National Tank Truck Carriers, Inc. v. Burke

• Decision Date: 17 March 1982
• Docket Number: Civ. A. No. 78-0621.
• Citation: 535 F. Supp. 509
• Parties: NATIONAL TANK TRUCK CARRIERS, INC. v. Edward F. BURKE.
• Court: U.S. District Court — District of Rhode Island

535 F. Supp. 509

NATIONAL TANK TRUCK CARRIERS, INC. v. Edward F. BURKE.

Civ. A. No. 78-0621.

United States District Court, D. Rhode Island.

March 17, 1982.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

James J. McGair, Providence, R. I. and Lawrence W. Bierlein, Washington, D. C., for plaintiff.

John M. Roney, Mann & Roney, and John R. McDermott, Sp. Asst. Atty. Gen., Providence, R. I., for defendant.

OPINION

FRANCIS J. BOYLE, District Judge.

Plaintiff in this action seeks a permanent injunction prohibiting the Defendant, in his capacity as Administrator of the Rhode Island Division of Public Utilities and Carriers, from enforcing certain rules and regulations promulgated by the Division pursuant to R.I.Gen.Laws §§ 39-1-2.1 and 45-2-17. Plaintiff also requests declaratory judgment specifying the rights of the parties and any additional relief deemed appropriate. The rules and regulations, effective November 3, 1978, concern the transportation of Liquefied Natural Gas (LNG) and Liquefied Petroleum Gas (LPG) over the highways, streets or roads of Rhode Island to be used by a public utility either in intrastate commerce or in interstate commerce where the loading or unloading of tank trailers is to be performed within Rhode Island. Plaintiff, National Tank Truck Carriers, Inc., is an association of cargo carriers some of whom regularly transport Liquefied Energy Gases (LEG) to public utilities located in Rhode Island.

The Declaration of Policy in the regulations states, in part:

It is hereby declared to be the policy of the state to regulate the transportation of hazardous materials, as herein defined, within the boundaries and/or over the highways and roads of this state.

The regulations seek to accomplish this goal by regulating some, but not all, transport of Liquefied Energy Gases to some, but not all, purchasers within the State by requiring an entry permit which must be obtained before entry into the State. The entry permit, which may apparently be granted or denied at the whim of the regulator, is valid only for travel over specified routes and during specified hours and without regard to either existing nation-wide regulations or the possibility of conflicting requirements of other states. There is no effort to regulate shipments of the same hazardous products by rail or water transport or to consumers other than public utilities or shipments from or through the State to other states.

The regulations were adopted following a study of a task force appointed by the Governor of the State of Rhode Island from interested public agencies and prompted by a legitimate concern for public safety. There can be no doubt that the State's purpose is proper. Essentially, the issue is whether the regulations may be enforced in light of the impact of the regulations upon federal regulatory policy and the interstate consequences of the regulations.

Paragraph I contains a Declaration of Policy and definitions. Paragraphs II and III require a Rhode Island permit prior to transportation of LPG or LNG along any highway, street or road in the State. The permit must be applied for not less than four hours nor more than two weeks prior to each transport. The application must include the date and time of shipment, the cargo to be shipped, vehicle identification number and registration, proof of vehicle inspection and proper insurance coverage, and a certificate that there has been compliance with the federal Department of Transportation regulations. The permit must be in the possession of the operator of the vehicle.

Paragraph IV requires that the vehicle have a two-way radio within easy reach of the driver. The radio is to be used to notify appropriate authorities of any accident or mishap occurring within the State.

Paragraph V prohibits the ansportation of LNG and LPG within the State during the hours of 7-9 A.M. and 4-6 P.M., Monday through Friday.

Paragraph VI requires an immediate report of any accident, mishap or any safety irregularities to the Rhode Island State Police and requires that a written report of any accident, mishap or any safety irregularities be filed with the Motor Carrier Examiner, Division of Public Utilities and Carriers and Rhode Island Department of Transportation within twenty-four hours.

Paragraph VII requires a rear bumper sign, at least three inches high, illuminated for evening travel, which reads "MUST STAY BACK 500 FEET."

Paragraph VIII requires transportation vehicles whether loaded or empty to travel with their headlights on.

Paragraph IX requires that all trailers be equipped with a frangible shank type lock to prevent tampering of valves or equipment.

Paragraph X requires drivers, along with proper personnel, to inspect vehicles for safety defects and liquid and gas leaks before leaving and upon arrival at loading or unloading areas.

