*1 MacKINNON, Before ROBB and WIL- KEY, Judges. Circuit Opinion PER CURIAM. Dissenting opinion Judge filed Circuit WILKEY. PER CURIAM: D.C., F.Supp.
See also 7,1979 February On the Federal Railroad Administration issued 11 No. which characterized the entire miles of track of the Louisville and Nash- and, single ville Railroad as a basis of its “current” record with of hazardous materials, speed any restricted the train carrying hazardous materials to a maxi- *2 per miles speed operating expenses, mum of 30 hour and im- increased disrupted its operational posed other restrictions. The operation, reduced operating entire its fuel Gesell, Court, J., held that District efficiency and caused a loss of customers Emergency exceeded the Order of permanent have some conse- statute, under 45 quences. These facts are not controverted. 432, granted summary judg- U.S.C. and § Emergency issued February Order on Railroad, thereby restraining ment for the 7, reaching 1979 is the most far enforcing the FRA from its order. There- specific any Emergency least of Order ever stay after the court refused to the effec- Every previ- issued the FRA. one of injunction pending appeal. tiveness ously emergency issued 10 orders related to appealed stay and now moves for a specific pieces equipment or clearly des- pending appeal. denyWe the motion. ignated specified sections of track and I. THE ISSUANCE OF EMERGENCY particularized complained defects were ORDER NO. specified of and their location.2 Emergency placed Order No. 111 certain The FRA Emergency claims that restrictions on the movement of hazardous No. 11 conforms to the statutory authority materials over track owned or leased 432, set forth provides: in 45 U.S.C. § (hereafter Louisville and Nashville Railroad through testing, If inspection, investi- N), L & a railroad with miles of gation, or research pursuant carried out , track of which about 6000 miles is main or subchapter, Secretary to this deter- order, alia, branch lines. The inter restrict- any facility mines that piece equip- or carrying ed the movement of all any ment is in thereby unsafe condition and hazardous materials a speed that did not hour, emergency creates an situation per required involving exceed 30 miles partic- placement ular long empty of certain a hazard of death or injury persons consists, cars in certain it, and doubled the affected Secretary may immedi- required frequency inspections of track cou- ately order, issue regard without pled requirement with a that certain track provisions 431(b) of section of this inspected be on foot. title, prohibiting the further use of such or until the unsafe
The affidavit of the L & N’s assistant condition Subsequent is corrected. to the Operations, James I. Ad- Vice-President— ams, issuance compliance opportunity asserts that with of such this order in the short time that it was in review shall provided effect cost be in accordance the L & N several millions of dollars in with section 554 Title Appellants’ 1. Attachment C to proceed” signals Motion for a hood of “false clear” or “false Stay Pending Appeal. being vegeta- shown as a result of failure to cut signal tion that with interferes live wires. No. 1, 7, Orders: No. Flexi-Van Cars of Required freight removal of all with cars Transportation the Penn Central Co.—Cracked high carbon cast steel wheels because likeli- 2, center —still members. No. XJLX Tank by braking hood of derailments caused of these inadequacy cracking Cars —structural 8, overheating. —shell wheels due to No. 35 miles of possible leakage lading. of hazardous No. Susquehanna track of the New York and West- 3, transporting Explosives Cars Class 4 Ry. Overage (majority —cars ern cross ties installed low-sparking with brake shoes. No. Track 1929-1932), inspections by no track railroad. Jeffersonville, Chicago, between Indiana and transportation No. Prohibited of hazardous prohibited passenger Illinois —419 miles — Corp. materials over Consolidated Rail track freight comply service for failure to covering Junction, 6.8 miles between Paritan , gauge, profile, ties, track constitution of defec- Jersey post post New at mile 19.7 and mile 26.5 rails, specific spe- tive ballast and other defects Edison, Jersey. New Insufficient number of cifically appendix (3 pages). identified in an inadequate inspec- non-defective cross-ties and 5, Handling No. of DOT 112A and 114A DOT (Appendix order). tions. attached to No. cars, uninsulated tank loaded with flammable Prohibited of hazardous materi- compressed gas. No. Illinois Central Gulf (Black Branch) als over carrails Rock Junction, track between Crick Missouri and posts (9.6 miles). between mile 389.7 and 399.3 Clark, (130 miles) Missouri because of likeli- (Emphasis added). The scheme of widespread this stat- “serious and safety deficiencies plain. Secretary throughout ute is Whenever the system to the Transportation, delegated who his authority materials, transportation of hazardous FRA, determines that an that these deficiencies create a constant and by “any facility piece situation is created or substantial risk to the health and *3 equipment [being] of ... in unsafe public.” 11, Emergency Order No. at 8 ” may condition he immediately without the added). (emphasis This falls short of the hearing by 431(b) called for 45 U.S.C. § specific finding that the statute requires prohibiting “issue an order . . . before the Administrator “[determine] further facility equipment use of such or any that . . . piece equipment is in until the unsafe condition is corrected.” allegations unsafe condition.” Also the widespread there are “serious and
The Order recites a number of derail-
safety
throughout”
deficiencies
the L
ments in
& N
years
recent
on the L & N that
system does not constitute a determination
involved cars carrying hazardous materials.
“any facility
The
.
.
is in unsafe
causes of these derailments were listed
4;
completely
as
condition ”.
