CSX Trans, Inc. v. Williams, Anthony A.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 27, 2005 Decided May 3, 2005

No. 05-5131

CSX TRANSPORTATION, INC.,

APPELLANT

v.

ANTHONY A. WILLIAMS, IN HIS OFFICIAL CAPACITY AS

MAYOR OF THE DISTRICT OF COLUMBIA, ET AL.,

APPELLEES

On Emergency Motion for Injuction Pending Appeal and

for Motion for Summary Reversal

Carter G. Phillips argued the cause for the appellant. With

him on the motion for injunction and summary reversal were

Virginia A. Seitz, Irvin B. Nathan, Mary Gabrielle Sprague,

Sidney A. Rosenzweig, Kathryn E. Taylor, Peter J. Shudtz and

Paul R. Hitchcock.

Douglas N. Letter, Litigation Counsel, United States

Department of Justice, argued the cause for amicus curiae

United States of America in support of the appellant. With him

on the response were Kenneth L. Wainstein, United States

Attorney, Gregory G. Katsas, Deputy Assistant Attorney

General, Irene M. Solet, Attorney, and Jeffrey A. Rosen, General

Counsel, United States Department of Transportation, and Paul

Geier, Assistant General Counsel.

2

G. Paul Moates and Terence M. Hynes were on the response

of amicus curiae Norfolk Southern Railway Company in support

of the appellant.

Edward E. Schwab, Deputy Attorney General, Office of

Attorney General for the District of Columbia, argued the cause

for appellees Anthony A. Williams et al. With him on the

opposition were Robert J. Spagnoletti, Attorney General, and

Mary L. Wilson, Assistant Attorney General.

James R. Wrathall argued the cause for appellee Sierra Club.

With him on the opposition were Brian Boynton and James B.

Dougherty.

Before: HENDERSON, RANDOLPH and ROBERTS, Circuit

Judges.

Opinion for the court filed PER CURIAM .

Concurring opinion filed by Circuit Judge HENDERSON.

P ER CURIAM : The District of Columbia City Council (D.C.

Council) has passed an ordinance, the Terrorism Prevention in

Hazardous Materials Transportation Emergency Act of 2005

(D.C. Act), banning all shipments by rail or truck of certain

hazardous materials within 2.2 miles of the United States

Capitol. CSX Transportation, Inc. (CSXT) has filed an

emergency motion seeking reversal of the district court’s denial

of a preliminary injunction against enforcement of the D.C. Act.

Because we conclude that CSXT has satisfied the standards for

a preliminary injunction, we reverse the district court and

remand with direction to the district court to enter a preliminary

injunction.

I.

The D.C. Council passed the D.C. Act on February 1, 2005 in

an effort to reduce the risk of a terrorist attack on shipments of

hazardous materials near the United States Capitol. Mayor

3

Anthony Williams signed the D.C. Act on February 15, 2005.

The D.C. Act prohibits the shipment by rail or truck of

hazardous materials in specified categories, including

explosives, flammable gases, poisonous gases and other

poisonous materials (Banned Materials), within 2.2 miles of the

United States Capitol Building (Capitol Exclusion Zone)

without a permit from the D.C. Department of Transportation

(DCDOT). See D.C. Act § 4(a).1 Because the D.C. Act is

emergency legislation, it was passed on only one reading by the

D.C. Council, was not reviewed by the Congress and is effective

for only 90 days. See Home Rule Act §§ 412(a) (D.C. Code §

1-204.12); 602(c)(1) (D.C. Code § 1-206.02).2

On February 16, 2005, CSXT sued the District of Columbia

(District) and Mayor Williams, in his official capacity, in district

court, seeking a declaration that the D.C. Act is invalid and an

1

The D.C. Act provides that DCDOT may issue a permit for

rail or motor carrier transportation otherwise banned only upon

a showing that “there is no practical alternative route,” id. § 5(a),

and that DCDOT may condition any permit on the adoption of

safety measures, including time-of-day restrictions and the

payment of fees in exchange for operating rights. See id. § 5(a)

and (b). “Practical alternative route” is defined as any route

“(A) [w]hich lies entirely outside the Capitol Exclusion Zone”

and “(B) [w]hose use would not make shipment of the materials

in question cost-prohibitive.” Id. § 3(4).

