NATIONAL ASS'N OF RECYCLING INDUSTRIES v. I. C. C.

Nos. 81-1051, 79-1393, 79-1395, 79-1582, 79-1583, 79-1590, 79-1611, 79-1620, 79-1838, 79-1839, 79-1860, 79-1970 and 79-1984.

660 F.2d 795 (1981)

NATIONAL ASSOCIATION OF RECYCLING INDUSTRIES, INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Association of American Railroads, et al., Aluminum Association, Inc., Intervenors. NATIONAL ASSOCIATION OF RECYCLING INDUSTRIES, INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Atchison, Topeka and Santa Fe Railway Co., et al., Institute of Scrap Iron and Steel, Inc., National Steel Corporation (79-1582) American Paper Institute, Inc. (79-1590), Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided July 15, 1981.


Attorney(s) appearing for the Case

Edward L. Merrigan, Washington, D. C., for petitioner.

Ellen K. Schall, Deputy Associate Gen. Counsel, I. C. C., Washington, D. C., with whom Richard A. Allen, Gen. Counsel and Robert S. Burk, Deputy Gen. Counsel, I. C. C., Washington, D. C., were on the brief, for respondent, Interstate Commerce Commission. John J. Powers, III and Kenneth P. Kolson, Attys., Dept. of Justice, Washington, D. C., entered appearances for respondent, United States of America.

Michael Boudin, Washington, D. C., with whom Timothy A. Harr, James L. Tapley, Washington, D. C., James L. Howe, III, Richmond, Va., Harry N. Babcock, Cleveland, Ohio, Richard W. Kienle, Roanoke, Va., William C. Leiper and John A. Dailey, Philadelphia, Pa., were on the brief for intervenors, Association of American Railroads, et al.

Dickson R. Loos, Washington, D. C., was on the Statement in lieu of brief, for intervenor, Aluminum Association.

Edward L. Merrigan, Washington, D. C., was on the brief for petitioner National Association of Recycling Industries, in case No. 79-1393.

David Reichert, Howard Gould and Stephen D. Strauss, Cincinnati, Ohio, were on the brief, for the petitioner Institute of Scrap Iron and Steel, Inc. in case No. 79-1395.

John F. Donelan, and John K. Maser, III, Washington, D. C., for Armco, Inc., Inland Steel Co., Republic Steel Corp. and Youngstown Sheet and Tube Co., and Engene T. Liipfert, Fritz R. Kahn and L. John Osborn, Washington, D. C., for National Steel Corp. and Paul V. Miller, Bethlehem, Pa., for Bethlehem Steel Corp., were on the joint opening brief, for Armco, Inc., Inland Steel Co., Republic Steel Corp., and Youngstown Sheet and Tube Co. (petitioners in No. 79-1582), and Bethlehem Steel Corp. and National Steel Corp. (intervenors in No. 79-1582).

John F. Donelan, John K. Maser, III, and Renee D. Rysdahl, Washington, D. C., were on the brief, for petitioner American Paper Institute, Inc., in case No. 79-1583.

Michael Boudin, Timothy A. Harr, Washington, D. C., Richard W. Kienle, Roanoke, Va., and John A. Dailey, Philadelphia, Pa., were on the brief, for petitioner Railroads in case No. 79-1590.

Dickson R. Loos, Washington, D. C., were on the brief for petitioner Aluminum Association, Inc., in case No. 79-1611.

C. Michael Loftus, William L. Slover and Donald G. Avrey, Washington, D. C., were on the brief, for petitioner Fort Howard Paper Co., in case No. 79-1620.

Robert N. Kharasch, Edward D. Greenberg, Washington, D. C., was on the brief, for petitioner Southern Paper Traffic Conference in case No. 79-1838, petitioner Southwestern Paper Traffic Conference in case No. 79-1839, petitioner Wisconsin Paper and Pulp Manufacturers Traffic Association in case No. 79-1860, and petitioner Western Paper Traffic Conference in case No. 79-1970.

Michael M. Briley, Louis E. Tosi and Stephen B. Mosier, Toledo, Ohio, were on the brief, for petitioner Glass Packing Institute in case No. 79-1984.

Robert S. Burk, Deputy Gen. Counsel and David Popowski, Atty., I. C. C., Washington, D. C., were on the brief for respondent, ICC. Kenneth G. Caplan and Frederick W. Read, III, Attys., I. C. C., Washington, D. C., also entered appearance for respondent, ICC.

Barry Grossman, John J. Powers, III and Robert Lewis Thompson, Attys., Dept. of Justice, Washington, D. C., were on the brief, for respondent Department of Justice.

Before MacKINNON and WALD, Circuit Judges, and RONALD N. DAVIES, United States Senior District Judge for the District of North Dakota.


Opinion for the Court filed by Senior District Judge RONALD N. DAVIES.

RONALD N. DAVIES, Senior District Judge:

Presenting a matter of statutory construction, the National Association of Recycling Industries, Inc. (NARI), in its petition for review1 of a final report and order of the Interstate Commerce Commission (Commission) issued December 30, 1980, Ex Parte 394, challenges the Commission finding that Section 204 of the...

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