City of New York v. US Dept. of Transp.

• Decision Date: 08 December 1988
• Docket Number: No. 87 Civ. 1443 (MGC).,87 Civ. 1443 (MGC).
• Citation: 700 F. Supp. 1294
• Parties: The CITY OF NEW YORK, Plaintiff, v. The UNITED STATES DEPARTMENT OF TRANSPORTATION and the Research and Special Programs Administration of the United States Department of Transportation, Defendants, and Arkansas Power & Light Company, Baltimore Gas & Electric Company, Duke Power Company, GPU Nuclear Corporation, Louisiana Power & Light Company, Mississippi Power & Light Company, Pennsylvania Power & Light Company, Public Service Company of Colorado, Public Service Electric & Gas Company, The Connecticut Light & Power Company, Western Massachusetts Electric Company, Wisconsin Electric Power Company, and The State of Connecticut, Defendants-Intervenors.
• Court: U.S. District Court — Southern District of New York

700 F. Supp. 1294

The CITY OF NEW YORK, Plaintiff, v. The UNITED STATES DEPARTMENT OF TRANSPORTATION and the Research and Special Programs Administration of the United States Department of Transportation, Defendants and Arkansas Power & Light Company, Baltimore Gas & Electric Company, Duke Power Company, GPU Nuclear Corporation, Louisiana Power & Light Company, Mississippi Power & Light Company, Pennsylvania Power & Light Company, Public Service Company of Colorado, Public Service Electric & Gas Company, The Connecticut Light & Power Company, Western Massachusetts Electric Company, Wisconsin Electric Power Company, and The State of Connecticut, Defendants-Intervenors.

No. 87 Civ. 1443 (MGC).

United States District Court, S.D. New York.

December 8, 1988.

Peter L. Zimroth, Corp. Counsel of City of New York, New York City, for plaintiff; Stephen P. Kramer, Andrew Schwartz, of counsel.

Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City by Paul K. Milmed, Asst. U.S. Atty., and George W. Tenley, Jr., Chief Counsel, Barbara Betsock, Sr. Atty., Research and Special Programs Admin., U.S. Dept. of Transp., for defendants.

LeBoeuf, Lamb, Leiby & MacRae, New York City by Harry H. Voigt, Leonard M. Trosten, Mindy A. Buren, Judith Fox, for defendants-intervenors Arkansas Power & Light Co., et al.

Joseph I. Lieberman, Atty. Gen., Hartford, Conn. by Carl J. Schuman, Asst. Atty. Gen., and Edward H. Burnbaum, Lynch Rowin Burnbaum & Crystal, P.C., New York City, for defendant-intervenor State of Conn.

OPINION AND ORDER

CEDARBAUM, District Judge.

This is the latest skirmish in an ongoing battle between the United States Department of Transportation ("DOT" or "the Department") and the City of New York over the trucking of spent nuclear fuel through the City. In an earlier phase, DOT persuaded the Second Circuit that the City's showing that barging was a safer alternative than trucking was not an appropriate attack on DOT's truck routing regulation, but rather would be considered by DOT in connection with the City's non-preemption application.¹ In denying the City's non-preemption application, the Department now takes the position that unless the City makes a threshold showing of exceptional or emergency circumstances, the Department will never consider the relative safety of barging as compared with trucking for the transportation of spent nuclear fuel.

This action arises from the parties' conflicting interpretations of section 112(b) of the Hazardous Materials Transportation Act, 49 U.S.C.App. § 1811(b). The City of New York brought this action pursuant to 28 U.S.C. § 1331, 28 U.S.C. §§ 2201-02, and 5 U.S.C. §§ 701-06 against DOT and the Research and Special Programs Administration of DOT for review of a ruling by the Secretary of Transportation ("the Secretary") denying the City's application under section 112(b). Plaintiff and defendants have moved for summary judgment pursuant to that statute, as has defendant-intervenor the State of Connecticut. Defendants-intervenors Arkansas Power & Light Company, et al., have moved for judgment on the pleadings. The parties agree that there is no genuine issue as to any material fact, and therefore summary judgment is appropriate. For the reasons discussed below, the City's motion is granted and the case is remanded for further proceedings. Accordingly, defendants' motion and defendants-intervenors' motions are denied.

GENERAL BACKGROUND

The Hazardous Materials Transportation Act, 49 U.S.C.App. §§ 1801-1812 ("HMTA"), was enacted in 1975 to "improve the regulatory and enforcement authority of the Secretary of Transportation to protect the Nation adequately against the risks to life and property which are inherent in the transportation of hazardous materials in commerce." HMTA § 102, 49 U.S.C.App. § 1801. Among its provisions, the Act authorizes the Secretary to issue regulations establishing routing rules for the safe transportation of hazardous materials. HMTA § 105(a), 49 U.S.C.App. § 1804(a). HMTA also provides that any state or local requirement inconsistent with such regulations or any other regulation promulgated pursuant to the Act is preempted. HMTA § 112(a), 49 U.S.C.App. § 1811(a).

