Miamisburg Train Derailment Litigation, In re

• Decision Date: 09 February 1994
• Docket Number: No. 92-1244,92-1244
• Parties: In re MIAMISBURG TRAIN DERAILMENT LITIGATION.
• Court: Ohio Supreme Court

Page 255

68 Ohio St.3d 255

626 N.E.2d 85

In re MIAMISBURG TRAIN DERAILMENT LITIGATION.

No. 92-1244.

Supreme Court of Ohio.

Submitted June 3, 1993.

Decided Feb. 9, 1994.

Waite, Schneider, Bayless & Chesley Co., L.P.A., Stanley M. Chesley and Terrence L. Goodman, Cincinnati, Ruppert, Bronson & Chicarelli Co., L.P.A., and James D. Ruppert, Franklin, for appellants.

Freund, Freeze & Arnold, Gordon D. Arnold and Patrick J. Janis, Dayton, Johnson & Bell, Ltd., William V. Johnson, Thomas H. Fegan and William A. Geiser, Chicago, IL, for appellee Union Tank Car.

Rendigs, Fry, Kiely & Dennis, W. Roger Fry, Ralph F. Mitchell and Jonathan P. Saxton, Cincinnati, for appellees Albright & Wilson and ERCO.

PER CURIAM.

This case requires us to determine whether appellants' common-law tort claims are preempted by federal law. For the reasons which follow, we answer this question in the negative.

I

A

The United States Congress enacted the FRSA in 1970 "to promote safety in all areas of railroad operations and to reduce railroad-related accidents, and to reduce deaths and injuries to persons and to reduce damage to property caused by accidents involving any carrier of hazardous materials." Section 421, Title 45, U.S. Code. The FRSA gives the United States Secretary of Transportation ("the Secretary") powers to "prescribe, as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety * * *." Section 431, Title 45, U.S. Code. Section 434, Title 45, U.S. Code is the preemption provision of the FRSA, and provides that " * * * laws, rules, regulations, orders, and standards relating to railroad safety shall be nationally uniform to the extent practicable. 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 [of Transportation] has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement. * * * " (Emphasis added.) Thus, under the FRSA, a state requirement may remain in effect until the Secretary has adopted a regulation "covering the subject matter" of the state requirement. ¹

In 1971, the Secretary of Transportation adopted Section 179.200-19(b), Title 49, C.F.R., detailing when "[r]einforcing pads must be used between external brackets and shells * * * " for tank cars hauling hazardous materials. The parties essentially agree that this provision would have applied to require reinforcing pads where the brake attachment met the tank shell of UTLX 79499 had the Secretary not adopted another regulation allowing tank cars manufactured prior to 1971, such as UTLX 79499, to continue in use without compliance. Thus, the reinforcing pad requirement applies only to tank cars manufactured after 1971 (the time the regulation was adopted), because of the language in Section 179.1(b), Title 49, C.F.R. that "[e]xcept as provided in paragraph (c) of this section, tanks to which this part is applicable, must be built to the specifications prescribed in this part"; and the further language of Section 179.1(c), Title 49, C.F.R. that "[t]anks built to specifications predating those in this part may continue in use as provided in [Section] 173.31 of this subchapter."

Appellees essentially claim that, through these regulations, the Secretary of Transportation has "cover[ed] the subject matter" (in reference to Section 434, Title 45, U.S. Code) regarding reinforcing pads for external attachments, such as the brakes at issue in this case. For that reason, appellees argue that appellants' state common-law tort claims alleging that appellees were negligent in operating UTLX 79499 without the reinforcing pads are preempted.

B

Before we proceed to consider whether appellants' claims are preempted by Section 434 of the FRSA, we must consider whether another preemption standard should more appropriately be applied to this case. Specifically, we consider whether the preemption provision of the Hazardous Materials Transportation Act ("the HMTA") is applicable to appellants' common-law tort claims. Because the regulations promulgated by the Secretary which we consider in this case by their terms govern only tank cars hauling hazardous materials, an argument could be made that the HMTA preemption provision is the applicable one.

In 1975, the United States Congress enacted the HMTA in order to "protect the nation adequately against the risks to life and property which are inherent in the transportation of hazardous materials in commerce." Section 1801, Title 49, U.S. Code App. The HMTA authorizes the Secretary of Transportation to issue "regulations for the safe transportation in commerce of hazardous materials. Such regulations shall be applicable to any person who transports * * * a hazardous material * * *." Former Section 1804(a), Title 49, U.S. Code App.

