NEW YORK SUSQUEHANNA AND WESTERN RAILWAY CORPORATION, Plaintiff/Fourth Party Defendant
v.
Lisa P. JACKSON, in her official capacity as Commissioner of the New Jersey Department of Environmental Protection; New Jersey Meadowlands Commission; Robert R. Ceberio, in his official capacity as Executive Director of the New Jersey Meadowlands Commission; James Anzevino, in his official capacity as a Commissioner of the Meadowlands Commission; Michael J. Gonnelli, in his official capacity as a Commissioner of the New Jersey Meadowlands Commission; Leonard R. Kaiser, in his official capacity as a Commissioner of the New Jersey Meadowlands Commission; Mia M. Macri, in her capacity as a Commissioner of the New Jersey Meadowlands Commission; Eleanore Nissley, in her official capacity as a Commissioner of the New Jersey Meadowlands Commission; Charles A. Richman, in his official capacity as a Commissioner of the New Jersey Meadowlands Commission; Arlene Walther, in her official capacity as a Commissioner of the New Jersey Meadowlands Commission, Appellants Defendants/Counterclaimants/Third Party Plaintiffs
v.
Cardella Trucking Co., Inc.; Crossroads Recycling, Inc.; Hudson-National, LLC; MHF Logistical Solutions, Inc.; Millenium Resource Recovery, Ltd.; OnTrack Loading Company, Inc.; Precise Construction Contracting, Inc.; Rail-Tech, LLC.; Scott Excavating, LLC; Slane Rail Transport, LLC; Susquehanna Bulk Systems; X-Press Rail Transfer, LLC d/b/a 94th Street Rail Transfer, LLC, Third Party Defendants
v.
Slane Rail Transport, Inc., Fourth Party Plaintiff.
OPINION OF THE COURT
AMBRO, Circuit Judge.
Shipping solid waste to Midwestern landfills has become big business-particularly in places like New Jersey where capacity at in-state landfills is scarce. Railroads are prime beneficiaries of the increased demand for the means of shipping waste across the country. Many railroads accommodate this demand by building facilities within their rights-of-way for the storage and loading of waste, which often is brought to the loading facility by truck. As one might imagine, transferring solid waste from truck to rail car is not the cleanest of businesses, and so the State of New Jersey has tried to regulate it. Railroading, however, is historically the subject of federal regulation, so any state regulation affecting it raises the question of preemption. Because we conclude that the District Court’s factfinding does not support its conclusion that all of the State’s environmental regulations at issue are preempted here, we remand for consideration of each regulation individually.
I. Facts and Procedural History
In business since the mid-19th century, the New York Susquehanna and Western Railway Corporation (“ Susquehanna” ) operates 400 track-miles in New York, New Jersey, and Pennsylvania. This dispute centers on activities at five of its New Jersey solid waste transloading facilities.
Four of the facilities at issue dealt primarily or exclusively in solid waste generated at construction and demolition sites (“ C & D waste” ). Susquehanna built these facilities itself and either leased or owned the land. At each facility, Susquehanna sold most of its shipping capacity to a primary customer. These primary customers, known as “ shippers,” acted as middlemen between the generators of waste and the railroad. For a fee, they took title to C & D waste from the operators of the sites that generated it and hauled it by truck to Susquehanna’s C & D transloading facilities. They then paid Susquehanna to load the waste onto rail cars and ship it to out-of-state landfills (which they paid to take final title to the waste). Because the shippers’ value added was their ability to move waste efficiently from C & D sites to landfills, they used guaranteed-capacity contracts with Susquehanna to ensure that they could do so. Rather than operating the transloading facilities itself, Susquehanna hired a loading company to unload the trucks bringing in the waste, oversee its storage, and load it onto rail cars.
The fifth facility dealt only in contaminated soil, which was stored in sealed containers and emptied directly into sealed rail cars. The loading agent at that facility was a Susquehanna subsidiary, and the shipper had an exclusive contract with Susquehanna. Because the facility catered to only one customer, that customer controlled access to the facility.
At least initially, the transloading facilities were a mess.Nearby residents complained that their houses and yards were covered in dust and grime, the noise was excessive, and the wastewater and stormwater runoffs were dirty. Of equal (if not more) concern to state officials was that the facilities posed, in the officials’ judgment, potentially deadly fire hazards. The pollution and its perceived danger caused a public outcry, and New Jersey officials responded by promulgating a series of health, safety, and environmental rules that have come to be known as the “ 2D regulations” .SeeN.J.A.C. § 7:26-2D.1.
