dissenting:
Permeating the entire opinion of my two colleagues and the memorandum of the trial court below is the strange assumption that the emergency powers of the Federal Railroad Administrator under 45 U.S.C. § 432 are limited to little problems, that if what confronts us is a big problem, then somehow the Administrator has no authority to deal with it on an emergency basis. He must either isolate and segmentize the problem,1 or conduct time-consuming hearings under the usual nonemergency procedure, or go into a federal court for the usual time-consuming judicial hearing to get an order appropriate to deal with the situation. One thing he cannot do, according to my colleagues and the trial judge, is deal with the whole problem on the basis of an emergency order.
It may very well be that when Congress enacted section 432 granting the FRA emergency powers it did not contemplate that one entire railroad track system would be in the sad shape that the Louisville & Nashville Railroad Co. obviously is in today —indeed, that a major part of the railroad trackage of the entire United States is in today. But that does not alter the fact that if “any facility . . . is in unsafe condition and thereby creates an emergency situation involving a hazard of death or injury to persons affected by it, the Secretary may immediately issue an order, without regard to the provisions of section 431(b) of this title, prohibiting the further use of such facility . until the unsafe condition is corrected,” 45 U.S.C. § 432. The statute puts no limit on the size of the facility, or the cost to correct the existing “hazard of death or injury.”
My colleagues freely admit, “[I]t is our opinion that the railroad tracks may be considered to be a ‘facility’ under the statute.”2 If railroad tracks are a “facility,” then there is no limit, minimum or maximum, as to how many miles of railroad track constitute a “facility” subject to being dealt with by the Administrator under his emergency powers of section 432.
The responsible expert agency, the Federal Railroad Administration, has asserted that the L & N Railroad has the “worst safety record in the nation with respect to the transportation by rail of hazardous materials.”3 My colleagues pointed out in their previous memorandum in this case that “[wjith the one accident involving 16 deaths in 1978 and another involving 3 deaths in 1977 the L & N is 1st in those periods, as to loss of life . . .” 4 Further, the L & N is also first in the number of railroad cars damaged in the first six months of 1978. In number of accidents, the number of cars involved, and the number of cars releasing hazardous materials, it stands high among the worst offenders.
*805These accidents have occurred over various portions of the L & N tracks, they have been sufficiently numerous, sufficiently scattered, and sufficiently hazardous to raise a question about the six thousand miles of the main lines and branches of the L & N system. There would seem to be an adequate factual foundation to justify the Department of Transportation’s concern over the L & N tracks and carriage of hazardous materials and for the invocation of the emergency powers of section 432. I therefore disagree with my colleagues’ statement, “[T]he allegations that there are ‘serious and widespread safety deficiencies throughout’ the L & N system does not constitute a determination that ‘any facility .' is in unsafe condition.’ ”5 The FRA’s allegation as to “widespread safety deficiencies throughout” does constitute a determination that “any facility is in unsafe condition,” because the evidence — the statistics of accidents, their location, character, and frequency — shows that the entire track facility is in an unsafe condition.
The remedy invoked by the FRA order is specifically directed to the unsafe track condition. “The order, inter alia, restricted the movement of all trains carrying any hazardous materials to a speed that did not exceed 30 miles per hour, required a particular placement of certain long and empty cars in certain consists, and doubled the required frequency of track inspections coupled with a requirement that certain track be inspected on foot,"6 I submit that this is a remedy designed for the hazardous deficiencies found by the Administrator to exist in the L & N track system.
Of course, not every mile of the six thousand is defective, but it only takes one stretch of defective track to cause a derailment. If these stretches of defective track are numerous and scattered throughout the system, then the only way to correct the condition is meticulously to go over the entire system and only remove the safety restrictions where the track after inspection can be certified safe. This is exactly the procedure the Administrator is following after his emergency order. On 6 April and 8 June the emergency order’s safety requirements were rescinded with regard to various sections of track.6 7
If the Administrator had been confronted with a few routine safety violations or a limited number of accidents in a limited area, then a court might very well place the burden of showing detailed defects in the track system on the FRA, as well as confine the restrictions to limited, defined sections. But here it is unquestioned that eleven of the eighteen serious accidents involving hazardous materials, all with substantial loss of property and some lives, were caused by track defects, and track defects not localized in any particular part of the system. While, as my colleagues recount, “during the first 6 months of 1978 alone 91 track inspections covering 854 miles of L & N track were conducted by FRA track inspectors,” these inspections “allegedly disclosed 1,288 instances of noncompliance with FRA track standards,”8 on the evidence before us of the L & N safety record over the entire system the burden of inspecting more than 6,000 miles of main and branchline track should not be placed on the federal safety inspectors. I submit that in this situation the burden properly shifts to the L & N Railroad to come forward and show that inspections of portions of the track have been made and that these portions are safe, and then to ask the Administrator to rescind his emergency safety order with regard to those designated portions. This is the procedure the Administrator is now following, and of which my colleagues disapprove.