In
it
follows: broken
fact
fails to
defective track
rail—
—7;
3;
facility.
broken
address the
equipment
defective
condition
wheel—
—1;
up journal 1;
“facility”
apparently
burned
claimed
that the Order
no cause—2.
—
10,600
In a
upon
number of the accidents hazardous
relies
is the entire
miles of L &
materials were released
N
onto
roadbed
tracks over which the railroad moves its
and into the air
freight
and caused loss of life and
carrying
hazardous materials.
injury
serious
many
to
individuals. The
memorandum,
prior
As we stated in our
memorandum opinion
accompanied
our
opinion
it is our
that the railroad tracks
26, 1979,
order of February
discloses these may
“facility”
be considered to be a
under
consequences
greater
in
detail.
Ry.,
statute. Munoz v. Porto Rico
Co.,
816,
Light
(1st
circumstances and the statistics cited
& Power
821
74 F.2d
in the
support
1934),
denied,
577,
order
a conclusion
L
that the
Cir.
cert.
296
56
U.S.
N
very poor
88,
However,
& had a
safety
(1935).
record in the
S.Ct.
The order here point any does not L N’s main line der with to the & particular “piece Flomaton, of equipment” that and Chatta- is un- between Alabama safe. alleges hoochee, Rather it (milepost that the L & N 607 main line has Florida egregious freight 3. The two most recent derailments in the enormous derailment of 80 cars nation, reports published July carrying from Pacific on the news- soda ash on the Union papers charged 31, reported were not to track conditions. 1979 was the railroad and the passenger Transportation The wreck of “The Crescent” have train National Board to 3, “clog the Southern Railroad on December in the brake line of the been caused a charged by (Denver was the Federal Railroad Adminis- train.” sixth car from the front of the exceeding speed Post, tration to 26). August p. limit on a curve (New Times, 5, 1978, 4)p. York December properly drawn directed to milepost end of Louisville connected owned). any persisting emergency.4 followed a This Nashville inspec- thorough inspection of the District Court con- This conclusion No. 11-—No- (FRA Emergency Order tors. analysis substantially forms with our own Emergen- June 5). Also on tice application Emer- of the statute and its Re- by a “Partial was amended cy Order gency Order No. to several identified as moval of Order” particularized requires more Section trackages as follows: of L & N segments particular or designation of Nashville, Tennessee between line [M]ain piece the Administrator Alabama, mile between Birmingham, in unsafe condition. The has determined is 386; Birmingham to Mont- 197 and posts permits statute that 485; posts mile 397 to gomery between any orders without hear- prohibitory issue Corbin, George Kentucky-Cartersville, *4 ing open is sesame for the Adminis- not an Nashville, 423); milepost (milepost to operation trator to take over the of (milepost Tennessee-Memphis, Tennessee support entire railroad unless he is able to a Nashville, F-370); milepost Tennes- 0 to substantially determination (milepost 7 see-Chattanooga, Tennessee the railroad is in “unsafe condi- 132); Montgomery, Alabama- milepost to permit tion.” The statute does not Orleans, (milepost Louisiana 485 to New gen- a brush Administrator to make broad 800.4); Birmingham, Ala- milepost allegation of unsafe condition of all eralized 397). (milepost milepost 386 to bama unsupported by the railroad’s track that is Emergency No. 11—Notice at 3-4. Order any specific factual demonstration and then operation proceed to hold the of all II. THE COURT ORDER DISTRICT compliance with hostage compel other OF JUNE demands of the FRA that are unrelated to On June 1979 the Honorable Gerhard piece any “facility the condition of or Gesell, Judge, District A. United States equipment.” of the Louisville and granted the motion argument At oral in the District Court judgment summary Railroad for Nashville counsel for admitted opinion in con- and issued a memorandum Emergency went prove facts that Order which stated inter alia as nection therewith which 432 beyond the “track” to authoriz- § follows: apply: ed it to sum, In the Court concludes that inspect We the track. Our indications Order, [Emergency Order No. February 7 inspected have been each time we have administered, vio- on its face and as 11] portion they say adequate, 432 that requirement lates the of Section it isn’t. solely “facility a or the Order relate go say, Then we back to them and being “in unsafe con- piece equipment” Conform that section of the track to the dition,” requirement of the further Sec- always regulations, which have existed prohibit “the fur- tion 432 that the Order exist, nobody disputes as and which far as until ther use of or [a] many you nails or whatever else use corrected,” how the unsafe condition is tracks, hold down the and the esoteric the dictates of the Fifth Amendment. with, familiar things that I am not nor may well still An situation counsel, nor the Court is famil- Plaintiff’s however, should, be dealt with exist. It with. iar specific terms. far more concrete and that, complied granted they you Once have Order exceeds question harder get 432 and then into the the Administrator under Section going put Nothing you segment whether are hereby illegal. declared