reform Act of
1976, as well as the Commission, have established strict
criteria in respect to the timely disposition of proceedings.
The procedural nature of hearings otherwise are con-
ducted in accordance with the Administrative Procedure
Act (see especially 5 U.S.C., Sec. 556), and the Commis-
sion’s General Rules of Practice (49 CFR 1100).
Rule 69 of our rules of practice provides that “When a
practitioner enters an appearance at a hearing he will be
expected to represent his client faithfully until the comple-
tion of the proceeding — A practitioner who has entered
his appearance at the hearing shall not be permitted to
withdraw from the hearing, or willfully to absent himself
therefrom, except for good cause and whenever prac-
ticable, only with the permission of the presidilng officer.
If a party or the person representing him shall, after enter-
ing an appearance, attempt to withdraw from the hearing
in a manner other than that specified in paragraph (b) of
this section, the Commission, on its own motion, or on
motion of any party to the proceeding, may take such ac-
tion as, in the interest of juistice and the protection of the
lawful rights of all parties to the proceeding, the cir-
cumstances of the case may warrant, including the striking
out of all or any part of any pleading of the offending par-
ty, — or the disciplining of the practitioner concerned.”
Counsel MacDougall appeared on behalf of the United
Transportation Union and filed the written statement on
its behalf. He attended the hearing on March 6 and 7,
1978, absented himself without excuse on March 8 and 9,
1978, reappeared on March 10, 1978, and absented him-
33a
self intentionally and without excuse on March 13 and 14,
1978. During his absence, Mr. Simmons, assistant state
director of the Illinois state legislative board, a full-time
employee of the United Transportation Union (who made
an initiah appearance, with the comment that he was
represented by counsel MacDougall), was in attendance
and participated on behalf of the union. Statements by
several members of this union were presented on March
13, 1978, by counsel for the American Train Dispatchers
Association on behalf of counsel. Mr. Swabowski made
an appearance for the Illinois Commerce Commission on
March 6, 1978, but did not otherwise attend, examine, or
present witnesses. Mr. Blackwood appeared for the State
of Illinois on March 6, 1978. He was present on March 6,
10, and 13, 1978, and participated in cross-examination of
witnesses but was not present on March 7, 8, 9 and 14,
1978, and presented no witnesses on behalf of the State.
He was not excused from attendance and did not seek to
be excused (initially on March 6 he stated he has other
matters scheduled for March 8 and 9 but near the close of
the first day also stated he would not attend on March 7).
As noted, a prehearing conference was held in April of
1977. No report was issued, apparently because of the
Judge’s departure from this agency. Although the matter
was set for hearing without any further comment upon
items discussed at the prehearing conference, such as
prefiling of evidentiary statements, the compiaining par-
ties made no timely, formal effort by motion or petition to
clarify matters or obtain relief they sought necessary. At
the hearing, the parties were allowed adequate time to ex-
amine applicant’s statements (the longest of eight state-
ments was 12 pages), including a 2-hour and 40 minute
recess starting at 10:50 a.m. on the first day of hearing
(statements were distributed prior to the start of the hear-
34a
ing). No showing is made of how the lack of provision for
prefiling adversely affect these parties. No showing is
made to justify their lack of diligence in seeking ap-
propriate relief prior to the start of the hearing and it ap-
pears that such failure, followed by their susbsequent ac-
tions, could be found to constitute an attempt to take un-
fair procedural advantage of applicant in a manner that
would affect the timely disposition of the proceedings.
The hearing assignment notice of the Commission dated
December 14, served December 21, 1977, specifically
stated an assignment for hearing on the 6th day of March
1978 (1 week), and that it was “A tentative time allow-
ance.” It also stated: “Pursuant to Rules 66 and 86 of the
General Rules of Practice, all parties should be prepared
to present oral argument, in lieu of briefs, at the conclu-
sion of the hearing if so ordered by the presiding officer.”
At the beginning of the hearing, the parties were allowed
to state their views with respect to scheduling of witnesses
and labor witnesses were deferred on the first day of hear-
ing because of the United Transportation Union’s desire to
have time available to prepare its presentation after hear-
ing railroad witnesses. The term “tentative time allow-
ance” of | week clearly implied that the matter could go
for more than 5 days, no persuasive reasons were given
that would justify a delay in the hearing between presenta-
tion of applicant’s and protestants’ evidence, and the
record produced nothing that otherwise would warrant
any such recess. Moreover, the Chairman of this Commis-
sion announced on September 30, 1977, that strict time
limits would be implemented (specifically applicable to
this type of proceeding), and that:
Exceptions to our policy of strict adherence to
procedural schedules will be granted only in
those rare instances where it appears that the
35a
public equity or justice will be served. Absolutely
no extension request, based on a practitioner’s
work schedule, such as absence from the office,
vacation, or work on other proceedings, will be
accepted.
