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COMMISSIONER GRESHAM, dissenting:

The majority's conclusion that the entire through rate is unreasonable rests on the finding that Sterling is unlawfully included in the Denver rate group. Until such time as that issue is finally adjudicated before the Federal courts, I continue to adhere to my dissenting expression in Sterling Colo. Beef Co. v. Atchison, T. & S. F. Ry. Co., 339 I.C.C. 530, 537 (1971).

It is ordered that this reopened proceeding will be held in abeyance pending final disposition of the judicial proceeding now before the United States Court of Appeals for the Tenth Circuit in Sterling Colorado Beef Co. v. Burlington Northern, Inc., et al., No. 77-1754.

357 I.C.C.

No. 36307'

RADIOACTIVE MATERIALS, MISSOURI-KANSAS-TEXAS RAILROAD COMPANY

Decided November 8, 1977

Respondent's flagouts to the Uniform Freight Classification as to transportation of radioactive materials and containers used to transport such materials found to violate sections 1(4), 1(6), and 6(1) of the act and the national transportation policy. Flagouts ordered canceled.

M. E. Roper and W. A. Thie for respondent.

James F. Bromley, Omer F. Brown II, John F. Donelan, John Guandalo, Donald MacLeay, John K. Maser III, Michael F. McBride, Charles J. McCarthy, William Larry Porter, Rudolf C. Ravasz, C. Wesley Smith, and Leonard M. Trosten for protestants.

Guy H. Cunningham III, Joseph DiStefano, and Hudson B. Ragan for the United States Energy Research and Development Administration (now included within the United States Department of Energy).

Stephen F. Eilperin, Richard S. Mallory, and Peter L. Strauss for the United States Nuclear Regulatory Commission.

REPORT AND ORDER OF THE COMMISSION

DIVISION 2, COMMISSIONERS MURPHY, MACFARLAND, AND CLAPP

MURPHY, Commissioner:

Following oral hearing before an Administrative Law Judge, an initial decision was served in this proceeding. Exceptions to the initial decision of the Administrative Law Judge were filed by respondent, and protestants have replied. Our conclusions differ in part from those of the Administrative Law Judge. The statement of facts by the Administrative Law Judge is correct in all material

'The report also embraces docket No. 36307 (Sub-No. 1), Empty Containers for Radioactive Materials, Missouri-Kansas-Texas Railroad Company, docket No. 36307 (Sub-No. 2), Restricted Usage of Containers and Cars, Non-Irradiated Cars, and docket No. 36307 (Sub-No. 3), Restricted Usage of Cars, Radioactive Materials.

respects, and we adopt it as our own. Only those facts necessary for an understanding of the issues will be restated. Exceptions and requested findings not discussed in this report nor reflected in our findings or conclusions have been considered and found not justified or their resolution not necessary for the proper disposition of this proceeding.

By schedules filed to become effective February 18, February 29, April 30, and June 30, 1976, respondent, Missouri-Kansas-Texas Railroad Company (MKT), proposed four changes to the Uniform Freight Classification 12, I.C.C. 8. Item 80768-A of supplement 3 is a flagout of radioactive materials and radioactive waste materials, which are identified in items 80762-A and 80764-A. Item 20907 of supplement 5 noted a flagout of empty radioactive material shipping containers identified in item 20905-A. Item 30818 of supplement 8 is a flagout regarding new, nonirradiated fuel in containers previously used to ship radioactive material. Finally, item 81296 of supplement 10 made the rating in item 81925-C for "cars, radioactive material shipping, moved on own wheels" only applicable on empty cars which have not been used previously to ship radioactive materials. All the proposed items were placed under investigation but not suspended, and all became effective on their scheduled dates. Each proposed item was assigned to a separate docket, and these dockets were consolidated for disposition. The protestants in this proceeding are the United States Energy Research and Development Administration (now DOE) the United States Nuclear Regulatory Commission (NRC), and 24 power companies and business concerns involved with nuclear technology. The Administrative Law Judge addressed and decided eight issues in the initial decision. Jurisdictional issues raised by both respondent and protestants were the threshhold questions. Citing United States v. Pennsylvania R. Co., 242 U.S. 208 (1916), respondent asserted that the Commission had no jurisdiction to order MKT to cancel its flagouts, because the jurisdiction to enforce the common carrier obligation imposed by section 1(4) of the Interstate Commerce Act is vested in the courts. The Administrative Law Judge found jurisdiction after distinguishing the Pennsylvania case, supra, and noting that when sections of the act other than section 1(4) were involved, as in this case, the Commission had found jurisdiction to enforce section 1(4). Protestants questioned the Commission's jurisdiction to consider safety and insurance problems connected with the rail transportation of radioactive materials. The Administrative Law Judge concluded that the national transportation policy required the