to be of track back into effect because it deals prohibits herein the immediate issuance Sullivan, F.Supp. (D.D.C.1979). Co. v. Louisville & Nashville Railroad degree to the 49. He contended that particu- above that which are issues pic- “the whole did not include the Order of track. lar section could then come ture” the railroad extremely poor go towards the They relief. “It them for Administrator and ask firm, L&N training that members some indi- giving us them mutuality is a They deal with engineers, have. being . and problems cation of the routinely per- maintenance poor out some in some situations to work able track, brought up to once formed Id. solutions.” disci- standards, with failure to and deal safety regula- violating pline people for the Admin- response of the Court to tions. attempt to defend istrator’s categorized significant. as a was has on such a loose basis
What Plaintiff syndrome, I think middle-management clearly pointed He out: but I pretty gross generalization, that is a we have a whether depends on [I]t with the fact that L&N they deal think government government of law or training pro- action in the has not taken talking are about. you men. That is what program, in the gram, in the maintenance and we will responsible people areWe forth, stop program, and so disciplining responsi- they we think are work it out if problems. ble. track were assuming a section of Now a courtroom. That is no standard re- whatever the standards perfect, or compli- It is likewise no standard *5 problem have the over-all quire, we still not in Congress did ance with the statute. railroad, itself, getting up to snuff. the Administrator 432 invest Section objective factor. . That factor is less opera- effectively take over authority to of a broad by the issuance tion of a railroad 5, 1979, added). (emphasis June at 33-34 Tr. incomplete) Emer- (admittedly open-ended refers to railroad gency The statute Order. thus contended that the Adminis- Counsel and this equipment pieces facilities and authority to af- trator had issue Order what as to requires particularization some fecting entire railroad and then under condi- in an “unsafe facility is particular it, removing impose of not he could threat equip- “piece particular or what tion” “training program, such as a conditions is in unsafe condition. ment” program, maintenance program, that disciplinary] and so forth” language of Sec- apparent It is from permit would the Federal Railroad Admin- not intend to Congress did tion 432 that aspects istration to take over other of the restrict the the Administrator authorize operation Id. at 34. railroad. over freight L & N operation of the claim track under thousands of miles of argued FRA counsel further that condition in unsafe that the tracks are not reach the issue of the basic Court could Administra- of the complaint when the real validity Emergency of the Order under the engineers that the he considers tor is that plaintiff statute unless the “exhausted its be trained should handle the trains who you give remedies because should the Ad- manner. unspecified differently in some apple”. ministrator first bite at [the] th[e] seem, however, Id. at 38. It would that he Safety Transportation National Board) had his first bite when he issued the Order. in its (hereafter the Board It was also admitted FRA’s materi- reviewing counsel hazardous report formal “point particular para- operations he could not out the and the shipments rail als (see Ap- graph” indicating in the Emergency Order Administration Federal Railroad FRA’s in the defect where tracks are defective. Id. at the same pendix) found when it directed* Act The Administrator that he contended administration revise “immediately Emergency not solely should be tied eliminate safety standards sustaining Order in it because the Order the track vagueness, and incompatibility, subjectivity, really picture.” was “not the whole Id. at remedy unenforceability” any its review of the for violation of of his regulations judicial Board at 34. in a He FRA disclosed. forum. “requirements the FRA only penalties It ordered can sue civil for under Sec- explicit as to insure (45 438) should be made more so tion 209 of the Act U.S.C. but the detection and correction of combina- request injunctions, including can also tions of track conditions which cause derail- preliminary injunctions where TROs similarly The L & N is enti- ments.” Id. appropriate, under 208 and 210 Sections explicit” findings 432 to tled under “more amended, § (as 439), 45 U.S.C. §§ within that are of the FRA any regulations. his violation of rules and equipment, facilities and over and that are Opposition Appellee’s Memorandum equipment. limited to facilities and Stay Pending Appeal, Motion for at 32. slightly aIn different vein we likewise clearly The Administrator exceeds his au- subjective that the FRA find should be less attempts thority when he to use an Emer- explicit. and more This should not be diffi- as a gency Order under Section 432 means cult. The Administrator asserts that over exercising general regulatory authority years the last 3 the FRA has made exten- operations training pro- over the “train inspections sive L freight opera- of the & N grams” of the L & N.