And, as noted, neither the Illinois Commerce Commission
nor the Illinois Environmental Control Division present
direct evidence, they gave no indication that they would do
so at any future time, and they, likewise, showed no
reason why any continuance was necessary.
The notice of hearing clearly advised the parties to be
prepared for oral argument in lieu of briefs. Applicant
chose to so proceed, and several protestants also desired
such a procedure. As an accommodation to the parties,
this Administrative Court allowed anyone so desiring to
put its argument, in written form, in lieu of any oral
presentation, to be submitted 3 weeks after the close of the
hearing. Obviously, it was within the Court’s discretion
not to allow briefs. Also, to allow these protestants time to
obtain and examine the transcript would defeat the intent
of having argument at the close of the hearing and it
would be prejudicial to applicant and other parties that
were prepared to abide by the Commission’s notice and
rules.
Regarding the Court’s “attempts to require counsel for
some of the protesting parties to defer to others”, it is con-
cluded that no parties were prevented from presenting
evidence or conducting cross-examination that was rele-
vant, material, or non-repetitious; that the parties were
given more than adequate opportunity to arrange mutual-
ly acceptable scheduling of witnesses and the order of
cross-examination; and that any ruling or instructions in
36a
this area were consistent with the presiding officer’s duties
to regulate the course of the hearing under section 556 of
the Administrative Procedure Act.
Turning next to the L&N-MoPac operating agreement,
it is observed that production of this document first was
sought at the prehearing conference by the United
Transportation Union, the document was sent to the then
presiding officer, no ruling was made regarding its submis-
sion, and no party made any formal effort prior to the
hearing otherwise to require its disclosure. The request to
examine it was renewed at the hearing; however, applicant
claimed privilege because of sensitive commercial and
financial data. The Administrative Court attempted to
make the document available for counsels’ view only; but
union counsel declined that condition and declined to ex-
amine it subject to a protective order limiting the use of
any information gained to purposes of this proceeding on-
ly. The Jocument was reviewed by the Judge; the parties
were given a brief summary of the contents that noted that
the agreement provides rights and responsibilities for the
L&N in Yard Center and makes labor protective provi-
sions applicable to the L&N; and, in view of the nature of
the agreen.ent and the applicant’s claim of privilege, it was
ruled that the agreement not be open to general inspection.
It is concluded that these complaining parties had a fair
opportunity to examine the agreement subject to protetive
conditions; that they voluntarily chose not to avail
themselves of the opportunity; and that no valid basis ex-
ists for vitiating applicant’s claim of privilege.
Matters relative to environmental considerations and
the cross-examination of witness Vierling will be covered
below. In summary, it is concluded that the complaining
parties have failed to show that the hearing was conducted
in a manner that denied them of a full and fair hearing.
The development of a fair record, with proper representa-
37a
tion of public interest has been achieved as a result of a
candid and fair presentation by the applicant and the able
presentation of other parties especially those representing
the Villages of Dolton, Lansing, and South Holland. The
remedy for any asserted, detrimental results, was within
the control of the complaining parties through the exercise
of diligent, competent representation under this Commis-
sion’s rules. Accordingly, the rulings made at the hearing
are affirmed. In view of the circumstances and the failures
of counsel Blackwood, MacDougall, and Swabowski
relative to Rule 69 regarding attendance at the hearing, it
is considered necessary to admonish counsel that in con-
formance with the criteria of part (6) of that rule, future
pleadings will be subject to a motion to strike by any party
or on the Commission’s own motion.
FACTUAL BACKGROUND
The nation’s rail network tends to center on the Chicago
metropolitan area with approximately 37 routes, 2,000
miles of right-of-way (with over 4,000 highway-railway
crossings, less than half grade-separated), and 134 rail
yards. Although none of the parties have presented
evidence in respect to a comprehensive 1995 Transporta-
tion System Plan for the Chicago Area,’ information from
this study is referred to in the Final Environmental Impact
Statement and it reveals that the objectives of the freight
system involve the consolidation of rail right-of-way and
terminal facilities in the existing system. Also intended is
the streamlining of the present assertedly overextended
system into one which is economically and operationally
viable. Planned consolidation would be accomplished
through the concentration of freight activity in specific
?Chicago Area Transportation Study. Recommendation for the
Chicago Area Freight System for 1995. 1976 and 1995 Transportation
System Plan Annual Update, March 1976.
38a
localized sites and the joint use of physical facilities.
Under the proposal, both the South Hammond, Ind., and
Yard Center, Ill., yards involved herein ultimately would
be eliminated.
As noted, the purpose of the involved trackage rights
application is to allow the L&N to reroute traffic presently
handled at its South Hammond yard to Yard Center in II-
linois. The latter yard is operated by the MoPac under an
agreement which provides essentially equal rights and
responsibilities for applicant L&N. Pertinent traffic of the
L&N presently is handled over connecting rail lines to the
north of the South Hammond and Yard Center locations.