Commission to examine evidence concerning safety and insurance, and that such examination did not infringe on the jurisdiction of the United States Department of Transportation (DOT) or NRC. Following disposition of the jurisdiction issues, the Administrative Law Judge found that respondent does not have the legal right to decide in its own judgment what commodities it would carry, or continue to carry, for the public, and that respondent had failed to show that transportation of the involved radioactive materials presented an extraordinary risk justifying the flagouts. The Administrative Law Judge also found that the flagouts would violate sections 1(6) and 6(1) of the act, that respondent could not justify its flagouts on the grounds that the existing tariffs constitute paper rates, and that respondent had not been unfairly singled out by shippers of radioactive materials. Finally, the Administrative Law Judge concluded that the decision was not a Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969. Accordingly, respondent was ordered to cancel its flagout and publish reasonable and otherwise lawful tariff provisions covering the transportation of radioactive materials and containers used for the transportation of such materials.

On exceptions, respondent maintains that no actual issues exist in this case with respect to sections 1(6), 6(1), 6(8), and 22 of the act, and that the issue of respondent's duty under section 1(4) is thus the only issue involved. Since the Commission and courts have held that the courts have exclusive jurisdiction over enforcement of common carrier obligations under section 1(4), respondent asserts that the Commission is without jurisdiction to decide this case. Respondent also asserts that the Administrative Law Judge's conclusion that rail transportation of radioactive materials is not unduly hazardous is contrary to the undisputed evidence of record. Respondent further argues that the Administrative Law Judge improperly based his conclusion on the probability that an accident would not occur instead of considering the possibility that an accident involving radioactive materials could occur. Regarding liability in the event of an accident, MKT asserts that it is now without insurance coverage for shipments of radioactive materials as a result of the decision in Carolina Environmental Study Group v. United States, 431 F. Supp. 203 (W.D. N.C. 1977), in which the court found unconstitutional the $560 million limitation of liability contained in the PriceAnderson Act" with respect to any single nuclear accident. Finally, 'Cert. granted, No. 77-262, November 7, 1977.

$42 U.S.C. 2210.

MKT contends that the Administrative Law Judge's conclusion improperly departs from the definition of common carrier, that there is no need for the service under investigation, that the Administrative Law Judge's ultimate findings and order are erroneous, and that the initial decision denies MKT due process and equal protection in violation of the Fifth Amendment.

In reply, protestants state that the Commission does have jurisdiction to order MKT to carry the radioactive materials involved in this proceeding. Protestants also assert that MKT has a common carrier obligation to transport the materials and that its refusal to do so is a violation the Interstate Commerce Act. Concerning the safety issues, it is protestants' position that the Commission should defer to the expertise of DOT and NRC and not reach an independent judgment on the safety of the involved movements. Further, protestants point out that despite the decision in Carolina Environmental Study Group, supra, respondent is adequately protected from liability by the Price-Anderson Act and the insurance coverage which nuclear power plants are required to purchase. Finally, protestants state that the initial decision does not deprive MKT of due process or equal protection of the laws.

DISCUSSION AND CONCLUSIONS

The Commission's jurisdiction to order MKT to cancel its flagouts is the first issue which must be disposed of. Protestants asserted, and the Administrative Law Judge concluded, that MKT's refusal to transport the nuclear materials involved in this proceeding violates section 1(4) of the act. The jurisdictional issue arises because the Commission has taken the position that enforcement of the duties imposed by section 1(4) rests with the courts, except as entrusted to the Commission by other provisions of the act. It is clear, however, that the Commission has jurisdiction to determine violations of section 1(4) when other sections of the act are simultaneously involved in a proceeding. Cancellation of CRI&P & Soo Line Rates Livestock, 340 I.C.C. 463, 467 (1972); decision and order of division 2, served May 16, 1977, in Abandonment of TOFC Services

'This position is currently under review in Finance Docket No. 28412, Winnebago Farmers Elevator Co. v. Chicago and Northwestern Transportation Co. See the notice published at 42 F. R. 28658 (1977). In addition, the United States Court of Appeals for the Seventh Circuit has remanded docket No. 36347, Louisiana Grocers Co-operative v. Illinois C. G. R. to the Commission for consideration of the Commission's authority to assert jurisdiction to enforce section 1(4).

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