For transloading facilities that deal only in containerized solid waste, the 2D regulations require that:
• the rail carrier provide the State with a narrative from an officer of the rail carrier describing the facility operations and certifying that containers will not be opened and that employees, the public or the environment will not be exposed to solid waste except as allowed in accordance with state law;
• nonputrescible [not decaying] solid waste not remain at the rail facility for more than 10 days, putrescible [decaying] solid waste for not more than 72 hours, and nonhazardous liquid waste in sealed containers not more than 180 days;
• solid waste received, stored or transferred at the rail facility be contained in sealed containers that do not leak any liquids or solid materials and are not opened for any purpose at the facility, except that a container holding liquid waste may be opened briefly for the purpose of sampling the liquid provided the container is immediately resealed;
• the operation not result in the migration of odors outside the confines of the rail carrier’s property;
• all solid waste containers staged or stored at the facility be secured at all times in a manner that prevents unauthorized access to the containers and their contents;
• an adequate water supply and adequate fire-fighting equipment be maintained or be readily available to extinguish any and all types of fires;
• solid waste vehicles not be queued or staged on any public roadway;
• the queuing and staging of solid waste vehicles be conducted so as to prevent traffic backups and related traffic hazards on access roads servicing the facility;
• facilities and all appurtenances, other than those owned or operated by rail carriers, including vehicles while on-site, be positioned and buffered in such a manner that sound levels generated by the operation not exceed limits established pursuant to noise control rules;
• only solid waste vehicles properly registered and displaying the appropriate registration number and solid waste decal be admitted at the facility;
• the State’s designated representatives and inspectors be admitted to inspect any building, or any other portion of the rail facility, at any time;
• any release or discharge of any solid waste that would harm human health and the environment at the facility be immediately reported by the facility operator or its designee to the State;
• an on-site emergency coordinator be designated who will be available during all hours of operation for the purpose of handling emergency situations, such as, but not limited to, spills, discharges or releases of solid wastes at the facility; and
• the facility maintain daily records of waste and submit quarterly reports within 20 days of the end of each calendar quarter summarizing waste receipts.
See generallyN.J.A.C. § 7:26-2D.1(c).
For facilities that deal in waste that is not confined to sealed containers, the regulations provide that:
• all facility processing, tipping, sorting, loading, storage and compaction of materials (that is, solid waste and mixtures of solid waste and recyclable materials) occur within the confines of an enclosed building that complies with all requirements of the Uniform Construction Code;
• the facility have concrete or equivalent tipping floors or ramps to ensure proper containment and channeling of wastewater to sanitary sewer connections or holding tanks and be constructed to withstand heavy vehicle usage, in compliance with applicable rules regarding the discharge of wastewater and the use of holding tanks;
• the facility have a system that collects, stores, and properly disposes of wastewater generated during normal operations, including wash-out and cleaning of equipment, trucks, and floors, in compliance with the applicable rules regarding wastewater and stormwater management;
• the operator clean each area where waste has been deposited or stored within each 24-hour period;
• no waste be stored overnight without effective treatment to prevent odors associated with putrefaction;
• the facility property surrounding the actual waste management area be maintained free of litter, debris, and accumulations of unprocessed waste, process residuals, and effluents, and methods (such as fencing) of effectively controlling windblown papers and other lightweight materials be implemented;
• methods of effectively controlling dust be implemented in order to prevent migration outside the enclosed building and off-site;
• the operation not result in the migration of odors outside the confines of the enclosed building;
• an adequate water supply and adequate fire-fighting equipment be maintained or be readily available to extinguish any and all types of fires;
• the operator effectively control insects, other arthropods and rodents at the facility by means of a program implemented by an applicator of pesticides, certified in accordance with the New Jersey Pesticide Control Code;
• the facility operate certified scales for the reporting requirements for waste transported by trucks;
• facilities’ on-site roadways and storage areas have concrete or asphalt paving in those areas subject to vehicle loading and unloading activities;
• the facility not queue or stage solid waste vehicles on any public roadway;
• the queuing and staging of solid waste vehicles be conducted so as to prevent traffic backups and related traffic hazards on access roads servicing the facility;
• the facility and all appurtenances be positioned and buffered in such a manner that sound levels generated by the operation shall not exceed limits established pursuant to applicable noise control rules;
• only solid waste vehicles properly registered and displaying the appropriate registration number and solid waste decal be admitted for loading or unloading of any solid waste at the facility;
• the facility designate a secure area under the facility’s control, located at a safe distance from the tipping area, where solid waste may be unloaded from those solid waste vehicles that are either exempt from state registration requirements or which must be manually unloaded;
• the facility not accept or in any manner handle hazardous waste or regulated medical waste as defined by state law, except in compliance with all applicable requirements for such activities;
• nonputrescible solid waste not remain at the rail facility for more than 10 days, liquid solid waste not more than 180 days in sealed containers, and putrescible solid waste not more than 72 hours;
• effective security procedures be implemented to control entry to the rail facility, and exit from it, at all times;
• the State’s designated representatives and inspectors be admitted to inspect any building or other portion of a rail facility at any time;
• any release or discharge of any solid waste at the rail facility be immediately reported by the facility operator or its designee to the State;
• an on-site emergency coordinator be designated who will be available during all hours of operation for the purpose of handling emergency situations such as, but not limited to, spills, discharges, or releases of solid wastes at the facility;
• the rail carrier maintain daily records of wastes received, a waste origin/disposal form for each load of solid waste received, and submit to the State monthly summaries of wastes received no later than 20 days after the last day of each month.