2

On March 1, 2005, the D.C. Council passed the Terrorism

Prevention in Hazardous Materials Transportation Temporary

Act of 2005 (Temporary Act), which is substantively identical

to the D.C. Act but is not emergency legislation. Mayor

Williams signed the Temporary Act on March 17, 2005 and it

was transmitted to the Congress for review, pursuant to D.C.

Code § 1-206.02(c), on March 22, 2005.

4

injunction against its implementation and enforcement. CSXT

is a Class I freight railroad that operates a north-south rail line

from Florida to Boston and an east-west line from the District of

Columbia to Chicago and St. Louis. For decades, CSXT has

regularly transported Banned Materials on these two lines, both

of which pass through the Capitol Exclusion Zone. CSXT

alleges that the D.C. Act would require extensive rerouting of

Banned Materials to CSXT’s other rail lines, resulting in a

significant increase in the total miles over which such materials

travel and the total time the materials are in transit. See

Amended Complaint ¶¶ 71-73.

CSXT asserts the D.C. Act is preempted by the Federal

Railroad Safety Act (FRSA), 49 U.S.C. §§ 20101-20153.3 See

id. ¶ 98. Accordingly, on February 22, 2005 CSXT moved for

a preliminary injunction, seeking to enjoin enforcement of the

D.C. Act. In a Statement of Interest filed on February 25, 2005,

the United States made clear that it also believes the D.C. Act is

preempted by the FRSA. See Statement of Interest at 9-15. The

Sierra Club intervened to defend the validity of the D.C. Act.

On April 18, 2005 the district court denied the preliminary

injunction. Acknowledging that CSXT’s legal arguments are

“not trivial,” the court determined that on the record before it

CSXT is not likely to succeed on the merits. Id. at 61-63. It

also determined that the balance of equities favors the District

in light of the potential devastation that could occur in the event

of a terrorist attack on a railcar transporting Banned Materials

within the Capitol Exclusion Zone. Id. at 75. The same day the

3

Because we conclude that CSXT has a substantial likelihood

of success on the merits of this argument, this opinion does not

address CSXT’s other challenges to the D.C. Act under the

Hazardous Materials Transportation Act, the Interstate

Commerce Commission Termination Act and the Commerce

Clause of Article I, section 8 of the United States Constitution.

5

district court denied preliminary injunctive relief, CSXT filed an

emergency motion in this court, seeking reversal of the district

court’s order.4 This court held a hearing on the emergency

motion on April 27, 2005.

II.

In considering whether to grant preliminary injunctive relief,

the court must consider whether: (1) the party seeking the

injunction has a substantial likelihood of success on the merits;

(2) the party seeking the injunction will be irreparably injured if

relief is withheld; (3) an injunction will not substantially harm

other parties; and (4) an injunction would further the public

interest. See Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317-

18 (D.C. Cir. 1998); Washington Metro. Area Transit Comm’n

v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). The

test is a flexible one. “If the arguments for one factor are

particularly strong, an injunction may issue even if the

arguments in other areas are rather weak.” Cityfed Fin. Corp. v.

Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995).

We have often recognized that injunctive relief may be justified,

for example, “where there is a particularly strong likelihood of

success on the merits even if there is a relatively slight showing

of irreparable injury.” Id. We review the district court’s

weighing of the four factors under the abuse of discretion

standard and its findings of fact under the clearly erroneous

standard. Serono, 158 F.3d at 1318 (internal citations omitted).

To the extent the district court’s decision turns on questions of

law, however, our review is de nov o. Id. at 1318 (citations

omitted).

CSXT and the United States contend that CSXT has a

substantial likelihood of success on the merits of the argument

4

We do not address the other relief requested by CSXT in its

emergency motion.

6

that the D.C. Act is preempted by the FRSA. The Congress

enacted the FRSA to “promote safety in every area of railroad

operations and to reduce railroad-related accidents and

incidents.” 49 U.S.C. § 20101. Section 434 of the FRSA

mandates that throughout the United States “[l]aws, regulations,

and orders related to railroad safety and laws, regulations, and

orders related to railroad security shall be nationally uniform to

the extent practicable.” Id. § 20106. Section 20106 of the

FRSA delineates the circumstances under which a State may

nonetheless act. A State is permitted to enact a law “related to

railroad safety or security” until the United States Department

of Transportation (DOT) or the United States Department of

Homeland Security (DHS) issues a regulation “covering the

subject matter of the State requirement.” Id.5 Even after such

a federal regulation issues, a State may adopt a more stringent

law when “necessary to eliminate or reduce an essentially local

safety or security hazard” if it “is not incompatible” with the

federal regulation and “does not unreasonably burden interstate

commerce.” Id.

