CSX Transp., Inc. v. Public Utilities Com'n of Ohio

Decision Date13 April 1990
Docket NumberNo. 88-4185,88-4185
Citation901 F.2d 497
PartiesCSX TRANSPORTATION, INC., Consolidated Rail Corporation, Norfolk and Western Railway Company, and Grand Trunk Western Railroad Company, Plaintiffs-Appellees, v. The PUBLIC UTILITIES COMMISSION OF OHIO, and Thomas V. Chema, Ashley C. Brown, Gloria Gaylord, Alan R. Schriber, and Lenworth Smith, Jr., in their respective capacities as Chairman and Commissioners of the Public Utilities Commission of Ohio, Defendants-Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

Samuel H. Porter, Robert W. Trafford (argued), Porter, Wright, Morris & Arthur, Columbus, Ohio, for plaintiffs-appellees.

Janice E. Kerr, J. Calvin Simpson, James T. Quinn, San Francisco, Cal., Robert S. Tongren, James B. Gainer (argued), Office of the Atty. Gen., Public Utilities Section, Columbus, Ohio, for defendants-appellants.

Donald T. Trotter, Office of the Atty. Gen., Olympia, Wash., amicus curiae States of Wash., Or., Nev., Tenn., Tex., and Mo.

Janice E. Kerr, J. Calvin Simpson, James T. Quinn, San Francisco, Cal., amicus curiae, State of Cal.

Before GUY, BOGGS and NORRIS, Circuit Judges.

BOGGS, Circuit Judge.

Plaintiff railroads sought and received summary judgment for declaratory and injunctive relief against defendants Public Utilities Commission of Ohio, its Chairman, and its Commissioners, against state regulation of hazardous materials transportation, claiming that such regulation was preempted by the Federal Railroad Safety Act, 45 U.S.C. Sec. 421 et seq. 701 F.Supp. 608. The defendants appealed, and we now affirm.

I

The Hazardous Materials Transportation Act (49 U.S.C.App. Sec. 1801 et seq.) (HMTA) governs the intermodal regulation of hazardous material transportation; the Secretary of Transportation (Secretary) has authority to promulgate rules and regulations under it. Under the HMTA, states can implement regulations governing the transportation of hazardous material if such regulations are consistent with federal provisions promulgated under the HMTA. 49 U.S.C.App. Sec. 1811(b).

Pursuant to the HMTA, Ohio enacted the Ohio Hazardous Materials Transportation Act (OHMTA) on September 26, 1988. See Am.Sub.H.B. No. 428, 1988 Ohio Legislative Service at 5-820 (Baldwin). The OHMTA authorized the Public Utilities Commission of Ohio (PUCO) to adopt and enforce as state requirements the federal rules regulating the intermodal transportation of hazardous materials; the statute provided in relevant part that "[t]he rules adopted under this section shall be consistent with, and equivalent in scope, coverage, and content to, the provisions of the 'Hazardous Materials Transportation Act'...." Ohio Rev.Code Ann. Sec. 4907.64.

On September 27, 1988, CSX Transportation Incorporated, Consolidated Rail Corporation, Norfolk & Western Railroad Company and Grand Trunk Western Railroad Company (collectively, the Railroads) filed suit in the United States District Court for the Southern District of Ohio, Eastern Division, against the PUCO and its commissioners, Thomas V. Chema, Ashley C. Brown, Gloria Gaylord, Alan R. Schriber, and Lenworth Smith, Jr. (collectively, the PUCO). The Railroads operate in and through the state of Ohio, and thus would be subject to the proposed regulations.

The Railroads sought declaratory relief and temporary and permanent injunctive relief against the enactment of the OHMTA and its implementing administrative regulations on the ground that they are preempted by the Federal Railroad Safety Act (FRSA) and a burden on interstate commerce in violation of article I of the United States Constitution. The FRSA, 45 U.S.C. Sec. 421 et seq., regulates general railroad safety. The FRSA does not permit states to promulgate laws relating to railroad safety over subject matter on which the Secretary has already promulgated a rule. 45 U.S.C. Sec. 434.

The PUCO informed the Railroads that the regulations enacted pursuant to the OHMTA would not become enforceable against railroads until December 10, 1988. In response to this information, the Railroads withdrew their request for a preliminary injunction and filed for partial summary judgment on the preemption issue on October 26, 1988. The Railroads sought to enjoin the PUCO permanently from enforcing the regulations; they also sought a declaration that the statutes and regulations were subject to the FRSA preemption provision. The Railroads claimed that the FRSA expressed the intent of Congress to preempt state rules such as the challenged provisions of Ohio law.