See generallyN.J.A.C. § 7:26-2D.1(d).
Susquehanna asserted from the outset that it did not need to comply with the 2D regulations because they were preempted by the Interstate Commerce Commission Termination Act, 49 U.S.C. § 10501(b). After negotiations between Susquehanna and the State failed, the State, alleging multiple violations of the regulations at each site that continued for 250 days, assessed a civil penalty against Susquehanna of $2.5 million-$2,000 per day per site. Specifically, the State alleged that one or more of the sites:
• did not store waste in a fully enclosed building complying with the Uniform Construction Code (all sites);
• did not properly channel wastewater from the tipping floor into sewer system connections (all sites);
• did not properly collect, store, and dispose of wastewater generated through normal facility operations (all sites);
• did not properly control dust migration (all sites);
• failed to operate certified scales for purposes of reporting waste transported by trucks (all sites);
• spilled hazardous waste onto tracks and adjoining areas rather than keeping it contained (one site);
• failed to clean waste storage areas every 24 hours (four sites);
• failed to keep property surrounding waste management areas free of litter and debris (four sites);
• did not properly control odor emissions (four sites);
• did not properly control insects and rodents (four sites);
• failed to pave roadways and areas where waste was loaded or unloaded (two sites);
• allowed particulates to be released into the atmosphere causing air pollution (one site);
• allowed nonputrescible waste to remain on-site for more than 10 days (one site), and
• failed adequately to control access to the facility (one site).
App. at Aa217-28.
In response to the civil penalty, Susquehanna sued the State in the federal District Court for the District of New Jersey, asking the Court to declare that all of the 2D regulations were preempted by federal law and to enjoin New Jersey from enforcing the penalty. After the parties took limited discovery, the District Court held a hearing in December 2005 to assess the then-current conditions of the facilities and the issue of federal preemption. Two days into the hearing, after Susquehanna had called all of its witnesses but the State had only begun examining its first, the Court discontinued the hearing to attend to other matters. Over the next eight months, the parties tried to settle the dispute. In August 2006, they gave up. The Court asked for a final round of briefing and proposed to rule on preemption without concluding the hearing. Neither party objected, and the Court held that the Termination Act preempted all of the 2D regulations. The State appeals.
Because the District Court heard live testimony and resolved disputed factual issues on that basis, we treat this case as though it comes to us after a bench trial.Thus we review the Court’s factual findings for clear error and its conclusions of law de novo. Frederick L. v. Dep’t of Pub. Welfare of Pa., 422 F.3d 151, 154 (3d Cir.2005).
II. Whether Susquehanna’s Activities Are Covered by the Termination Act’s Preemption Clause
In relevant part, the Termination Act provides that “ [t]he jurisdiction of the [Surface Transportation] Board over transportation by rail carrier … is exclusive…. [T]he remedies provided under this part with respect to the regulation of rail transportation are exclusive and preempt the remedies provided under Federal and State law.” 49 U.S.C. § 10501(b) (internal paragraph divisions omitted). The Act defines “ transportation” as
(A) a locomotive, car, vehicle, vessel, warehouse, wharf, pier, dock, yard, property, facility, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, by rail, regardless of ownership or an agreement concerning use; and
(B) services related to that movement, including receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, and interchange of passengers and property[.]
49 U.S.C. § 10102(9). It defines “ rail carrier,” in relevant part, as “ a person providing common carrier railroad transportation for compensation.” 49 U.S.C. § 10102(5).
