Dissenting Opinion by
Senior Judge Kalish:I respectfully dissent.
DOT, as the administrator of federal funds, is the agency which is primarily responsible for ensuring compliance with the federal law. The determination of which projects receive federal funds is not made by the PUC, rather it is a decision made by DOT, subject to approval by the federal government. This determination is not always made prior to the PUC’s cost allocation hearing.
The eligibility of a project for federal funds and the classification of that project as a “federal aid project” are two different things. The distinction of these two concepts, and the purview of DOT to determine which project receives federal funds, prevents 23 C.F.R. §646.210 from preempting the PUC’s authority under 66 Pa. C. S. §2704.
I conclude that the PUC did have the authority to allocate costs to Conrail. Therefore, I would affirm the trial court’s order.