tions and its track. It asserts that during No. Notice at 2. the first 6 months of 1978 alone 91 track Judge points opinion Gesell’s out inspections covering 854 miles of L & N failing Administrator’s order is deficient in track were conducted FRA track inspec- notify specific what steps railroad of tors. inspections allegedly These disclosed it take satisfy must in order to the stan- 1,288instances of non-compliancewith FRA imposing. dards that the Administrator was track standards. It appears also that the The specificity lack of in the order made geometry FRA used track inspect cars to this apparent. criticism The Administrator trackage railroad and as a result use attempted to counter this criticism such in 197845 miles of track Emergency Order No. Notice 8 issued on were non-compliance found to be in *6 27, June 1979. interpreted This Order the requirements the imposed by the track decision of the District pointing Court as standards for posted track class and 17 a Emergency specify failure of the Order of these miles were found to be below mini- the standards under which relief from the requirements mal for I class track.5 Order could be agreed obtained. FRA
With the having FRA great such that a need state procedures famil- existed to iarity trackage with the employed evaluating requests of the L N in & for relief system having and geometry proceeded and then cars to amend Order to available readily tracks, factor, provide following check the it among others, FRA, too much to direct the would determining as did the be considered in Board, Safety whether, explicit” inspections, be “more after field the restric- and particularize its complaint tions would be rather than issue removed: whether the rele- a broad pieces brush order of the vant were found to be character of Emergency compliance Order No. 11. in substantial with— If the FRA finds the railroad to be deficient in matters other (49 Track Standards CFR Part than its equipment, facilities and the L & N 213) setting repair forth maintenance and railroad admits that . . programs Freight Car
wholly (49 215) aside from emergency powers, his CFR Part and Power Standards the Federal (49 232) Railroad Safety grants Regulations Act Brake CFR Part the Administrator a full Act adequate Inspection and Locomotive 11, Emergency hour), per prescribe progres- Order No. at is 110 miles and 12^tl3. sively stringent safety requirements for more recognize The track standards six track (49 213). each such class § CFR (the 6, highest being classes Class over which 13 n.3. operating speed freight maximum for trains 1958). 22-34) implementing Applying Cir. these standards we (45 U.S.C. §§ 230) (49 regulations CFR Part that the FRA’s likelihood of have concluded standards bear on the insofar as those extremely the merits is re- succeeding on danger train collision or immediate mote, irreparably the L&N will be derailment. is not en- injured Emergency if the Order 11, 8, joined, parties at 2. that other will not be sub- Emergency Order No. Notice injunction against harmed stantially wholly found these to be The District Court present Order because if there are valid specifications particulariza- inadequate Emergency an Order the grounds to issue agree. tions. We It is akin to an indict- may immediately proceed to do so in a only stating ment that John Jones is ac- opera- proper manner and reach other cused of violation of 18 U.S.C. § court, in by prevailing tional deficiencies The June 1979 amendment of the public and that interest will be best Emergency stated that it Order also would by confining jurisdiction promoted determining consider another factor it authority the FRA to the conferred on whether the condition continues by Congress. the statute enacted We to exist: find that the conditions exist therefore Whether, investiga- d. on field based stay pending appeal. upon deny which to a tions, including employ- interviews with rely upon we reaching In this conclusion operations ees and observation of train reasons set forth in the extensive memoran- training programs, per- those L&N Court, and the addition- dum of the District responsible equip- sonnel the use of for reasons set forth above. Therefore we al ment and facilities in rail stay pending appeal. deny the motion of, substantially comply are informed with, operating procedures rules and large num- We are not unmindful adopted by prescribed by the railroad or very ber of serious accidents rail- regulation which are essential to Federal involving the United haz- roads of States the safe operation the safe ardous materials. As handling of hazardous materials cars in such accidents occur Safety Board indicates parts train. See CFR It is a matter throughout the nation. 8, at 2-3. Emergency Order No. Notice great many railroads and which affects provisions
It is obvious that these exceed indicate that the L & N is not the statistics vested in the Administrator experiencing large number of alone under Section 432 to issue very consequences. derailments with serious pieces facilities and L&N had one derailment with such equipment alleged to be in unsafe condition. *7 brought it its sta- consequences severe that The matters referred to in section d are top range the of the Class I tistics into clearly type supervision the on which the railroads, Report the Board but as the hearing railroad is entitled to a indicates, track “enforcement of proceed Administrator should in the Courts track- always prevented has not standards in the manner indicated above. Safety Board caused derailments.” III. THE LAW APPLICABLE TO A track the enforcement of safe- at 33. Since
STAY PENDING APPEAL
depended upon to
ty standards cannot be
derailments,
prob-
the
prevent track-caused
considering
In
stay
whether a
should be
complex.
In addition
lem is indeed
pending appeal
guided by
entered
we are
there are also the
track-caused derailments
the same standards that control the is
failures.
by equipment
derailments caused
suance of a preliminary injunction. Wash
the
attributed to
always
These cannot
be
ington Metropolitan Area Transit Commis
railroad,
of the hazardous
Tours,
host
as much
Holiday
Inc.,
sion v.
U.S.App.
foreign
transported in cars
(D.C.
1977);
D.C.
material is
F.2d 841
Cir.
by the
Virginia
tank cars owned
Petroleum
railroads and in
Jobbers Ass’n. v. F. P.
C.,
upon in the
U.S.App.D.C.106,
(D.C.
relied
shippers.