Under the proposal, pertinent L&N traffic would move
over a shorter route south of these yards utilizing an ap-
proximate 6-mile segment of the Grand Trunk Line from
Munster, Ind., (a few miles south of the South Hammond
yard), through Lansing, IIl., to South Holland, IIl.
As pertinent, the L&N operates two essentially parallel
routes south of Chicago. The easternmost (the Monon
line), runs through South Hammond and western Indiana
to Louisville, Ky., while the westernmost line (Evansville
route), extends through Yard Center, eastern Illinois, and
western Indiana to Evansville and the Kentucky State line,
with connections, in both instances, to L&N lines in the
southeast. Applicant will continue to operate the Monon
line in the Hammond area and it will provide service to
shippers and receivers located there; however, all car
classification and switching would be made at Yard Center
and approximately seven daily cars for South Hammond
industries would be handled by a train out of Yard Center.
Applicant has a newly modernized yard facility at
Louisville and traffic between Chicago and Louisville (and
beyond points) is routed over the Monon line. Its present
share of this type of traffic (with allowances), would
39a
average one 104 car train northbound and one 90 car train
southbound daily to be rerouted through Yard Center.
The northbound train would arrive through the South
Holland end of the yard in the early morning hours and
the southbound train would depart during evening hours
(also, after or before classification, the trains apparently
would both leave and arrive through Dolton during
daytime hours). Trains will be made up of preblocked ar-
rangements of cars to facilitate switching and it is an-
ticipated that classification and transfer functions will be
enhanced and will result in faster service and improved in-
terchange.
Applicant estimates that total net startup costs would be
$1.2 million, including allowances for track work of
$263,000, signal work of $623,000, and labor protection
costs of $500,000. Annual net operating savings are
calculated to be $300,000, based upon evaluation of 1977
costs of $1.8 through South Hammond as compared with
costs of $1.5 million through Yard Center.
The Grand Trunk, in support of the application, in-
dicates that it runs 18 trains (plus one yard train) daily
over the trackage rights segment. It estimates that each
grade crossing blocked would be somewhat over 2
minutes, that proposed improvements with the installation
of new power control switches could improve existing
grade crossing blockage problems, and that the additional
two daily trains would not be considered to be a significant
increase in train operation over the line. Past problems
have occurred where trains are held on the line at various
hours, with attendant engine noise as well as communica-
tion noise, prior to trains being able to enter the con-
necting track at Thornton Junction (with, in effect, the
Evansville line), which leads into Yard Center in South
Hammond.
40a
Between Thornton Junction and Yard Center lies the
site of a proposed automobile unloading facility which the
MoPac plans to operate. As discussed below, this plan is
the subject of litigation between MoPac and the Village of
South Holland.
Yard Center is substantially larger than the South Ham-
mond yard and it is considered that its multiple track
layout has adequate capacity to absorb the 62,000 annual
cars that would be added as a result of the proposed ac-
tion. For a number of years, activities at Yard Center were
at a minimal level and it appears that community ac-
tivities, and the usage of non-railroad land near the yard,
were coexistant without serious conflict. Several years
ago, for a number of reasons, usage of the track to and
from Yard Center and switching and classification ac-
tivities at the Yard substantially increased. At the same
time, changes took place in the South Holland area with a
demise of farming-type activities and an increase in
population and industrial land usage. Yard Center extends
for a distance of 2 miles in a north-south direction. A
grade crossing exists beyond the northern end of Yard
Center, in Dolton, near a point where track of railroads
other than those involved herein cross applicant’s line. (In
fact, Dolton, South Holland, Lansing and South Ham-
mond are substantially crisscrossed with lines of the Grand
Trunk and eight or more other railroads.) Moving south,
144 St. in Dolton has a grade crossing over several tracks
at the start of the area of concentrated switching. A school
and shopping centers (as well as the Village of Riverdale),
are located to the west, while the main part of Dolton (in-
cluding fire, police, and related services), are to the east.
The Dolton-South Holland portions of Yard Center are
divided by Sibly Blvd., which provides a non-grade east-
west crossing (however, blockages at grade crossings fre-
quently divert such a volume of traffic, that this routes ef-
4la
fectiveness for use by emerging vehicles is severely curtail-
ed). The next east-west crossing is approximately 1.25
miles south of Sibly Blvd., at U.S. Highway 6 in South
Holland at the south end of Yard Center. It is a main east-
west road and is a non-grade crossing. Thornton Junction
is approximately .6 miles south of U.S. Highway 6. The
southwestern corner of South Holland (including a
residential area and two principal schools), is separated
from the rest of the village by the Grand Trunk lines and
crossed with two grade crossings. Almost a mile south of
Thornton Junction is the east-west Tri-State Tollway (In-
terstate 80 and 294). Another major route, the Calumet
Expressway (Interstate 94), runs north-south on the
eastern borders of South Holland and Dolton at a distance
of approximately 1.75 miles from the Yard Center com-
plex.
Applicant has assessed the effect upon employment and
determined that most employees at South Hammond (ex-
cept crossing watchmen-type personnel), can be absorbed
into the increased workload at Yard Center (or other loca-
tions based upon existing seniority options) and that total
costs for labor protection would be less than $.5 million
and would not extend beyond a 2-year period. Consolida-
tion of forces is involved under the circumstances involved
and applicant would protect employees under modified
New Orleans conditions.* It is noted that any effect on
locomotive engineers would be a shifting in their reporting
point a distance of 7 miles.
Although the rights and responsibilities for use of Yard
Center are shared by both MoPac and applicant L&N, ac-
tual operations are under the direct control of MoPac. The
3See Norfolk and Western Ry. Co. - Trackage Rights - BN, 354
I.C.C. 605 at pages 607 and 608.
42a
superintendent of the joint facility is technically a joint
employee of both lines and the cost of his salary is
allocated between the two; the check is a MoPac check and
he is a 30-year veteran of service with MoPac and its
predecessor. In his opinion, the yard can handle the con-
templated additional traffic without problem or ap-
preciable adverse effect upon the yard’s operating efficien-
cy. As superintendent, he only has been incidentally made
aware of police ticketing of trains for excessive crossing
blockage, he is only incidentally aware of noise com-
plaints, and he apparently bears or accepts no respon-
siblities in relation to actions taken or not taken by
MoPac relative to environmental or public safety matters.
Based upon the superintendent’s testimony, it is found
that except for information on the physical handling of
trains and cars he is not shown to be qualified to provide
creditable, probative testimony regarding either the
MoPac’s or the L&N’s overall operations of Yard Center.
Applicant presented no other witness qualified to testify
concerning Yard Center.
As noted below, some other information relating to
Yard Center was provided by a MoPac vice president in
response to its appearance regarding its petition to in-
tervene. This witness’ testimony also requires a finding
that despite his title and theoretical responsibilities he is
not shown to be knowledgeable and qualified to provide
creditable, probative testimony pertaining to the opera-
tions of Yard Center.
Environmental concerns, especially with respect to noise
pollution, led to action by State and local bodies which
resulted in a proceeding involving studies and testimony
regarding the noise problem at Yard Center and a decision
finding violation of noise control ordinances. A 10-foot
high earth beam was constructed near one portion of the
43a
yard in South Holland and a few small deciduous trees
were planted in apparent response to the decision.
Numerous local residents, school officials, fire, police,
and emergency medical service personnel, and public of-
ficials testified regarding conditions at Yard Center and
other rail locations that could be affected by additional
traffic as a result of the application. This evidence shows
that grade crossings are frequently blocked for excessive
periods of time (frequently in violation of local or-
dinances), and that this causes serious problems with
respect to the safety (and timely attendance), of school
children, the provision of fire, police and emergency
medical services, general safety, and inordinant waste of
time (and energy). It also is shown that noise levels are
such that they provide a high level of annoyance and in-
terfere with both indoor and outdoor activities. Special
concern is expressed over late night or early morning noise
and that generated by specific actions such as the reving
and idling of locomotives (especially at locations outside
of Yard Center), coupling, decoupling, and marshalling
noises, and amplified communication between employees.
It also is shown that neither MoPac nor Yard Center pro-
vides reasonable access for communication between the
public and the rail operation and, in fact, no feeling of
concern or evidence of a cooperative climate is considered
to exist.
A major probiem area exists in providing fire services to
Yard Center itself. Fires have occurred there in the recent
past where the nearest water supply was some 600 feet
away. Some fire hydrants exist on yard property but they
essentially are inoperative and Yard Center has not
cooperated in attempts to have the situation corrected.
44a
MOPAC INTERVENTION
Witness Vierling, the vice-president of the eastern
region of the MoPac, was presented in response to the
Commission’s order that it be required to participate in the
proceeding in order to provide some explanation of why
the grounds raised in its petition to intervene in opposition
to the title application are no longer vatid, as claimed in its
attempt to withdraw.
Prior to the adjournment of the hearing on Friday
March 10, the Judge asked that any parties who wished to
cross-examine Mr. Vierling prepare copies of questions
they would like to ask for submission to the Judge and
counsel on Monday March 13, when the witness was to be
called. Questions were prepared by the Villages of Dolton,
Lansing, and South Holland. They were made available to
counsel for MoPac over the noon recess of 1 hour and 45
minutes prior to Mr. Vierling’s testimony (and subject to
the provision that the witness could not be informed of the
questions). When the afternoon session began, the ques-
tions were reviewed as to relevancy and repetition, some
were excluded and examination was held. Basically, ques-
tions were limited to those relevant to the Commission’s
order concerning the MoPac intervention. In addition to
pre-listed questions, other followup type questions and
various clarifying questions also were allowed. In response
to the noted objections of the Illinois Environmental Con-
trol Division, it is considered that they were necessary to
regulate properly the course of the hearing and to provide
for the exclusion of irrelevant and immaterial evidence.