On November 10, 1988, the PUCO filed a cross motion for partial summary judgment on the preemption issue raised by the Railroads. It contended that the FRSA preemption provision applies only to matters of general railroad safety, and not to the regulation of intermodal hazardous materials transportation, even when applied to railroads. The PUCO contended that the HMTA created a dual system of federal and state regulation, under which states could govern transportation of hazardous materials, by rail or otherwise, through laws consistent with their federal counterparts. 49 U.S.C.App. Sec. 1811. The Ohio laws, it asserted, were within this sphere of state authority. It requested an order from the District Court finding Ohio Revised Code sections 4905.83 and 4907.64 valid and enforceable.

The court held a hearing on November 30, 1988, and concluded that the Ohio statutes in question constituted laws relating to "railroad safety" within the definition of the FRSA preemption provision. 45 U.S.C. Sec. 434. On December 12, 1988, the district court granted the Railroads' motion for partial summary judgment and granted a premanent injunction. In particular, the court held that the FRSA preempted sections 4905.83 and 4907.64 of the Ohio Revised Code, and sections 4901:2-7-01 through 4901:2-7-22 and 4901:3-1-10 of the Ohio Administrative Code. The PUCO now appeals from this grant of summary judgment.

II

In 1966, Congress created the Department of Transportation (DOT). See 49 U.S.C. Secs. 1651-1660, as amended. The DOT received the authority under several laws previously vested in a number of government agencies and departments to regulate, among other things, the transportation of hazardous materials. P.L. 89-670, 49 U.S.C. 1651 (1966). The authority to regulate under one of these laws, the Explosives and Other Dangerous Articles Act, was transferred from the Interstate Commerce Commission. 49 U.S.C. Sec. 1655(e)(4).

This authority to regulate, among other things, the transportation of hazardous materials transferred to the Secretary was delegated by statute to modal administrations (in this case, the Federal Railroad Administration and the Federal Highway Administration). The Federal Railroad Administration (FRA) had authority to promulgate hazardous material transportation regulations for railroads through its administration of the Explosives Act. 49 U.S.C. Sec. 1655(f)(3)(A) (1966), amended by 49 U.S.C. Sec. 1655(f)(3)(A) (1974). The Federal Highway Administration (FHA) had similar authority for motor carriers. 49 U.S.C. Sec. 1655(f)(3)(B) (1966), amended by 49 U.S.C. Sec. 1655(f)(3)(B) (1974). In both cases, the Secretary had no power either to retain the authority or transfer it to a modal administration other than the FRA (for railroads) or FHA (for motor carriers). 49 U.S.C. Sec. 1655(f)(3) (1966), amended by 49 U.S.C. Sec. 1655(f)(3) (1974).

In 1970, Congress passed an omnibus bill which enacted, among other provisions, the Hazardous Materials Transportation Control Act of 1970 (HMTCA) and the FRSA. Pub.L. 91-458, 84 Stat. 971. The HMTCA was Congress's first attempt at establishing intermodal regulation of hazardous materials. The HMTCA directed the Secretary to establish facilities within the federal government; evaluate hazards surrounding the shipment of hazardous materials; establish a central reporting system for those hazards; and review all aspects of hazardous material transportation to increase the control and safety of such transportation. 49 U.S.C. Sec. 1761 (repealed 1974).

The FRSA was enacted to govern railroad safety. The declaration of purpose of the FRSA states:

The Congress declares that the purpose of [the FRSA] is to promote safety in all areas of railroad operations ... and to reduce deaths and injuries to persons and to reduce damages to property caused by accidents involving any carrier of hazardous materials.

45 U.S.C. Sec. 421. The FRSA allows states to retain some enforcement powers in the area of railroad safety. In relevant part, the preemption provision reads:

A State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement.

45 U.S.C. Sec. 434 (emphasis added). Thus, any state regulation over an area covered by the FRSA (whether consistent or not) is preempted. This preemption provision was debated vigorously in Congress prior to passage. The House Report accompanying the FRSA stated that some of the covered "railroad safety" laws "... are set forth in detail in appendix B of this report." H.R.Rep. No. 1194, 91st Cong., 2d Sess., reprinted in 1970 U.S. CODE CONG. & ADMIN.NEWS 4104, 4105. Appendix B lists, among other laws, the Explosives Act.

With the passage of another omnibus bill in 1974, true intermodal regulation of the transportation of hazardous materials came into being. Pub.L. No. 93-633, 88 Stat. 2156. This bill enacted the HMTA and amended the DOT enabling act. It also created an independent safety board to oversee the functions and performance of each of the modal administrations within the Department of Transportation. 49 U.S.C.App. Secs. 1901-1902.

The HMTA amended the DOT enabling act to prohibit the Secretary from delegating the functions, powers, and duties to administer the...

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