The HMTA preemption provision (Section 1811[a], Title 49, U.S. Code) states that "[e]xcept as provided in subsection (b) of this section, any requirement, of a State or political subdivision thereof, which is inconsistent with any requirement set forth in this chapter, or in a regulation issued under this chapter, is preempted." (Emphasis added.) Unlike the preemption provision of the FRSA, which allows a state to adopt or continue in force a regulation or standard until the Secretary has issued regulations "covering the subject matter," the HMTA permits such state regulation so long as the state regulation is not "inconsistent" with the federal requirement.

In CSX Transp., Inc. v. Pub. Util. Comm. (C.A.6, 1990), 901 F.2d 497, certiorari denied (1991), 498 U.S. 1066, 111 S.Ct. 781, 112 L.Ed.2d 845, the Sixth Circuit Court of Appeals considered whether the FRSA preemption provision or the HMTA preemption provision should be applied to determine if an Ohio statute and Ohio regulations regarding the transportation of hazardous materials by rail were preempted. The court posed the question before it as, "[s]hould a train carrying a load of hazardous waste be considered a railroad which happens to be carrying hazardous waste (thus suggesting application of the FRSA preemption provision) or hazardous waste which happens to be carried by rail thus suggesting application of the HMTA preemption provision)?" Id., 901 F.2d at 501.

After considering statutory histories of the HMTA and the FRSA, the court concluded that " * * * the purpose of the HMTA was to consolidate regulation of hazardous material transportation at the Secretarial level, and not to remove such regulation of hazardous material transportation by rail from the preemption provision of the FRSA." Id. The court based this conclusion in part on the legislative history of the HMTA, as well as the plain language of Section 434 of the FRSA: "We find that the language of the FRSA, 'any law * * * relating to railroad safety,' * * * applies to the HMTA as it relates to the transportation of hazardous material by rail." Id.

Like the Sixth Circuit in CSX Transp., Inc. v. Pub. Util. Comm., we conclude that Section 434 of the FRSA is the applicable preemption provision in analyzing whether the Secretary's regulations at issue in this case preempt appellants' claims. See CSX Transp. Corp. v. Easterwood (1993), 507 U.S. 658, ----, 113 S.Ct. 1732, 1737, 123 L.Ed.2d 387, 396, fn. 4. ("[T]he plain terms of Section 434 do not limit the application of its express pre-emption clause to regulations adopted by the Secretary pursuant to FRSA. Instead, they state that any regulation 'adopted' by the Secretary may have pre-emptive effect, regardless of the enabling legislation.")

II

A

The Supremacy Clause (Clause 2, Article VI) of the United States Constitution provides that the laws of the United States "shall be the supreme law of the land * * *." Pursuant to this provision, the United States Congress possesses the power to preempt state law. In Cipollone v. Liggett Group, Inc. (1992), 505 U.S. 504, ----, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407, 422-423, the United States Supreme Court observed: "Congress' intent [to preempt] may be 'explicitly stated in the statute's language or implicitly contained in its structure and purpose.' Jones v. Rath Packing Co., 430 U.S. 519, 525 [97 S.Ct. 1305, 1309, 51 L.Ed.2d 604, 614] (1977). In the absence of an express congressional command, state law is pre-empted if that law actually conflicts with federal law, see Pacific Gas & Elec. Co. v. Energy Resources Conservation and Dev. Comm'n., 461 U.S. 190, 204 [103 S.Ct. 1713, 1722, 75 L.Ed.2d 752, 765] (1983), or if federal law so thoroughly occupies a legislative field ' "as to make reasonable the inference that Congress left no room for the States to supplement it." ' Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U.S. 141, 153 [102 S.Ct. 3014, 3022, 73 L.Ed.2d 664, 675] (1982) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. at 230 [67 S.Ct. 1146, at 1152, 91 L.Ed. 1447, at 1459 (1947) ] )."

"Pre-emption may result not only from action taken by Congress itself; a federal agency acting within the scope of its congressionally delegated authority may pre-empt state regulation." Louisiana Pub. Serv. Comm. v. Fed. Communications Comm. (1986), 476 U.S. 355, 369, 106 S.Ct. 1890, 1899, 90 L.Ed.2d 369, 382.

The key question in any preemption analysis is whether Congress intended for state law to be superseded by federal law. Cipollone, 505 U.S. at ----, 112 S.Ct. at 2617, 120 L.Ed.2d at 422. However, "[c]onsideration of issues arising under the Supremacy Clause 'start[s] with the assumption that the historic police powers of the States [are] not to be superseded by * * * Federal Act unless that [is] the clear and manifest purpose of Congress.' " Id., quoting Rice, 331 U.S. at 230, 67 S.Ct. at 1152, 91 L.Ed. at 1459. "If the statute contains an express pre-emption clause, the task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily...