Request By:
Mr. Jimmy P. Turner, Chairman
Railroad Commission
Commonwealth of Kentucky
1024 State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Reid C. James, Assistant Attorney General
This is in reply to your request of February 28, 1978, for an opinion of this office regarding the authority of the Railroad Commission to regulate railroads in the Commonwealth. Specifically you have asked,
1) Whether the Railroad Commission can require the display on all railroad care or tanks containing toxic or volatile materials a sign to that effect of sufficient size and nature to be easily viewable, and
2) Whether in the event the Railroad Commission determines that a certain railroad line is in such a bad state of repair as to create reasonable fears as to the results of transportating the material, can the Railroad Commission, after a hearing at which such determination is made, direct the railroad company not to transport hazardous materials over that line?
It is the opinion of this office that both of your inquiries must be answered in the negative.
There is no specific statute granting the Railroad Commission the authority to require carriers to post a notice warning of the existence of dangerous or volatile substances contained in its transport care. While KRS 276.030(3) denotes that the Commission shall exercise a general supervision over the railroads of this state, such general powers do not include the authority to require the posting of warning notices.
KRS 276.450 does give the Commission the authority to require the proper packaging and labeling of explosive compunds transported by carriers where passengers are being transported at the same time. However, even this statute does not require that the carriers post notice on the outside of the vehicle regarding the dangerous nature of its contents.
In regard to your second inquiry, KRS 276.410(1) is the applicable statutory provision. It provides,
Whenever the Railroad Commission, after a personal examination, finds that repairs are necessary upon any railroad property, or when, from complaint made or its own knowledge, the commission has reason to believe that the tracks, bridges, tunnels or other structures of any railroad company are in an unsafe or dangerous condition . . . the Commission shall give notice in writing to the company owning or operating the railroad, stating the repairs, improvements or changes that the commission deems necessary, and shall give the company an opportunity to be heard in reference thereto. If a hearing is held, and the company fails to make such repairs, improvements or changes within a reasonable time after the hearing, and the commission believes that such repairs, improvements or changes are proper and necessary, the commission shall lay the facts before the Attorney General for his action, and shall report the facts fully to the next legislature. (Emphasis added).
This language of KRS 276.410(1) therefore indicates that while the Commission may recommend to railroad carriers the repair and improvement of their tracks and facilities, it may not emforce its recommendations pro se, nor may it condemn portions of the carriers route as to the transportation of particular types of cargo.
This position is supported by the decision of
Louisville & N.R. Co. v. Commonwealth et al., Ky., 226 S.W. 113, 117 (1920). The court there noted,
. . . when the commission has investigated the conditions in respect to the matters mentioned, all it can do is to call the attention of the deliquent company to the repairs, improvements, or changes that in the opinion of the commission ought to be made, and then, if the company neglects or refuses to make them, lay the facts before the Attorney General of the state for his action, and report to the Legislature what it has done. (Emphasis added).
I trust the foregoing has satisfactorily answered your inquiries, and am sorry that our opinion could not be more favorable for the Commission.