Also, the complaining party failed to even attempt to
outline the areas of its interest in this witness and it did not
bother to participate in his examination. Accordingly, it is
hardly in a position to assert that it has been denied a pro-
per hearing.
4Sa
The record shows MoPac sought to intervene and then
sought leave to withdraw. On December 17, 1976, in the
MoPac petition to intervene, they stated that the yard is
quite often extremely congested. That the application, if
granted, would increase congestion, would reduce effi-
ciency, would interfere with interstate through trains,
would interfere with interstate traffic into and out of Yard
Center, would substantially increase the cost of operating
Yard Center and joint lines, and would aggravate and pro-
liferate the environmental and highway crossing problems.
The intervention pleading was prepared under the direc-
tion of Mr. Vierling, who, at the hearing, testified that
MoPac had changed its position because it originally
misunderstood what trains the L&N proposed to operate
in and out of Yard Center and failed to understand that
the L&N had proposed the installation of power switches
at Thornton Junction and power crossovers between
various running track. With an understanding that only
two daily trains each would be involved and with the in-
stallation of power switches, it appears that level of in-
terference would be considered insignificant.
Mr. Vierling formerly had testified on behalf of MoPac
in 1976 in court in Illinois in a matter involving litigation
filed by South Holland regarding environmental pro-
blems, primarily noise pollution, in the operation of Yard
Center. The witness reluctantly agreed that he was aware
of requests by the Commission’s Section of Energy and
Environment concerning information regarding a propos-
ed automobile unloading facility to be located on Mo-
Pac land in South Holland along the track between
Thornton Junction and Yard Center. The subject of that
facility is a current matter of court litigation in Illinois bet-
ween MoPac and the Village of South Holland. Such in-
formation was not provided; however, under examination
46a
the witness did reveal that the facility would process some
30 to 35 rail cars daily. He did not know whether that
figure included both empty and loaded cars, thus the total
number of in and out cars involved daily could be in the
60-70 car range.
Mr. Vierling could not recall numerous aspects of mat-
ters pertaining to the operation of Yard Center and his
railroad’s relationship with L&N and its involved ap-
plication. No probative information was volunteered
regarding the operation of Yard Center in respect to abili-
ty to control and handle additional trains and cars or in
respect to the MoPac’s willingness and ability, as the entity
responsible for Yard Center, to conduct operations in a
manner consistent with local public interest, especially in
relationship to fire hazards, traffic congestion and other
aspects of public safety, and noise pollution.
ENVIRONMENTAL CONSIDERATIONS
Under the provisions of the National Environmental
Policy Act of 1969 (NEPA), 42 U.S.C. § 4332 (1970), the
Commission has the duty to actively take appropriate step
to comply with its responsibilities under that statute. Here,
a Final Environmental Impact Statement was prepared
which detailed the Commission’s considerations in ap-
proximately 100 pages of text and charts, 27 pages
regarding comments on the Draft Environmental Impact
Statement, and 54 pages of appendices. Two witnesses
from the Commission’s Section of Energy and Environ-
ment responsible for preparation of the study, were made
available and subjected to almost a full day of cross-
examination. In addition, the independent consultant in-
volved in noise studies covered in the statement spent a
half day undergoing examination. The environmental im-
pacts were summarized as follows:
47a
The proposed action would allow applicant’s
planned elimination of its South Hammond,
Ind., marshalling yard and consolidation of
classification activities at Yard Center, Ill. Rail
operations would increase at Yard Center by the
addition of two trains a day via the GTW line.
The increase in freight traffic would exacerbate
existing noise, traffic, and safety problems in the
affected communities. Some localized increases
in air pollutants would also occur and the pro-
posed action might open the way for more rail
traffic in the future, depending on industrial
development and unforeseen changes in rail traf-
fic patterns.
The environmental benefits of this action
would be regionally oriented in that classification
operations at South Hammond would be elimi-
nated, resulting in the removal of the noise, traf-
fic, and safety problems associated with these ac-
tivities. A land resource could be made available
for public use. Furthermore, an overall savings
in fuel consumption, as well as a net reduction of
air pollutants, could be realized since much of
L&N’s traffic would be moving over a shorter
route. The proposed action would be commen-
surate with land use plans at South Hammond
and regional transportation goals.
Also, three alternatives to a complete approval of the
proposed action were offered and discussed, including (1)
denial of the applications, (2) imposition of conditions to
prohibit consolidation of switching activities at Yard
Center, or (3) imposition of requirements for noise abate-
ment plans.
48a
Several parties challenge the adequacy of the Final
Statement and object to its receipt as an exhibit. Converse-
ly, the United Transportation Union also objected to the
failure to identify and receive the Commission’s Draft En-
vironmental Statement.
First, it is noted that both statements have been placed
in the docket and are part of the record without the
necessity of formal submission. Secondly, the Final State-
ment, when subject to cross-examination, properly should
be identified and received (or rejected) as an aid to effec-
tive regulation of the hearing. The Initial Statement, in ef-
fect, is merely an underlying document upon which the
Final is based, and need not itself be formally received.
Moreover, the portion in the Initial Statement (but not in
the Final), which the Union is concerned, concerns a
recognition of the fact that a complaint proceeding is
pending in Finance Docket No. 28480 involving applicant
and the ownership of the Monon branch line. This is a
matter of official knowledge. Moreover, the complainant
in that case, the Southern Railway Company, had sought
to intervene in the instant proceeding stating that
divestiture of the former Monon lines from the L&N could
be ordered and that the Southern would then seek to ac-
quire those lines. By order of the Commission, Commis-
sioner Christian, decided December 23, 1977, it was found
that to allow Southern to raise this issue would unduly
broaden the issues presented and leave to intervene was
denied.
Next, it will be restated that the receipt into evidence of
the Final Statement is restricted to the issue of the Com-
mission’s responsibilities under NEPA. The recitation of
statements and factual type conclusions therein, unless
otherwise presented by involved parties and subjected to
procedural safeguards through cross-examination of
49a
responsible witnesses, is not entitled to probative weight in
respect to any issue other than a finding under the NEPA.
Some concern is voiced over the identity of the consul-
tant utilized by the Section of Energy and Environment to
conduct studies relative to noise pollution, inasmuch as at
a prior time he served in a similar capacity for the appli-
cant in a local environmental proceeding. Also, it was
developed that the section arranged for applicant to pay
the consultant for his efforts (because of apparent budget
type constraints that might have resulted in a limitation of
the scope of the environmental investigation). The consul-
tant’s credentials were checked with both the national and
regional offices of the Environmental Protection Agency,
with resulting positive recommendations, the section was
aware of his prior services, and conditions were expressed
disallowing contacts with the applicant and controlling
aspects of the safety programs.
Although the Commission’s employment of a consul-
tant with a past relationship with the applicant, without
the concurrence of other parties, has resulted in an oppor-
tunity for the raising of not unreasonable questions of
concern, it is concluded that the record shows that the con-
sultant is a responsible professional engineer employed by
an independent non-profit research organization and that
his contributions to the environmental statement are based
on professional, unbiased standards and entitled to full
probative weight in that respect.
Next, it is observed that a Federal action that may be
considered to have certain negative effects.on local condi-
tions is not the equivalent of a major Federal action
significantly affecting the quality of the human environ-
ment under the NEPA. Accordingly, the existence of local
environmental problems does not mandate an adverse en-
vironmental conclusion. The problems must relate (1) to
50a
the proposed Federal action, and (2) to overall regional or
national concerns, as well as local. Here, environmental
concerns and adverse conditions essentially are preexis-
tent. They will not change in a “significant” way by the ad-
dition of the trains and cars to be switched or moved
through Yard Center under applicant’s proposal. Also, the
negative effect upon Dolton, South Holland, and Lansing
are counterbalanced by a positive environmental effect
upon the Hammond area and a slight benefit in relation to
air quality and fuel consumption (because of traffic mov-
ing over a shorter route). Noise and traffic congestion
related to rail traffic would increase, especially in the Yard
Center area; however, the impact, in relation to existing
conditions, would not be consequential on an overall
basis. Also, grade crossing problems and attendant safety
concerns would intensify, but only to a slight degree, while
the adverse effects on some existing traffic problems ac-
tually might be improved with the proposed installation of
new switching and control devices on the existing tracks.
Increase in train traffic would be an effect that could
not be avoided; however, the related effects of additional
noise and congestion could be modified to some degree by
the imposition of controlled operational habits (for exam-
ple, conditions affect idling of engines at exposed loca-
tions for excessive periods or at late hours; holding open
of crossing gates when a switch engine will approach but
not cross a grade crossing; safety of school children and
other pedestrians could be enhanced by the construction
of less costly pedestrian overpasses at such locations as
144th Street in Dolton and 170th Street in South Holland;
and additional over-underpasses could be constructed at
grade crossings of the involved lines, or other lines that
contribute to tieups in these communities. A grant would
lead to the probable removal of the South Hammond Yard
as a land resource available to rail transportation;
5la
however, alternate use in the form of park development or
other non-railroad use would be likely. The short-term ef-
fect of the action could increase local Illinois problems. In
the long term it could promote efficiency in rail operation
through the consolidation of switching operations and
movement over shorter routes; however, it is not really
shown how the latter concept actually fits into regional
planning concepts inasmuch as Yard Center would be
eliminated under the recommended 1995 Transportation
System Plan for the Chicago area. The Final Environmen-
tal Impact Statement is considered to adequately satisfy
the Commission’s responsibilities under the NEPA.
Under these circumstances, the receipt of the Final En-
vironmental Statement is affirmed; the conclusions therein
are adopted (except as modified above); and it is conclud-
ed that the proposed trackage rights application (and at-
tendant connecting line construction), are not shown to in-
volve matters that require a finding that the proceedings
be found to involve a major Federal action significantly
affecting the quality of the human environment within the
meaning of NEPA.
CONCLUSIONS
A trackage rights application can be approved if it in-
tially is found that subject to such terms and conditions,
and such modifications as are found to be just and
reasonable, it falls within the scope of section 5(2)(a) and
will be consistent with the public interest. Section 5(2)(c)
requires that weight be given to four factors: the effect of
the proposed transaction upon adequate transportation
service to the public; whether other railroads should be in-
cluded (not applicable herein); total fixed charges (also in-
applicable herein); and the interest of affected carriers
employees.
$2a
While the Commission’s prime area of concern is the
“public interest” in the broadest sense and thus considera-
tion of a matter’s affecting interstate commerce beyond
merely local interests, issues of local public health, safety,
and environment properly must be considered in the con-
tent of the Commission’s overall evaluation of the stan-
dards under which a trackage rights application must be
judged.
On the other hand, this proceeding is not the proper
forum for exploration of matters collateral to the noted
controlling issues. It is not the time or place to question
the prior merger proceeding in which applicant was involv-
ed or to interpret labor agreements affecting that opera-
tion. It is not the place to question the adequacy of rail ser-
vice to South Hammond receivers. It is not the proper pro-
ceeding in which to establish or enforce Federal noise stan-
dards for rail yards. And, it is not the proper forum for
the State of Illinois and local communities to mount col-
lateral attacks on environmental matters based upon their
apparent inability to prosecute or enforce local or-
dinances.
A review of the record in the light of the pertinent
criteria leads to the conclusion that approval of the pro-
posal would result in the elimination of duplicating rail
facilities and could result in more efficient and economical
operations (with attendant savings), if it also could be
found that applicant is able to ensure that Yard Center
would be operated in the manner proposed. It also is con-
sidered that the interests of affected carrier employees
would be appropriately protected.
Here, applicant has not shown that it has the ability to
control or influence the control of operations and condi-
tions at Yard Center (and attendant tracks), such that the
Commission could reasonably conclude that the proposed
53a
benefits would actually accrue. It has not shown that the
conditions and day-to-day operations of Yard Center are
consistent with acceptable levels of local public health,
safety, and noise pollution factors and it is not shown that
it has the ability to control or influence the implementa-
tion of acceptable conditions that would be required to be
imposed. To the contrary, this record indicates an appall-
ing lack of sensitivity and concern with public health and
safety, noise pollution, and community relations on the
part of the operators of Yard Center. Among many
others, two things stand out as examples in support of the
latter conclusion. These are the condition of the fire
hydrants in Yard Center (and management’s apparent lack
of interest in corrective measures), and management’s
“token” noise pollution control efforts in installing inap-
propriate and insufficient plant material. As noted by a
witness, the planting efforts were so grossly inadequate as
to be an insult to the people of South Holland. Of course,
the deficiencies in fire fighting facilities have been of
especially high public concern as a result of recent publici-
ty given to derailments and fires in other parts of the coun-
try.
For the above noted reasons, it would not be ap-
propriate to grant the application subject to the imposition
of conditions, however, it is noted that the record supports
the imposition of conditions of the following nature as
minimum just and reasonable requirements for approval
of the application: (1) complete rehabilitation of the Yard
Centers fire hydrants and water mains to standards accep-
table to the Villages of Dolton and South Holland, (2)
development of plans to more effectively control and
reduce grade crossing blockage, including provisions for
immediate emergency access to the control function by
public safety officials, (3) joint construction with the
Villages of Dolton and South Holland of pedestrian over-
54a
passes at 144 St. in Dolton and 170 St., in South Holland,
(4) development of plans to regulate and control the place-
ment of idling equipment, (5) limitation to switch engines
with lower noise emission ratings, (6) development of a
plan and installation of an extensive system of suitable
noise barriers around Yard Center, (7) designation of a
specific official and an alternative to be responsible for
Yard Center and related activities and facilities and the
provision of access to these persons by appropriate local
governmental officials, and (8) designation of a communi-
ty relation representative with plans for the provision of
timely receipt of an action on complaints.
As noed, the Commission has been given no reason
whatsoever that would support a finding that applicant or
MoPac could nor would implement and abide by condi-
tions that would be required prior to approval of the pro-
posal and, accordingly, it is concluded that applicant has
failed to affirmatively satisfy its burden of proof and that
the application must be denied.
Turning to the embraced proceeding and the request for
authority to construct and operate a connecting track at
Munster, it is concluded that this matter, governed under
the public convenience and necessity standards of section
1(18) of the Act, is directly related to the trackage rights
proposal. Inasmuch as that has not been approved, there
is no need for the connecting track and the application will
be denied. In the other related matter, the withdrawal re-
quest by MoPac, it is concluded that sufficient cause has
been shown (and explained), to warrant the relief sought
and it is hereby permitted to withdraw.
Finally, it is observed that the necessary conclusions
made herein merely act to leave the parties where they
were prior to the applications. No improvement in rail
55a
facilities and service will be made, no improvements will
be made in the Hammond area, and there need be no
health, safety, and environmental improvements made in
the Dolton-South Holland area. What on the surface is a
reasonable, minor proposal for the rerouting of two daily
trains must be denied because of the actions or non-
actions of a “third party”, that have resulted in an aliena-
tion of community relations. Although other forums do
exists for the resolution of community-railroad problems,
it is suggested that a voluntary approach to the matters
listed above as feasible conditions, by the owners of Yard
Center and the involved communities, could go a long way
toward enhancing conditions for the railroads and the
local public. And, on a more formal basis, it further is
suggested that the time may be ripe for a review by the
area railroads, the State of Illinois or other Chicago area
organizations and this Commission’s Rail Services Plan-
ning Office of the area’s future carload and classification
yard system as set forth in the Chicago Area Transporta-
tion Study, infra. Should this review indicate a need for
timely action, an appropriate effort should be taken to in-
stitute a formal investigation proceeding by this Commis-
sion so that any future proceedings of this nature involv-
ing the Chicago rail crossroads might be evaluated on a
record where probative information is available to allow
proper consideration of the overall effect of the proposed
action on rail service in the involved territory.
FINDINGS AND ORDER
Upon consideration of the record, it is found that in
Finance Docket No. 27972 the proposed acquisition of
trackage rights by the Louisville and Nashville Railroad
Company on a 5.6-mile segment of the Grand Trunk
Western Railroad Company mainline between Munster,
56a
Ind., and Thornton Junction, IIl., is not shown to be con-
sistent with the public interest; that in Finance Docket No.
28464, the public convenience and necessity is not shown
to require or be enhanced by the construction and opera-
tion of a connecting track between the Grand Trunk
Western Railroad Company and the Louisville and
Nashville Railroad Company at Munster, Ind.; that this
decision is not a major Federal action within the meaning
of the National Environmental Policy Act of 1969; and
that the applications should be denied.
It is ORDER of the Administrative Law Judge, that the
applications be, and they are her... y, denied.
Dated at Washington, D.C., this 7th day of July, 1978.
By the Commission, Richard H. Beddow, Jr., Ad-
ministrative Law Judge.
/s/ Nancy L. Wilson
Acting Secretary
57a
United States Court of Appeals
FOR THE SEVENTH CIRCUIT
Chicago, Illinois 60604
April 24, 1980
Before
Hon. LUTHER M. SWYGERT, Circuit Judge
Hon. PHILIP W. TONE, Circuit Judge
Hon. NICHOLAS J. BUA, District Judge*
PEOPLE OF THE STATE OF ILLINOIS, et al.,
Petitioners,
No. 79-1454
VS.
INTERSTATE COMMERCE COMMISSION and
UNITED STATES OF AMERICA,
Respondents.
LOUISVILLE AND NASHVILLE RAILROAD COMPANY,
Intervening-Respondent.
ON PETITION FOR REVIEW OF AN
ORDER FROM THE INTERSTATE
COMMERCE COMMISSION
This cause came on to be heard on the transcript of the
record froin the Interstate Commerce Commission, and
was argued by counsel.
On consideration whereof, it is ordered and adjudged
by this court that the order of the Interstate Commerce
Commission in this cause be, and the same is hereby, AF-
FIRMED, with costs, in accordance with the order of this
court entered this date.
*Honorable Nicholas J. Bua, U.S. District Court Judge for the
Northern District of Illinois, is sitting by designation.
58a
United States Court of Appeals
FOR THE SEVENTH CIRCUIT
Chicago, Illinois 60604
June 5, 1980
Before
Hon. LUTHER M. SWYGERT, Circuit Judge
Hon. NICHOLAS J. BUA, District Judge*
PEOPLE OF THE STATE OF ILLINOIS, et al.,
Petitioners,
No. 79-1454
vs.
INTERSTATE COMMERCE COMMISSION and
UNITED STATES OF AMERICA, -
Respondents.
LOUISVILLE AND NASHVILLERAILROAD COMPANY,
Intervening-Respondent.
PETITION FOR REVIEW OF AN
ORDER OF THE INTERSTATE
COMMERCE COMMISSION
On consideration o. the petition for rehearing filed in
the above-entitled cause by counsel for the petitioners, a
majority of-the judges on the original panel having voted
to deny the same,
IT IS ORDERED that the aforesaid petition for rehear-
ing be, and the same is hereby, DENIED.
*The Honorable Nicholas J. Bua, District Judge from the Northern
District of Illinois, Eastern Division, is sitting by designation.
The panel which decided the appeal consisted of Judges Swygert,
Tone and Bua. The petition for rehearing has been considered and
acted upon by the judges remaining on the panel after April 30, 1980,
the effective date of Judge Tone’s resignation.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.