City of New York v. Ritter Transp. Inc., 80 Civ. 5401.

• Decision Date: 05 June 1981
• Docket Number: No. 80 Civ. 5401.,80 Civ. 5401.
• Citation: 515 F. Supp. 663
• Parties: CITY OF NEW YORK, Plaintiff, v. RITTER TRANSPORTATION INC., Ritter Transportation Co., H. R. Ritter Trucking Co., Inc. Walter Caulder, Herbert R. Ritter, and Donald W. Ritter, Defendants.
• Court: U.S. District Court — Southern District of New York

515 F. Supp. 663

CITY OF NEW YORK, Plaintiff, v. RITTER TRANSPORTATION INC., Ritter Transportation Co., H. R. Ritter Trucking Co., Inc. Walter Caulder, Herbert R. Ritter, and Donald W. Ritter, Defendants.

No. 80 Civ. 5401.

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

June 5, 1981.

Allen G. Schwartz, Corp. Counsel, by Barry L. Schwartz, New York City, for plaintiff City of New York.

Law Firm of William F. O'Connor by Douglas E. McKeon, New York City, for defendants.

Lawrence W. Bierlein, Washington, D. C., for Amicus Curiae National Tank Truck Carriers, Inc.

OPINION

GRIESA, District Judge.

This is a motion to vacate a preliminary injunction which was entered in Supreme Court, New York County, and which was continued following removal of the case to this court. The injunction directs defendants to comply with certain provisions in the New York City Fire Department regulations, known as F.P. Directive 5-63 §§ 10.2 and 10.4b, which deal with the routes which may be used for the transportation of hazardous gases in and around New York City. The motion is denied.

I.

The action is against Ritter Transportation, Inc. and related companies and individuals, which operate a trucking business based in New Jersey.

On August 7, 1980 a Ritter truck carrying liquefied petroleum gas developed a leak while traveling across the George Washington Bridge from New Jersey to New York City bound for Connecticut. The presence of this gas leak on a crowded bridge presented a condition of the utmost danger. It was necessary to clear the bridge, and block all traffic from using it. The incident lasted for nearly eight hours. There was a long delay in remedying the leak because of Ritter's inadequate emergency equipment. A traffic jam of monumental proportions was created and thousands of persons experienced substantial delays in their travel — in addition to the great danger presented from the incident.

New York City Fire Department regulations F.P. 5-63 §§ 10.2 and 10.4b provide that tank truck quantities of liquefied petroleum gases and other gases deemed to be hazardous by the Fire Commissioner cannot be transported through New York City unless "no practical alternative route" exists and the Fire Commissioner grants specific permission for the trip. Ritter had not obtained any permission for the August 7, 1980 trip. Indeed, shipments of tank truck quantities of hazardous gases bound from New Jersey for points north of the City are generally required to avoid the City entirely.

On August 27, 1980 the City of New York obtained an ex parte temporary restraining order in Supreme Court, New York County, enjoining Ritter from further violation of the Fire Department regulations. The hearing on the City's motion for a preliminary injunction was held before Justice Whitman on September 10, 1980. On September 17 Justice Whitman issued a memorandum granting the motion for preliminary injunction and directing the parties to settle an order. Before an order was signed in the state court, defendants removed the action to the federal court. On October 3, 1980 this court entered an order based upon Justice Whitman's ruling.

Defendants then made their motion to vacate the preliminary injunction. This motion was heard on October 8, 1980. Extensive briefs have been received since the hearing.

Defendants' principal arguments are as follows:

(a) That the Fire Department regulations are inconsistent with, and preempted by, federal law;

(b) That the regulations are an unconstitutional burden on interstate commerce;

(c) That the regulations are void for vagueness.

II.

Before discussing the legal issues, it is useful to set forth something of the background of the present form of the Fire Department regulations. Milton Fishkin, Chief Inspector of the Fire Department, testified in this regard.

The history of the current regulations goes back to 1962, when there was a disastrous accident in Berlin, New York, involving a vehicle carrying liquefied petroleum gas, which crashed, resulting in ten deaths, a large number of injuries and a great amount of property damage. A Fire Department regulation was adopted in 1962, which was revised in 1963. The 1963 regulation is known as "F.P. Directive 5-63." Section 10.2 of this directive provided:

"10.2. Liquefied petroleum gases; liquefied chlorine; vinyl chloride or any other gases deemed to be hazardous by the Fire Commissioner shall not be stored, transported or delivered in tank trucks within the city."