caused railroad shipper hearing injunc- or be cate what railroad owned the entitled to before an tion is issued. the equipment. Thus it be unfair to hold Our denial of motion for stay prejudice right is without of the responsible the L & N to be for the derail- Administrator of the Federal Railroad Ad- equipment ments caused some failures. proceed by ministration to either avenue or problem very serious and as to justifiable grounds. both if he has In this improvements whether the in the adminis- following portion of repeat we the tration of the Federal Railroad Act that are the District Court’s Memorandum: suggested by Report (see the Board may well still An situation Appendix) problem will correct we ex- should, however, be dealt with exist. It However, press opinion. no if the Adminis- specific terms. in far more concrete and particularized trator sec- determines authority granted The Order exceeds tions (facility) designated equip- of track or under 432 and Section justify ment create a hazard to an Emer- hereby illegal. Nothing to be declared gency speci- Order he issue an should issuance prohibits herein the immediate fying particular equipment track or order, properly of a drawn directed to support question. grounds And if he has any persisting emergency. the lack of skills of determination & Nashville Railroad v. Louisville Co. Sulli- operating supporting personnel or van, supra note at 473.6 persons or railroad also create a hazard ordered. So property problem he can attack that direct- facility relating piece equipment. in- that the “burden of to a or In dissent contends prior practices specting agen- main and branch line accordance with all cy designated of the placed problems specifically in- track not be on the federal these little should be should statutory duty. spectors.” alleged defect, is their as to the But that location and They expeditiously highly specialized equipment expeditious it to do so as to avoid their ing have correction be- game FRA indicates it has and the made into a of blind man’s bluff. think, duty recently past process and over the carried out this three are in a One would require even if due did not they it, years. job specific designation the FRA has done its If of the loca- specify position alleged areas constituting “big tion of the problem” defects they contend fall below standard and re- would be the method that would en- quire repair speed or reduced over those rails. sure their earliest correction. specific The FRA had the information It is also rather obvious that the dissent is spec- of track it covered but refused to sections suggestion not familiar with the breadth of its ify choosing in its same instead to assert comply that all the railroad has to do is with ail power that was not conferred on it to restrict My colleague just standards. seems operations specifications on the tract that met comprehension magnitude to have no they so agement statutory power. could enforce some undisclosed man- impossibility and imposed specificity. of the burden that would be gross decisions. This is a misuse of practically if the FRA order lacked all expansion It is the saying It would be similar to power specific physical limited conditions into the unlimited to deal with prove accused must that he has not violated power to run the conspiracy specific- statute. The burden of places railroad. The statute the burden on the ity placed on FRA because that is where specify FRA to places the statute it. beyond suggest it is far that the FRA reason closing In it should be noted that the dissent (when designate can rails knows attempts nowhere to answer for the defects of standard) that all rails are not below and then the FRA that are relevant to this case and are *8 require prove every the railroad to mile of briefly Appendix; set forth defends the in the and nowhere extravagant track meets the Such standards. delay refusing of the FRA for authority permit would the FRA to declare that trackage remove vast sections of main line all cars on the railroad are a hazard and then operating from the reduced restrictions. operate refuse to let the railroad until all cars statutory body The FRA is a and it should proved up were to be to standard —all the time authority respect emergency with exercise orders as having only very data that indicates that a few always (Emer- past it has done in the might up cars not be to standard. gency 1-10) by specifically designating Orders “big problem” segment piece The the dissent refers to that the of track or the of subject up be the of an that is not what the FRA standards. That is nothing problems inspectors more than a series of little are hired for.
801 severity APPENDIX reduce the of haz- derailments of ardous materials.4 Transportation of Report The the National Congressionally This Safety investiga- Board directed implicitly tion indicated some of criticism 1978, the House “In June Conferees of which the problem the manner in being was Transpor- directed the National and Senate Federal by handled Railroad Adminis- Safety Board ‘. .to conduct tation statutory tration or with the authority that thorough review materials a of hazardous possessed. Safety the FRA The Board shipments Federal applicable rail and the review problem5 made an extensive as well as determine how the rail standards 8, and on March 1979 issued its Report, can more Railroad Administration Federal public. report supra6 to the The formal re- effectively prevent the occurrence and pages. covers 53 severity of of hazard- duce the derailments ous materials.1 transportation Because the of hazardous railroads, by just materials Independent Act of Safety Board Nashville, Louisville and is a matter na- of Transporta- 19742 authorizes National concern, tionwide and because the current evaluate, Safety Board to “. tion subject Report on that the National effectiveness, publish assess Transportation Safety a Board forth with to the findings respect Board sets. number of the relevant facts prob- safety consciousness and ef- transportation lem, findings, we refer to a few of its preventing of other ficacy accidents Doing conclusions and recommendations.' Agencies ... Government [and] permits so to view the us situation on adequacy safeguards evaluate per- Louisville and Nashville Railroad in concerning transportation procedures spective of other American rail- materials performance hazardous roads governmental and with to the charged agencies other Government area regulation. activities this of railroad the safe of such assuring 3 materials.” going completely Without into the nu- Report Pursuant June 1978 direction merous features in which the faults Congressional powers Conferees and the Railroad we Federal Administration governing conferred statute the Na- note the found that the report