In 1976, New York City amended its health code to prohibit the transportation of spent nuclear fuel and other large quantities of radioactive material through the City without a Certificate of Emergency Transport from the Commissioner of Health.² The amendment effectively bans the use of motor vehicles for the carriage of spent fuel from nuclear reactors operating on Long Island because all roads from Long Island pass through the City.

The Government promptly challenged the validity under HMTA of the City's amendment. United States v. City of New York, 76 Civ. 273 (IBW) (S.D.N.Y. Jan. 15, 1976). The Government's motion for a preliminary injunction was denied, and the case was transferred to the suspense docket by stipulation. Thereafter, Associated Universities, Inc. ("Brookhaven"), which operates Brookhaven National Laboratories on Long Island, petitioned DOT to declare the City's requirement preempted by section 112(a) of HMTA. DOT ruled that HMTA did not preempt the City's amendment. 43 Fed. Reg. 16,954 (1978). DOT concluded that while section 105(a) of the Act authorizes the Secretary to promulgate rules governing the routing of hazardous materials, the Secretary had not yet exercised that authority. The City was therefore free to enact its own routing rule.

In its ruling, DOT noted that if national routing rules were issued in the future, the City ordinance might become preempted unless the City received a non-preemption ruling from DOT, as permitted by section 112(b) of HMTA, 49 U.S.C.App. § 1811(b). DOT had published regulations prescribing the procedures for an application under section 112(b). 41 Fed.Reg. 38,167 (1976) (codified at 49 C.F.R. §§ 107.215-107.225).

Four months after its denial of Brookhaven's petition, the Department published an Advance Notice of Proposed Rulemaking concerning the "need, and possible methods for establishing routing requirements under the Hazardous Materials Transportation Act applicable to highway carriers of radioactive materials." 43 Fed.Reg. 36,492 (1978). DOT had become concerned that the increasing number of state and local laws which were adopted to regulate the transportation of radioactive materials were decreasing overall safety to the public and adversely affecting interstate commerce. After giving interested persons an opportunity to participate in the rulemaking proceedings, DOT published a proposed rule for the highway routing of radioactive materials. 45 Fed.Reg. 7140 (1980).

In commenting on the proposed rule, the City expressed its disappointment at DOT's failure to consider barging as an alternate means of transporting large quantities of radioactive material around urban centers which lack circumferential highways. The City accompanied its response to the proposed rule with a request that DOT issue a non-preemption determination pursuant to section 112(b) for section 175.111(1) of the City's Health Code. On July 31, 1980, DOT denied the City's request as premature because no final rule had yet been promulgated with which the City's regulation could be deemed inconsistent.

DOT published its Final Rule on January 19, 1981. 46 Fed.Reg. 5298 (1981) (codified at 49 C.F.R. §§ 171-73, 177). Known as HM-164, the rule classifies various types of hazardous material, and specifies the highway routes to be used by carriers in transporting each type. For spent nuclear fuel which is classified as "highway route controlled quantity radioactive material," the rule provides in relevant part:

Unless otherwise permitted by this section, a carrier and any person who operates a motor vehicle containing a package of highway route controlled quantity radioactive materials as defined in § 173.403(1) of this subchapter shall ensure that the vehicle operates over preferred routes selected to reduce time in transit, except that an Interstate System bypass or beltway around a city shall be used when available.

(1) A preferred route consists of either or both:

(i) An Interstate System highway for which an alternative route is not designated by a State routing agency as provided in this section, and

(ii) A State-designated route selected by a State routing agency (see § 171.8 of this subchapter) in accordance with the DOT "Guidelines for Selecting Preferred Highway Routes for Highway Route Controlled Quantity Shipments of Radioactive Materials".

49 C.F.R. § 177.825(b) (1987).³ It is undisputed that section 175.111(1)(4) of the City's Health Code is inconsistent with HM-164 since the City's provision bans the transportation of spent nuclear fuel through the City. See City's application for a non-preemption determination (Dec. 24, 1984) (Ex. K at 2).⁴

By a letter of March 20, 1981, the City renewed its application for a non-preemption ruling. On January 15, 1982, DOT sent the City a letter indicating that the City's non-preemption application would probably not be approved for lack of substantial supporting documentation. Ex. B. The seven-page letter set out the analysis the City had to perform in order to present a proper request for a waiver. In the interim, the City had commenced an action in this district to invalidate HM-164. On February 19, 1982, the court held that HM-164 violated both HMTA and the National Environmental Policy Act ("NEPA"). In an amended opinion filed on May 6, 1982, the court invalidated HM-164 only insofar as it preempted the City's Health Code. City of New York v. United States Department of Transportation, 539 F.Supp. 1237 (S.D.N.Y.1982).

On August 10, 1983, the Second Circuit reversed the judgment of the district court, and remanded the case with instructions to enter a judgment upholding the validity of HM-164. City of New York v. United States Department of Transportation, 715 F.2d 732 (2d Cir.1983). The...