The first question to which we turn is whether the activities at issue are “ transportation by rail carrier,” and thus subject to the Termination Act. We begin with whether Susquehanna engages in “ transportation” activities, and follow up with whether it acts as a “ rail carrier.”
A. Whether Susquehanna’s Activities are “ Transportation”
It is undisputed that operations of the facilities include dropping off cargo, loading it onto Susquehanna trains, and shipping it. Thus the facilities engage in the receipt, storage, handling, and interchange of rail cargo, which the Termination Act explicitly defines as “ transportation.” See49 U.S.C. § 10102(9)(B). These operations fit within the plain text of the Termination Act preemption clause.
The State, however, argues that the operations must be “ integrally” or “ closely” related to providing rail service to qualify as “ transportation” under the Surface Transportation Board’s prevailing interpretation of the Act. But the State’s position seems based on a misreading of the Board’s caselaw. It is true that the Board wrote in Borough of Riverdale, 4 S.T.B. 380, 1999 WL 715272 (1999) (declaratory order), that “ facilities not integrally related to the provision of interstate rail service are not subject to our jurisdiction or subject to federal preemption.” Id. at 387. But consider the entire paragraph:
Finally, it should be noted that manufacturing activities and facilities not integrally related to the provision of interstate rail service are not subject to our jurisdiction or subject to federal preemption. According to the Borough, [Susquehanna] has established a corn processing plant. If this facility is not integrally related to providing transportation services, but rather serves only a manufacturing or production purpose, then, like any non-railroad property, it would be subject to applicable state and local regulation. Our jurisdiction over railroad facilities, like that of the former [Interstate Commerce Commission], is limited to those facilities that are part of a railroad’s ability to provide transportation services, and even then the Board does not necessarily have direct involvement in the construction and maintenance of these facilities. See Growers Marketing Co. v. Pere Marquette Ry., 248 I.C.C. 215, 227 (1941).We cannot determine from the current record whether this facility is actually a corn processing plant or some sort of transloading operation (for the transfer of corn syrup, for example) that is related to transportation services.
Id. (emphasis added). In other words, the Board distinguished “ manufacturing,” which is not sufficiently related to transportation by rail, and “ transloading,” which is.
Accepting the factual findings of the District Court in our case as true, it deals with “ transloading.” Hence, whatever the legal effect of the Board’s adverb “ integrally” (which we suspect is minimal or none), transloading qualifies as transportation.
In addition, the Court of Appeals for the Second Circuit has held that transloading activities fall within the Termination Act’s definition of “ transportation.” See Green Mountain R.R. Corp. v. Vt. (Green Mountain 2d Cir.), 404 F.3d 638, 642 (2d Cir.2005) (“ Certainly, the plain language [of the Termination Act] grants the [Surface] Transportation Board wide authority over the transloading and storage facilities undertaken by Green Mountain.” ). Thus we hold that transloading operations are “ transportation” under the Termination Act.
The State claims, however, that the District Court erred in not recognizing that Susquehanna engages in waste sorting and processing as well as transloading at its facilities. Sorting and processing, it argues, are not “ transportation” because they do not have the requisite nexus to the movement of property by rail. Rather, those activities can be done anywhere and need not have anything to do with the loading or shipment of solid waste. Amicus curiae National Solid Wastes Management Association, a trade association of solid waste collectors and processors, agrees. It explains that separating recyclables from other C & D waste is part of its members’ function as waste processors. Nat’l Solid Waste Mgmt. Ass’n Br. at 12-14. According to the Association, the food chain works as follows: people with waste pay a shipper to take title to it. The shipper then delivers the waste to a processor who, for a fee, separates out valuable materials, such as scrap metal, wood, and appliances. The shipper sells the valuables to recycling plants. It also engages a railroad to take the remaining waste to a landfill, and it pays the landfill to take title to the waste. Shippers make money by getting more for the waste-from the initial owner and from recycling plants-than they pay for processing, transport, and ultimate disposal. Here, according to the Association, we have a railroad acting as transport company, transloader, and processor. By charging a low combined transloading/sorting fee (Susquehanna’s expert refers to the transloading process as a “ loss leader” ), the railroad increases demand for its real service, which is hauling waste to landfills. But here’s the rub: waste processing is a heavily regulated industry. According to the Association, the railroad gains a competitive advantage if it can shield its processing activities from regulation by characterizing them as “ transportation by a rail carrier” and thus preempting burdensome state regulations. Id.
The District Court characterized the sorting activities at the facilities as the de minimis removal of items that did not comply with the shipper and landfill’s disposal contract. It further found that because sorting and loading took place at the same time, they were actually one process, the dominant character of which was loading. App. at Aa38 (D. Ct. Op.). The Court likened it to a loader removing a Toyota Camry from a shipment it knew was supposed to be Ford Explorers. Id. Determining how to review the Court’s characterization is difficult because the line between fact and law here is blurry. On one hand, Susquehanna’s expert plausibly characterized the removal of some items as an incidental and normal part of the loading process, id.(quoting App. at Aa1390-91 (Test. of William Rinnicke)), and the District Court, as factfinder, was entitled to credit that testimony. See T.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 577 (3d Cir.2000). Moreover, the Association’s characterization of this kind of sorting as “ waste processing” with value independent of the transloading process, while perhaps persuasive, is not in the record. On the other hand, even accepting the facts underlying Susquehanna’s characterization as true, we must apply those facts to the Termination Act’s definition of “ transportation” to decide whether they fit. See Evans v. United Arab Shipping Co. S.A. G., 4 F.3d 207, 213 (3d Cir.1993) (noting that “ whether the facts meet [a] statutory standard is an issue of law” (citations omitted)).
Given all of the record evidence, we conclude that whether the District Court’s characterization of the sorting process was correct is immaterial. The 2D regulations do not specifically regulate the sorting/processing aspect (to whatever extent there is one) of Susquehanna’s facilities, nor does the civil penalty order have anything specifically to do with sorting or processing as opposed to storage and loading. Thus the question of whether a state could specifically regulate the sorting process (apart from the loading process) is not before us. The regulations and penalty assessment here broadly regulate storage and transloading, irrespective whether the rail carrier also processes waste. Since both storage and transloading fall within the definition of “ transportation,” we need not consider whether the incidental processing activities do as well.
B. Whether the Transloading Activities Are Undertaken “ by a Rail Carrier”
The State argues that Susquehanna is not acting as a “ rail carrier” when it ships waste from the transloading facilities for two reasons: (1) Susquehanna does not operate the transloading facilities itself, and (2) it grants virtually all of its hauling capacity at each facility to one shipper.
1. Susquehanna’s Control over the Transloading Process
Our Hi Tech decision dealt with whether transloading activities were performed “ by a rail carrier.” Hi Tech Trans, LLC v. N.J., 382 F.3d 295, 308-10 (3d Cir.2004). In that case, we noted that Hi Tech, the transloader, operated the transloading facility under a license agreement with CPR, the rail carrier and owner of the land. Id. at 308.Hi Tech constructed and maintained the facility. Id. Moreover, the license agreement established that Hi Tech was not CPR’s agent, and CPR disclaimed any liability from Hi Tech’s operations. Id. CPR did not charge shippers a fee for using the Hi Tech transloading facility (presumably, the shippers paid Hi Tech for the service).Id.
This case is different because (1) the rail carrier owned (or leased) the land and built the transloading facilities, (2) shippers pay the rail carrier to load their freight, and (3) the rail carrier does not disclaim liability for the loading process. The Board noted that the Hi Tech situation was “ substantially different from a situation in which a rail carrier builds and owns a truck-to-rail transloading facility, and holds it out to the public as its own facility, but chooses to have a contract operator,” which, presumably, would qualify as transportation by rail carrier. Hi Tech Trans, LLC (Hi Tech STB), 2003 WL 21952136, atn. 13 (S.T.B.2003) (denying request for a declaratory order). Relying on this language, the District Court concluded that our case is just what the Board describes: a rail carrier (Susquehanna) building, owning, and advertising its own transloading facilities, which it uses a contract agent to operate.
While the District Court’s conclusion that this case is distinguishable from Hi Tech is correct, a footnote from our Hi Tech decision complicates the issue. We wrote that “ [w]e do not … suggest that a party can contractually determine its status as a railroad carrier for regulatory purposes.” 382 F.3d at 308 n. 19.This is a perplexing statement because the contract before us obviously plays some role in determining the “ nature of [the loader’s] … relationship to [the railroad].” Id.That is, after all, why it exists-to define the parties’ relationship. Our point in Hi Tech, though, was that railroads and loaders may not change by contract what in practice is a substantively different relationship.