number of (herein- Transportation Safety tional transporting Board derailments consists of hazard- Board) Safety increasing after the com- ous had been undertook materials for 11 review sur- prehensive problems years. railroads in recent From 1971 rounding the transportation reported hazardous 1977 the number of in- instances volving materials how the Federal Railroad Ad- release of hazardous materials on ministration also could railroads had increased from 346 in 1971 to FRA] [hereinafter Report its direct field to exercise in the in 1977.7 also showed effectively prevent more and that the of such occurrence number accidents had in- Ap- Representatives, “Making 1. U. S. House of 5. id. propriations Transporta- Department for the SEE-79-2, Report Transporta- 6. No. National Agencies,”. Report tion and Related No. 95- Board, Safety Safety 29, SEE-79-2, tion 1329, Effectiveness Evalua- 1978.” June No. tion of the Federal Railroad’s Administration’s Effectiveness Federal Evaluation of the Hazardous Materials and Trade Pro- Railroad Administration’s Materials Hazardous 8, grams, March Safety Programs.” Track March page iii. 7. “1971 1972 1973 1974 1975 1976 1977 Independent Safety Board Act P.L. 412 959 1500” 93-633, 3, 1975, January seq., 1901 et U.S.C. Id., Table 3 seq. et 81 Stat. *9 H6291, Cong.Rec. 4. 124 expert at time, safety railroad of a full Safety has the controls of the Office of in 1971 to 186 in 1975
creased from 80 upon effect the success of consists in derail- had a remarkable that while the number modestly increased from only Safety program ment had of the FRA the Railroad 1975 to 1977 respected leader . the absence of a million to damage had increased from $18 in the in a loss of confidence has resulted million.9 $29 develop, implement, FRA to ability of pro- safety an effective and administer Safety Board conclud- widespread . . there is dis- gram . Agency Railroad ed that for the Federal Safety per- with the FRA enchantment improve its effort safe Safety . . Board be- . hazardous materials would— formance strong safety of a the absence lieves knowledgeable “require strong, railroad is reflected in the management leader at the head of the safety professional unstructured, .10 program reactive Safety . The absence Office Showing Summary Casualties of Railroad Hazardous Materials Accidents Evacuating Involving Transporting Consists Derailments Hazardous Materials authority, responsi- difficulty has the as well as the with this review is who bility, associated 10. A directives, management contemplates Congressional to issue clear-cut directive that looking weaknesses, develop, implement, and administer a and safety program result disciplined many strengths forgetting in a manner. persons’ some responsible organizations for the that are the relatively good safety of a full-time railroad The absence safety This re- railroad record. Safety expert of the Office of at the controls report probed problems and the is direct- view upon has had a remarkable effect the success recommending delineating solu- them and ed at safety program. spite of the FRA In impressed with was Board tions. staff, the absence of a know- dedication professionalism of FRA’s staff the talent staff, respected by ledgeable leader who is strengths must be the foundation these Administrator, railroads, Secretary, the improve will improvements. their effort To in a of confidence in and labor has resulted loss strong, knowledgeable railroad require a develop, implement, ability of FRA to professional head of the Office at the program. effective Labor administer *10 derailment of ma- lated to the hazardous II, Safety specifical- (Class Priority Action) (R-79- The Board also concluded terials. safety “FRA’s hazardous materials ly that 16) with-
program fragmented and reactive pro- safety document a track Develop and goals, objectives, or criteria out established by a indicated on risk as gram based success can be determined” and by which safety analysis which will comprehensive significant other conclusions.11 reached (risk) to safety level of include: desired many There are other comments achieved; objec- program goals and be of the safety conduct hazardous materials level; by on that and criteria tives based program Agency, the Federal Railroad program will be which the success general give but those referred to above II, (R- (Class Action) Priority measured. Safety Board’s as set idea of conclusions 79-17) its Report.12 forth in formal Safety Report The Board included also Immediately safety revise the track stan- following signif- Recommendations in- subjectivity, dards to eliminate the icantly upon touch aspects various vagueness, compatibility, and unenforce- FRA and railroads that are relevant requirements be ability. The should the issues raised FRA’s Or- explicit made more so as to insure 11 and the L der No. & N: detection and correction of all combina- safety expert and install a Select railroad which de- tions of track conditions cause as Associate Safety. Administrator for (Class I, (R- Urgent Action) railments. Assure he has the com- 79-19) responsibility mensurate with his for the I, safety program. (Class Report
railroad Safety Ur- at 34. These recom- Board Action) gent (R-79-14) prior mendations and some of the conclu- Safety sions indicate that con- Develop a data Board base that will allow the sidered that Federal rating definition and Railroad Adminis- safety railroad problems, compe- tration have a particularly problems sufficiently those re- did not longer goes pro safety no safety to FRA for action in railroad 11. 1. FRA’s hazardous materials instead, legislation gram fragmented but lobbies for and reactive without accomplish specific safety objectives. their goals, objectives, Al- established or criteria though railroad interviewees were reluctant to by which success can be determined. activities, safety indict FRA’s spread there is a wide- established, The absence documented safety disenchantment with the FRA objectives goals and results failure performance. groups Interviewees from both program during maintain direction reac continuing had no doubt that the full time Association had affected the absence of a catastrophes. tions to Safety Administrator Department MTB 2. FRA and [The adversely, program and Transportation Transport Materials were convinced that a Office of head of the process must formalize the Board] “safety which has the of all unacceptable finding risks in hazardous improvements shareholders” is needed if the railroad materials and going accomplished. are be promptly finding must act once such a Board absence of believes that the made. has been strong management reflected leader is of the results 3. The value of the TSC work unstructured, program. in ty program A reactive safe- analysis priority on hazard determi- doubling goal sets as a jeopardized by inadequacy nation year’s knowing last fines effect of without the FRA and MTB data which are fines reflects a on reduction of accidents being used. understanding lack of of what controls risks. organizational 12. FRA’s not structure is objectives of sci- Goals and entific surable, attainable, must be the result management conducive to the effective safety analyses they be mea- must inspection operation. of the field support. worthy implemented has 13. The FRA an effec- goals objectives guide program These must Participation Program. tive State during agency direction times that the must Id. agency 32-33. crises. react to must determine the acceptable safety (risk) level of criteria 12. Id. at n.5. The should be read in program which the effectiveness of the measured. can be entirety gather significance. its full Id. at 31-32. *11 the fact that