Paragraph XI provides that the regulations are to be considered in addition to federal regulations governing the transportation of hazardous materials.

This Court initially heard this matter upon Plaintiff's prayer for a preliminary injunction. At that time enforcement of Paragraphs IV (two-way radio), VII (rear bumper sign) and IX (frangible lock) of the rules and regulations were enjoined pending a determination by the United States Department of Transportation as to whether the Rhode Island rules and regulations were consistent with existing federal regulations. The Court of Appeals affirmed. National Tank Truck Carriers, Inc. v. Burke, 608 F.2d 819 (1st Cir. 1979).

The Materials Transportation Bureau (MTB) of the Department of Transportation issued an inconsistency ruling effective December 13, 1979. State of Rhode Island Rules and Regulations Governing the Transportation of Liquefied Natural Gas and Liquefied Propane Gas Intended To Be Used by a Public Utility; Inconsistency Ruling (IR-2), 44 Fed.Reg. 75,566 (1979) hereinafter Inconsistency Ruling (IR-2). The MTB determined that Paragraphs I (definitions), IV (two-way radio), part of VI (immediate report), VIII (headlights), X (inspection) and XI (Regulations supplement Federal Regulations) were not inconsistent with the Hazardous Materials Transportation Act (HMTA), 49 U.S.C. §§ 1801-1812. Paragraphs II, III (permit), V (curfew), part of VI (written report), VII (bumper sign) and IX (frangible locks) were found to be inconsistent with the HMTA. In summary, the requirements concerning two-way radios, immediate reporting of accidents to the State Police, illumination of headlights, and vehicle inspection were found to be consistent with the Hazardous Materials Transportation Act. However, the requirements concerning a permit and an application, limitations upon the hours of travel, subsequent written notice of accidents within twenty-four hours, bumper signs and frangible locks were deemed to be inconsistent with federal law and, therefore, preempted.

A second hearing was held on the merits of this matter. The State Division of Public Utilities and Carriers (the Division) no longer seeks to implement the rules and regulations, Paragraphs VII and IX, requiring rear bumper signs and a frangible (breakable) lock.¹ Both requirements are, therefore, declared to be invalid.

Inconsistency Ruling (IR-2), of the Department of Transportation's MTB was affirmed upon appeal under the provisions of 49 C.F.R. § 107.211 (1980) and issued October 17, 1980. State of Rhode Island Rules and Regulations Governing the Transportation of Liquefied Natural Gas and Liquefied Propane Intended To Be Used by a Public Utility; Inconsistency Ruling (IR-2); Notice of Decision on Appeal, 45 Fed.Reg. 71,881 hereinafter Inconsistency Ruling (IR-2); Notice of Decision Appeal.

Plaintiff advances six arguments to support its prayer for injunction and declaratory relief:

1. The regulations are inconsistent with the HMTA, 49 U.S.C. §§ 1801-1812;

2. The regulations concerning interstate carriage of LPG are lacking statutory authorization;

3. The regulations are unreasonable in violation of R.I.Gen.Laws § 39-3-33;

4. The radio and written report requirements are vague and thus violate the due process clause of the Fourteenth Amendment of the United States Constitution;

5. The regulations violate the equal protection clause of the Fourteenth Amendment of the United States Constitution; and

6. The regulations place an undue burden upon interstate commerce in violation of Art. I, § 8. cl. 3 of the United States Constitution.

PREEMPTION

The first issue to be considered is whether the Rhode Island rules and regulations are inconsistent with the HMTA and therefore preempted by federal law. The Congress of the United States has directed that state regulations "inconsistent" with requirements of federal law are not enforceable. Thus, if a state regulation is inconsistent with the Hazardous Materials Transportation Act, then that regulation is invalid by mandate of Congress. See 49 U.S.C. § 1811(a). Section 1811(a) provides: "Except 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." Section 1811(b) delegates specifically to the Secretary of the Department of Transportation (DOT) the power to decide whether a state or local regulation determined to be inconsistent nevertheless qualifies as an exemption from preemption.

Although the federal statute does not indicate who is to make a determination of inconsistency, the First Circuit has held that such a determination can be made by either the Department of Transportation or the courts and that "a district court is not required to defer to the DOT for determinations of inconsistency." National Tank Truck Carriers, Inc. v. Burke, 608 F.2d at 822. The Materials Transportation Bureau, likewise, has conceded that its existence and function does not preclude this Court from determining...