B. & Q. R. Co. Abandonment, 257 I.C.C. 700 (1944), the so-called Burlington conditions, rather than those prescribed in Oregon Short Line R. Co.-Abandonment-Goshen, 354 I.C.C. 584, 596 (1978) (Oregon II).

In the initial decision of December 10, 1976, the Administrative Law Judge concluded that a financially successful ICG operation of the Dwight branch line was hopeless, and that the burden of continued operation upon ICG and interstate commerce outweighed the benefits to shippers, receivers, and communities which would accrue from continued operation.

The supplemental evidence does not show that the basic factual situation has changed materially since the time of the initial decision. No information has been presented that would warrant reversing our prior judicially approved decision that abandonment should be permitted.

The supplemental evidence shows that there has been no change in the abundance of alternative transportation services located on or very near to all of the stations and shippers served by the Dwight branch line.

Rehabilitation and maintenance costs.-The supplemental evidence also indicates that there has been no change in the need which exists for the high rehabilitation and maintenance costs to be incurred by ICG if the Dwight branch line is to continue in operation.

In their memoranda, protestants argue that there is no need to rehabilitate and maintain the branch line to be in FRA class 2 condition for operation at 25 miles an hour.

While the Administrative Law Judge found that rehabilitation of the branch line to FRA class 3 standards of 40 miles an hour appeared unjustified, he found that rehabilitation to FRA class 2 standards was needed. He found that the need for such track rehabilitation was supported by the testimony of the ICG engineer and there was no reason to doubt the accuracy of most of the engineer's projected costs.

The Administrative Law Judge found that such track rehabilitation would cost $1.2 million initially with subsequent repair expenses of $185,000 a year. Even with a reduction in the numbers of new railroad ties, he found that initial rehabilitation expenses would be over $800,000 and maintenance costs afterwards would be about $145,000 a year.

These findings of the Administrative Law Judge are supported by the testimony of the ICG engineer that it is esential to upgrade the

entire Dwight branch line to the FRA class 3 standards of 40 miles an hour in order for the rail on the line to handle heavy loads of fertilizer, which are now in common use. The ICG engineer testified that upgrading of the Dwight branch line to FRA class 3 standards was needed in order to have a rail line adequate to operate on and do the necessary work to satisfy the customers. If a rail carrier is operating over an FRA class 2 railroad, he testified, you do not have too much. In view of the engineer's evidence, the upgrading of the branch line to FRA class 2 standards was considered by he Administrative Law Judge to be the minimum required.

We find that the evidence of record establishes that the Dwight branch line cannot be economically or safely operated at less than the FRA class 2 track standards. We also find that the supplemental evidence as summarized in the appendix indicates there has been no significant change regarding the rehabilitation and maintenance costs required.

Inadequate earnings.-The supplemental evidence also shows that there have not been any changes in traffic, revenues, or cost reductions to enable ICG to earn sufficient income from the Dwight branch line to pay for the rehabilitation and maintenance costs.

In the initial decision, the Administrative Law Judge concluded that, even if traffic over the Dwight branch line increased to its 1970 level of 822 cars, this would still be greatly insufficient to earn the revenues needed. As shown by the evidence, traffic handled since 1973 has been much less than 822 cars a year. Total loaded freight cars in the last 3 years particularly have been: 1975-300; 1976-263; and 1977-377.

Although the planned natural gas pipeline may bring about some expansion of traffic at Dwight in the future, it is unlikely that ICG's main-line service at Dwight, Conrail's service at Dwight, and the services of other carriers in the area will be unable to handle this additional traffic if and when it may develop. Protestants have not shown with any particularity that the possible increase in traffic will inure to ICG's Dwight branch line or that revenues from this future traffic will be substantial enough to cover ICG's rehabilitation and maintenance costs.

Beginning in March 1977, ICG changed its method of operating over the Dwight branch line so as to integrate these operations with its main-line Joliet-Bloomington operations. While this has reduced its costs of operations somewhat, the evidence does not show that the cost savings are so great as to enable the Dwight branch line to pay the rehabilitation and maintenance costs required.

With respect to the costs of operating the Dwight branch line, protestants argue that the off-branch costs for 1977 were $58,830 and the on-branch costs $29,424, for total avoidable costs of $88,254. In contrast, ICG submits data indicating that such offbranch costs for 1977 were $158,237 and on-branch costs $73,819, for total avoidable costs of $232,092. (If certain wages and train fuel which would not be saved are deleted from ICG's data, its total avoidable costs would be about $204,967.)

Protestants contend that, under their computation, the Dwight branch line was operated in 1977 at a profit of $37,637. On the other hand, ICG claims that the branch line produced an operating loss of $106,201.

In his initial decision, the Administrative Law Judge concluded that the Dwight branch line has produced large deficits every year, at least since 1969, and there does not appear to be even a remote prospect that this losing situation can be turned around by continued ICG operation of the branch line. He further concluded that it would take a huge increase in traffic and revenue to make up the maintenance funds which are necessary.