Here, Susquehanna contracts with shippers to load their waste, which it then pays a loading agent to do on its behalf. In Hi Tech, the loader contracted with shippers directly. The State argues that this is a distinction without a material difference, as Susquehanna essentially just funneled money from shipper to loader (often the exact same amount). The difference, however, is that Susquehanna, by contracting directly with the shipper, assumed more liability than the Hi Tech rail carrier. Susquehanna could be sued for breach of contract (or potentially negligence or some other tort) if something went wrong; the Hi Tech railroad could not, as it was not a party to the shippers’ and loaders’ agreements. We regard this as a substantive difference between the Hi Tech case and this one, and therefore conclude that the District Court appropriately distinguished it.
2. Susquehanna’s Guaranteed-Capacity Contracts
The State also argues that Susquehanna does not qualify as a rail carrier when it hauls freight from the transloading facilities because it does not act as a common carrier (though the State concedes that Susquehanna does so in other contexts). This is relevant because only common carriers fit the Termination Act’s definition of “ rail carrier.” 49 U.S.C. § 10102(5). The statute does not further define the term “ common carrier,” but the general definition is “ [a] carrier that is required by law to transport passengers or freight, without refusal, if the approved fare or charge is paid.” BLACK’S LAW DICTIONARY 205 (7th ed.1999). The core of the State’s argument is that, because Susquehanna sells in advance all (the contaminated-soil facility) or nearly all (the C & D facilities) of its capacity to one shipper, it offers nothing to the general public, as the definition of “ common carrier” requires.
The common law differentiates between “ private carriers” and “ common carriers.” See, e.g., York Co. v. Cent. R.R., 70 U.S. (3 Wall.) 107, 112, 18 L.Ed. 170 (1865) (holding that common carriers may limit their liability by undertaking private carriage). We have held that
[t]he distinctive characteristic of a common carrier is that he undertakes to carry for all people indifferently, and hence is regarded in some respects as a public servant. The dominant and controlling factor in determining the status of one as a common carrier is his public profession as to the service offered or performed.
Kelly v. Gen. Elec. Co., 110 F.Supp. 4, 6 (E.D.Pa.), aff’d and adopted as circuit precedent,204 F.2d 692, 692 (3d Cir.1953). A private carrier, on the other hand, offers services to limited customers under limited circumstances and assumes no obligation to serve the public at large. Lone Star Steel Co. v. McGee, 380 F.2d 640, 645 (5th Cir.1967) (citing Ward Transp., Inc. v. Pub. Untils. Comm’n, 151 Colo. 76, 376 P.2d 166, 169 (1962)).
Susquehanna was certified by the Interstate Commerce Commission as a common carrier decades ago, and that certification is current. But, as then-Circuit Judge Warren Burger noted, “ a common carrier may in some circumstances operate as a private carrier.” Overseas Nat’l Airways, Inc. v. Civil Aeronautics Bd., 307 F.2d 634, 636 (D.C.Cir.1962); see also York Co., 70 U.S. at 112.Even so, “ a claim of such private carriage must show that the private activity is distinguishable from the public or common transportation business regularly carried on. The claimed private carriage must be viewed in relation to and against the background of the entire carrying activity.” Overseas Nat’l Airways, 307 F.2d at 636.
Here, though the record on this issue is scant, a Susquehanna officer testified that it publishes its charges for hauling waste, App. at Aa1216, which indicates that it holds itself out to the public as available to transport waste. Cf.49 U.S.C. § 11101(b) (requiring that common carriers provide their rates upon request). Moreover, as Susquehanna points out, there is nothing in the record (and no apparent allegation) that it has ever turned away a potential waste customer. Thus, if we follow the D.C. Circuit Court of Appeals’s command to view Susquehanna’s waste-hauling operation “ against the background of the entire carrying activity,” it appears merely part of its overall common-carriage operation. Overseas Nat’l Airways, 307 F.2d at 636.Susquehanna holds itself out as willing to haul waste for a reasonable and publicly available rate; it does, in fact, haul waste for multiple customers; and there is no evidence of it turning away a customer. Moreover, Susquehanna’s expert testified (credited by the District Court) that the waste-hauling industry lends itself to arrangements in which a middleman “ shipper” consolidates demand so as to generate multiple carloads that can be transported to a landfill as a group. This saves the cost of car-switching down the line. Allowing multiple shippers to load at a single transload facility would be difficult because their waste would have to be stored separately (as they presumably would not have contracts with the same landfills), requiring more space than many facilities can easily muster given the narrowness of railroad rights-of-way. Thus the norm is for railroads to build large customers their own dedicated facilities at different points on the same rail line (and to leave some capacity open for smaller shippers).
In the context of shipping bulk waste, we believe the concept of “ common carrier” must be flexi