This regulation would appear to impose a flat prohibition on the transportation of tank truck quantities of liquefied petroleum gas in New York City.

However, the New York City Administrative Code pertaining to the Fire Department contained the following provision, numbered C19-95.1, adopted in 1962:

"§ C19-95.1 Permit required. — It shall be unlawful to transport without a permit within the city of New York gases as defined in subdivisions 20 and 20a of Section C19-2.0 of the code, in quantities exceeding these sic specified under subdivisions 4 to 13 inclusive of section C19-91.0 a of the code."

Subdivisions 20 and 20a of Section C19-2.0 of the Administrative Code refer to gases under pressure in a gaseous or liquefied form which are combustible or which will form an explosive mixture. Subdivisions 4-6 of § C19-91.0 a refer to noncombustible gases. Subdivisions 7-13 of § C19-91.0 a describe relatively small quantities of combustible gases.

The Fire Department read Section 10.2 of F.P. Directive 5-63 and Administrative Code Section C19-95.1 in conjunction with each other, as prohibiting the transportation of tank trucks of hazardous gases in New York City, except when such transportation was permitted by the Fire Department.

The record in this case contains a copy of a letter from the Fire Department to the Port Authority of New York dated April 2, 1964 stating that on March 30, 1964 Fire Commissioner Edward Thompson had advised carriers of bulk compressed flammable gas that a route had been established for transportation of such gas through New York City. Shipments to Long Island were directed via a particular route through the City:

"... entry may be made only via the New England Thruway — to the Throgs Neck Bridge — thence via Clearview Expressway — and easterly on Long Island Expressway to the City Line."

The letter also states:

"Trucks which are destined for other Counties or States are prohibited from using all City Streets."

The notice of March 30, 1964 is not in evidence. Attached to the April 2, 1964 letter is a list of companies presumably advised of the established route, including H. R. Ritter Trucking Co. The Fire Department took the view that a permit was required even for use of the designated route, for each shipment that needed to pass through the City.

Over the years, there was no systematic enforcement of the above-described regulations. Some confusion existed about the meaning of the regulations. The Fire Department had a practice of granting permits over the telephone without even recording such permits. Law enforcement agencies found it difficult to conduct consistent surveillance to determine whether shipments of hazardous gases were proceeding through the City without authorization.

In 1979 F.P. Directive 5-63 was amended in an attempt to clarify the regulations. Sections 10.4a and 10.4b were added. Section 10.4a provides:

"10.4a. Interstate or intrastate transportation of compressed gases through the city, with no pickup or delivery in the city, shall be only in accordance with routes and times as prescribed by the Fire Commissioner, when such transportation is in tank trucks or other vehicles which do not conform to Fire Department requirements and have not been issued a Fire Department permit."

Section 10.4b provides:

"10.4b. Interstate or intrastate transportation of a hazardous compressed gas, prohibited by Section 10.2 of these specifications or otherwise banned in the public interest by the Fire Commissioner, may be authorized by the Fire Commissioner, providing the vendor can show that no practical alternative route to passage through the city exists or that a critical emergency requires delivery in the city. Any truck shipments so authorized shall conform to routes, times, and safety conditions specified by the Fire Commissioner."

According to the testimony of Chief Inspector Fishkin, Section 10.4a, despite its general reference to "compressed gas," is intended to refer to non-hazardous compressed gases such as nitrogen and carbon dioxide. The limitations of Section 10.4a apply only to tank trucks which do not conform to Fire Department requirements and have not been issued a Fire Department permit. According to Fishkin's testimony, the Fire Department requirements on tank trucks are basically the same as the requirements of the United States Department of Transportation. No further discussion of the effect of Section 10.4a is necessary for the purposes of the present case.

Section 10.4b is, of course, directly relevant to the present case, because it is the current provision dealing with liquefied petroleum gases and other hazardous compressed gases. The effect of this section is to ban the transportation of such gases in tank truck quantities in New York City, except when authorized by the Fire Commissioner; and the section specifies that no such authorization may be granted unless it is shown that there is no practical alternative route outside the city or that a critical emergency requires delivery in the city. When authority for shipments of truckload quantities of liquefied petroleum gas is obtained, the shipment must conform to the routes, times and other safety conditions specified by the Fire Commissioner.

In implementing § 10.4b the Fire Department takes the position that the only shipments of bulk hazardous gas which need to pass through the City are those shipments bound for Long Island. Due to the location of bridges to Long Island,...