I cannot agree with my colleagues’ support of the trial judge’s directing the FRA “to be ‘more explicit’ and particularize its *806complaint rather than issue a broad brush order of the character of Emergency Order No. 11.” 9 Nor can I agree that “the Administrator’s order is deficient in failing to notify the railroad what specific steps it must take in order to satisfy the standards that the Administrator was imposing.”10
The Administrator issued a “broad brush order” because he was confronted with a broad brush problem, i. e., the breakdown of safe track conditions scattered all over the L & N system. As for notifying the railroad what specific steps it should take, the FRA pointed to its specific standards issued in regard to track safety, freight car safety, power brakes, and locomotive inspections, and said in effect to the L & N, “Comply with these duly promulgated safety standards.” “The District Court found these to be wholly inadequate specifications and particularizations,”11 and my colleagues agree. But, if these are the regularly promulgated safety standards, what is wrong with the FRA referring to them, insisting on the L & N complying, and specifying that if the L & N complies, then the railroad will be in conformity with the safety standards and the restrictions can be lifted? Why must the FRA now spell out specific steps to be taken to comply with duly issued safety regulations? The determination of the specific steps to be taken to comply with regulations is the responsibility of the railroad, the regulated entity. It is not the obligation of the Government agency to lead the railroad by the hand.
Leading the railroad by the hand is just about what the FRA has been doing for the past few months, but apparently not too successfully. As my colleagues cite the oral argument in the district court, counsel for the Administrator stated:
We inspect the track. Our indications have been each time we have inspected that portion which they say is adequate, it isn’t.
Then we go back to them and say, [cjonform that section of the track to the regulations, which have always existed and which nobody disputes exist, as far as how many nails or whatever else you use to hold down the tracks . . . ,12
In other words, the Administrator’s personnel have been pointing the railroad to the duly authorized safety standards, saying, “Comply with these, establish that the track is safe, and we will lift the safety restrictions imposed by the emergency order.” That is just exactly the approach that the Administrator should be taking in this overall emergency situation.
These issues have been before this same panel of three judges before. On 26 February 1979 my two colleagues, over my dissent, entered an order staying the effectiveness of the Administrator’s emergency safety order. On 4 April 1979 the full court of nine judges vacated my two colleagues’ stay of the 26 February order, with only my two colleagues dissenting, thus restoring the effectiveness of the Administrator’s emergency safety order. Strangely enough, the district court cited and relied on the decision of my two colleagues, which had been vacated, without considering the reasons stated in my dissent which caused the en banc court to set aside the 2-1 panel action. One would think that the district court would have realized that a 2-1 panel decision, vacated by a 7-2 en banc vote, was the proverbial “slender reed” on which to rely. My two colleagues, encouraged by the district court’s decision, although on a different record, have gone back to their first and discredited line of reasoning on this second opportunity.
The dangerous condition with which the Administrator is trying to deal is undeniably persistent and widespread. There is absolutely nothing in the statute or practical common sense that requires the Administrator to deal with it piecemeal, by seg*807ments of the track “facility,” or by any method other than the manner in which he has dealt with it as a large-scale emergency under section 432. I would stay the order of the district court enjoining the effectiveness of the Administrator’s safety order.
. My colleagues say: “However, if the Administrator determines that particularized sections of track (facility) or designated equipment create a hazard to justify an Emergency Order he should issue an Order specifying the particular track or equipment in question.” Majority opinion, 199 U.S.App.D.C. at —, 617 F.2d at 800. On the basis of this as I see the record, the L & N main line and branches of about 6,000 miles could be divided up into sections, and a separate order for each of the sections, of the same tenor as for the whole system, issued. There is no practical purpose to doing piecemeal what the FRA has already done for the entire system, particularly since as I discuss later, the Administrator is following the procedure of lifting the restrictions on each section of the track as inspection shows it to be safe.
. Id. at —, 617 F.2d at 795.
. FRA Emergency Order No. 11, at 8-9 (7 Feb. 1979).
. Louisville & Nashville R. R. v. Sullivan, No. 79-1171, mem. op. at 7 (D.C.Cir. 26 Feb. 1979).
. Majority op. 199 U.S.App.D.C. at —, 617 F.2d 793 at 795 (emphasis deleted).
. Id. 199 U.S.App.D.C. at —, 617 F.2d 793 at 794 (emphasis added).
. See id. 199 U.S.App.D.C. at---, 617 F.2d 793 at 795-796.
. Id. 199 U.S.App.D.C. at —, 617 F.2d at 798.
. Id. 199 of — U.S.App.D.C. at 798 of 617 F.2d.
. Id. 199 U.S.App.D.C. at —, 617 F.2d at 798.
. Id. —, at 799.
. Id. 199 U.S.App.D.C. at —, 617 F.2d at 796.