We agree with these conclusions and find it unnecessary to decide whether the total avoidable costs in 1977 were $88,254 or $232,092, or $204,967. ICG's method of operating over the Dwight branch line may be changed in the future in order to meet changing conditions on ICG's main line. This may result in higher operating costs for the Dwight branch line. In addition, regardless of which alleged total avoidable costs should be found to be correct for 1977, this would be for only 1 year as compared with many past years of large deficits. This would still fall far short of showing that ICG will earn the amount of revenues needed to pay for the very large rehabilitation and maintenance expenses required.

Consideration of two initial decisions.—In their memoranda, protestants argue that division 3 erred in its decision and order of April 7, 1977, in accepting the conclusions of the initial decision of December 10, 1976 of the Administrative Law Judge without explaining the basis for rejection of the conclusions of the prior report and order of October 18, 1972.

There are several reasons why we have not followed the conclusions of the report and order of October 18, 1972, which denied the proposed abandonment. First, since the hearing in 1972, the physical condition of the Dwight branch line has deteriorated substantially. This has resulted in the need for the rehabilitation and maintenance expenses discussed above. Secondly, the future

increases in traffic hoped for in 1972 have never happened. Instead, the numbers of carloads handled on the branch line each year have steadily declined, as shown by the evidence.

Third, although ICG has reduced its upgrading program and expenditures on the Dwight branch line for several years according to the 1972 recommendations, this has not changed the branch line into a profitable operation. Instead, as the Administrative Law Judge concluded in 1976, this nonmaintenance is largely selfdefeating. Necessary expenditures are merely deferred while traffic and revenues are lost to other transportation companies or lines where better operating conditions prevail. Fourth, the passage of time since the hearing in 1972 has resulted in the record made at that time becoming stale and of little weight.

Allegations of intimidation.-In their memoranda, protestants allege that ICG has adopted a policy of intimidating shippers and receivers in leases or sales of land. Protestants refer to certain other abandonment proceedings pending before this Commission in which an issue has been raised regarding ICG's insertion of clauses in land sales contracts requiring nonopposition to proposed abandonments and ICG's cancellation of leases of shippers who protest abandonments. Protestants argue that the instant proceeding is tainted by ICG's policies and that, therefore, the application should be denied. In reply, ICG states that this charge is false.

In No. 36958, Investigation into the Lawfulness of Practices Whereby Leases of Lessee Shippers Have Been Canceled Because of Complaints or Protests Which the Lessees Have Filed with the Commission, an investigation has been instituted into these alleged practices.

Here there is not evidence that ICG has entered into any such agreements or canceled any leases of shippers pertaining to the Dwight branch line.

Effect of Oregon Short Line decision.-Protestants admit that under the Commission's decision in Oregon II, supra, the employee protective conditions developed in that case do not apply to the instant proceeding. This is because the Oregon Short Line conditions do not apply to abandonment proceedings in which an administratively final order of the Commission was issued before August 18, 1977. In view of the fact that division 3's decision and order in the instant proceeding was administratively final when it was served April 15, 1977, this position of protestants is correct.

Because the Oregon Short Line conditions do not apply here, protestants submit, this would give the involved ICG employees the

protective conditions prescribed in the Burlington decision, supra. Protestants argue that imposing the Burlington conditions would be unfair. They contend that the appropriate conditions are those suggested by the Railway Labor Executives' Association in its September 19, 1977 comments in the Oregon Short Line case.

Before the development of the Oregon Short Line conditions, we have consistently imposed the Burlington conditions in abandonment cases unless the facts showed a lesser or greater standard was required. Oregon II. The Burlington conditions have been correctly imposed in the instant proceeding by the Administrative Law Judge, and there appear to be no facts adduced by protestants which show that a greater standard is required.

Purchase condition.-In their memorandum, protestants contend that the purchase condition which division 3 substituted for the condition contained in the initial decision is unwarranted. Protestants object to allowing ICG to sell all or a portion of the right-of-way of the Dwight branch line for public use at a purchase price on such terms as the parties may agree is just and reasonable. Protestants argue that the condition should require that any sale be offered at not less than net salvage value so as not to allow the line to be sold to a speculative short-line operation using nonunion employees.

We think that the purchase condition imposed in division 3's decision and order of April 7, 1977, is sufficient. A sale of the branch line to a nonunion short-line railroad operation would be for "rail purposes" and subject to the provisions of section la(6)(a) of the act. Such a sale is under the Commission's jurisdiction, and ICG would not be permitted to sell the branch line to such a purchaser without Commission approval of the reasonableness of the price. City of Washington issues.-In its memorandum, the city of Washington requests that the proposed abandonment be delayed until several issues be resolved to its satisfaction with respect to ICG's purported sale of all its property within the city limits to a private individual. The city of Washington is concerned as to whether certain street crossings will be maintained, that ownership of various areas of right-of-way in city streets be defined, and that it be able to secure dedication of a certain street right-of-way.

These matters are properly within the province of the State of Illinois and the appropriate local governments rather than issues to be addressed by the Commission under the Interstate Commerce Act. The proposed abandonment should not be delayed until all of these issues are resolved.