today. But that does not alter facility . is in unsafe con- “any if did not have a safety expert”, “railroad tent emergency thereby creates an relating dition particularly “data base sufficient or involving a hazard of death materials to situation of hazardous the derailment to it, prob- persons affected the Secre- safety injury to the railroad and rate define order, with- may immediately was not issue an lems, safety program tary that its track comprehensive provisions of section regard in a grounded risks out based on title, “track further 431(b) prohibiting that the FRA’s this the safety analysis”, and upon an un- were based . until the safety standards” use of such “subjectivity, corrected,” incom- 45 amount condition is U.S.C. desirable unsafe unenforceability” vagueness, and the patibility, puts no limit on size 432. The statute § 13 which should be “eliminated.” the facility, or the cost to correct of the injury.” of death or existing “hazard WILKEY, dissenting: Judge, Circuit my two Permeating opinion the entire admit, freely is our My colleagues “[I]t tri- of the colleagues and the memorandum tracks be that the railroad opinion assumption strange court below is the al the stat- ‘facility’ to be a under considered the Federal emergency powers of that the “facility,” are a ute.”2 If railroad tracks 45 under U.S.C. Railroad Administrator limit, maxi- is no minimum or then there problems, little that if limited to 432 are § mum, miles of railroad many as to how big problem, then us is a what confronts subject being “facility” track constitute a has no authori- somehow the Administrator under his dealt with emergency an basis. with it on ty to deal 432. emergency powers of section segmentize the isolate and He must either time-consuming hear- problem,1 or conduct the Feder- agency, responsible expert nonemergency proce- the usual ings under Administration, has asserted al Railroad dure, court for the go into a federal or the “worst has the L & N Railroad judicial hearing to time-consuming usual nation record in the safety with the appropriate to deal get an order ma- of hazardous transportation by rail do, thing he cannot accord- situation. One pointed out in colleagues My terials.”3 judge, trial is my colleagues and the ing to case in this memorandum previous their problem on the basis of with the whole deal involving 16 accident “[wjith the one emergency an order. involving 3 and another in 1978 deaths in those L N is 1st in 1977 the & deaths Congress that when may very It well be 4. .” Fur- life . as to loss of periods, FRA granting enacted section number ther, first in the L & N is also contemplate it emergency powers did first six damaged in the cars of railroad system track would that one entire railroad accidents, In number of of 1978. months & shape that the Louisville in the sad be involved, the num- of cars the number today obviously is Nashville Railroad Co. materials, it releasing hazardous of cars ber railroad —indeed, major part among the worst offenders. high stands is in entire United States trackage of the already piecemeal doing FRA has what Id. 34. at system, particularly since as for the entire done “However, later, following say: My colleagues Admin if the Administrator is I discuss particularized lifting sections each procedure determines restrictions on istrator designated equipment (facility) cre inspection or shows it to be track as section of the Emergency justify Order he ate a hazard safe. particular specifying the issue an Order should Majority question.” track or 2. at —, 617 at 795. F.2d —, opinion, U.S.App.D.C. at 617 F.2d 800. On the basis of this I as see (7 at 8-9 Feb. No. record, line and branches of the L & N main 1979). up into could be divided about miles sections, separate for each of and a order Sullivan, R. v. No. R. & Nashville 4. Louisville sections, the whole same tenor as for 1979). 79-1171, (D.C.Cir. op. Feb. at 7 mem. practical purpose system, issued. There no system only entire remove the over inspection These accidents have occurred vari- restrictions where track after tracks, L portions they of the & N have ous safe. exactly can be certified This numerous, sufficiently sufficiently been following procedure Administrator scattered, sufficiently hazardous to emergency April order. On 6 after his question raise about the six thousand re- June order’s miles the main lines and branches of the quirements regard were rescinded with *12 7 system. L & N There would seem to be an sections of track.6 various adequate justify factual foundation the If the Administrator had been confronted Department Transportation’s of concern with fewa routine safety a carriage over L & tracks of violations or the N and limited number of and accidents in a hazardous materials for the invocation limited area, might I then a court emergency powers very place of section 432. well the showing of disagree my colleagues’ with burden therefore detailed defects in the statement, allegations system FRA, there track are on the as well as confine “[T]he and widespread safety limited, ‘serious deficiencies the restrictions to defined sections. & N throughout’ system the L does not But unquestioned here it is that eleven of ‘any facility constitute a determination that eighteen the serious accidents involving ”5 .' is in unsafe condition.’ materials, hazardous all with substantial allegation “widespread safety FRA’s as property lives, loss of and some were caused a throughout” deficiencies does constitute defects, by track and track defects not “any facility determination that in any particular localized part of sys- condition,” is in unsafe because the evi- While, tem. my colleagues recount, as accidents, of dence—the statistics their lo- “during the 6 first months of 1978 alone 91 cation, character, frequency —shows inspections track covering 854 miles of L & entire in an track is unsafe N track were conducted by FRA in- track condition. spectors,” inspections these “allegedly dis- 1,288 closed remedy invoked the FRA order is instances of noncompliance specifically standards,”8 with FRA track directed unsafe con- on the evi- alia, dition. “The inter restricted the dence before us of the L safety & N record any of all carrying system movement hazard- over the entire the burden in- of not speed ous materials to a that did exceed specting more than miles of main and hour, per required particular 30 miles branchline placed track should not be placement long empty of certain cars in federal inspectors. I submit that in consists, the required certain and doubled this situation properly the burden shifts to frequency inspections coupled of track with the L & N Railroad to come forward and a requirement inspect- that certain track be show inspections portions foot,"6 ed remedy on I is a submit that this track have been made and that these por- designed for the hazardous deficiencies safe, tions are then to ask the Adminis- found exist Administrator to in the trator to emergency safety rescind his order system. L & N track regard designated portions. to those This course, procedure is every mile the six Administrator is
Of thou- defective, following, my now sand but it and which only colleagues takes one disapprove. stretch of defective track to cause a derail-
ment. these If stretches defective track agree my colleagues’ sup- I cannot throughout
are numerous and scattered port judge’s directing trial the FRA system, only way then the correct meticulously explicit’ particularize “to be ‘more go condition over the —, U.S.App.D.C. U.S.App.D.C. at---, Majority op. at 7. id. 199 See 5. 617 617 deleted). (emphasis at F.2d at 795 F.2d 793 795-796. —, U.S.App.D.C. —, at U.S.App.D.C. at 617 F.2d Id. 199 617 F.2d (emphasis added). 793 at 794 go
Then we say, back to them and [cjonform that section of the track to the a broad brush complaint rather than issue regulations, always which have existed order of the character exist, nobody disputes as far as agree I that “the Ad- 11.” Nor can No. many you how nails or whatever else use failing deficient in order is ministrator’s ,12 to hold down the tracks specific steps it notify what the railroad satisfy the standards take in order to must words, In other person- the Administrator’s imposing.”10 was nel have been pointing railroad to the issued “broad brush The Administrator duly standards, saying, authorized was confronted with a because he these, order” “Comply with establish that the track e., i. the breakdown of problem, brush safe, broad and we will the safety lift restric- scattered over safe track conditions imposed by tions order.” notifying the rail- system. L & N As for just That is exactly approach that the take, the specific steps it should road what taking Administrator should be in this over- *13 pointed specific standards issued emergency situation. regard safety, freight safety, car to track These issues have been before this same brakes, inspections, power and locomotive panel judges of three before. On 26 Febru- N, “Comply said in effect to the L & ary my colleagues, my two over dis- duly promulgated safety stan- with these sent, staying entered an order the effective- “The District Court found these to dards.” ness of the Administrator’s safe- wholly inadequate specifications and be ty April order. On 4 1979 the full court of particularizations,”11 my colleagues judges my colleagues’ stay nine vacated two But, agree. regularly pro- if these are the 26 February only my with two standards, wrong what mulgated safety is colleagues dissenting, restoring thus the ef- them, referring insisting with the FRA emergen- fectiveness of the Administrator’s complying, specifying the L & N on cy safety Strangely enough, order. the dis- L complies, that if the & N then the rail- trict court cited and relied on the decision conformity road will be in with the my colleagues, two which had been va- standards and the restrictions can be lifted? cated, considering without the reasons stat- Why spell specific the FRA now out must my ed in dissent which caused en banc steps comply duly to be taken to issued panel court to set aside the 2-1 action. One safety regulations? The determination of think would that the district court would specific steps comply to be taken to decision, panel have realized that a 2-1 regulations responsibility is vote, vacated a 7-2 en banc was the railroad, regulated entity. It is not the proverbial rely. “slender reed” on which to obligation agency of the Government My two colleagues, encouraged by the dis- lead the railroad the hand. decision, although trict court’s on a differ- Leading just the railroad the hand is record, gone ent have to their back first and doing about what the FRA has been for the reasoning discredited line on this second months, past apparently few but not too opportunity. successfully. my colleagues cite As the oral court,
argument in the counsel for district with which the dangerous condition the Administrator stated: to deal is undenia- trying Administrator widespread. There persistent bly inspect
We the track. indications Our practi- the statute or absolutely nothing in inspected have time we have been each requires Admin- common sense cal portion they say adequate, piecemeal, by seg- with it istrator to deal it isn’t. — Id. —, U.S.App.D.C. 9. Id. 199 of 11. at at 798 of 799. F.2d. —, U.S.App.D.C. 12. at F.2d at —, U.S.App.D.C. Id. 199 617 F.2d at by any “facility,” or the track ments of in which he than the manner
method other large-scale emergency with it as a
has dealt stay the order 432. I would
under section enjoining the effective- court
of the district safety order. of the Administrator’s
ness MINING
In re PERMANENT SURFACE LITIGATION,
REGULATION
(two cases). COMPANY,
Appeal of PEABODY COAL Association,
National Coal *14 Mining Congress.
American
Appeal of PENNSYLVANIA COAL MIN- ASSOCIATION, Kerry
ING Coal Com-
pany, Company Coal and West Sunbeam Mining Corporation.
Freedom 79-2073,
Nos. 79-2116. Appeals,
United States Court of
District of Columbia Circuit. Argued Jan. Gardner, C., Washington, D. Warner W. Jan.
Decided Greenberger, John A. with whom I. Michael McMillan, Jr.,
Macleod and Richard Wash- brief, C., ington, appel- D. were on the for lants. Counsel, Sheldon,
Harvey Sp. M. State of Illinois, Ill., Roger whom L. Chicago, Chaffe, Gen., Atty. Asst. Commonwealth Richmond, Va., brief, Virginia, was on the for amici curiae. McCord, Atty., Dept. A. of Jus
Michael tice, C., Washington, with whom James D. Moorman, Gen., Atty. and Carl W. Asst. Justice, Strass, Washington, Atty., Dept. of brief, C., appellee. for D. were on the C., Ross, Washington, D. Philip Stuart appellants. appearance entered an also