CSXT and the United States argue that DOT has “covered the

subject matter” addressed in the D.C. Act, i.e., the en route

security of hazardous materials transportation by rail, by issuing

a final rule, known as HM-232, addressing “Security

Requirements for Offerors and Transporters of Hazardous

Materials.”6 68 Fed. Reg. 14,510 (Mar. 25, 2003). HM-

5

CSXT argues that the District of Columbia is not entitled to

the statute’s safe harbor because it is not a “State.” Because we

conclude the D.C. Act fails to satisfy the three safe harbor

conditions in section 20106, we need not resolve the District’s

status as a State vel non.

6

FRSA preemption can apply even though HM-232 was

expressly promulgated pursuant to the Hazardous Materials

7

232 was enacted in response to security concerns arising from

the terrorist attacks of September 11, 2001 and subsequent

threats related to hazardous materials. See Notice of Proposed

Rulemaking, 67 Fed. Reg. 22,028, 22,028 (May 2, 2002); see

also 68 Fed. Reg. at 14,511 (“We believe that the new

requirements in this final rule will enhance the security of

hazardous materials in transportation and, thus, help to deter and

prevent terrorists from using hazardous materials in the

transportation system as weapons of destruction or

intimidation.”). Under HM-232, rail carriers (as well as motor

carriers) are required to develop and implement security plans

for transporting hazardous materials. See 49 C.F.R. § 172.800-

04. The security plans must address personnel security (such as

background checks), unauthorized access to hazardous

materials, and, most importantly, “the security risks of shipments

of hazardous materials . . . en route from origin to destination.”

Id. § 172.802 (emphasis added). The regulations are enforced

through civil penalties. See 49 U.S.C. § 5123; 49 C.F.R. §§

1.49(s), 1.53(b); 49 C.F.R. pt. 107, subpt. D, app. A.

To “cover the subject matter,” HM-232 must “substantially

subsume” the subject matter of the state law, not merely “touch

upon” or “relate to” it. See CSX Transp., Inc. v. Easterwood,

Transportation Act, 49 U.S.C. § 5101, et. seq. See CSX Transp.,

Inc. v. Easterwood, 507 U.S. 658, 663 n.4 (1993) (“[T]he plain

terms of § 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.”); CSX Transp., Inc. v. Pub. Utils. Comm’n

of Ohio, 901 F.2d 497, 503 (6th Cir. 1990) (“In this case, the

decision of the district court, applying the FRSA preemption

provision to regulations promulgated under the HMTA, retains

the essential character and purpose of both statutes.”).

8

507 U.S. 658, 66 (1993). In asserting that HM-232 substantially

subsumes the subject matter of the D.C. Act, the United States

points out that DOT specifically considered and rejected

imposing particular security requirements, such as routing

restrictions in specific cities. See 68 Fed. Reg. at 14,511.

Compare 67 Fed. Reg. at 22,035 (proposed HM-232

contemplated routing restrictions) wit h 49 C.F.R. §

172.802(a)(3) (final HM-232 does not refer to routing

restrictions). Instead, DOT decided that security will best be

achieved by adopting performance standards and giving

railroads the flexibility to adjust their security plans to their

individual circumstances. See 68 Fed. Reg. at 14511 (“[T]he

flexibility provided by a performance standard permits a

company to implement a security plan that is tailored to its

specific circumstances and operations.”); id. at 14,514 (“There

is no ‘one-size-fits-all’ security plan that will be appropriate for

each company’s individual circumstances.”); id. at 14,515 (“We

continue to believe that, if it is to be effective, a regulation

mandating development and implementation of a security plan

must provide sufficient flexibility so that a shipper or carrier can

adapt its requirements to individual circumstances.”). Because

HM-232 requires a flexible, individually-tailored security plan

for each hazardous material transporter, including measures

aimed at en route security, we conclude that CSXT is

substantially likely to succeed on its claim that HM-232 covers

the subject matter of the D.C. Act.

In effect, the District’s complaint is not that the federal

government has not covered the subject matter of en route

security of rail transport of hazardous materials by HM-232;

rather, the District’s charge is that HM-232 inadequately does

so. See D.C. Supp. Opp. at 1 (“The United States delegated the

responsibility to CSX to protect hazardous cargo from terrorist

attack, and CSX has not taken adequate precautions to prevent

attacks.”); id. at 7 (suggesting HM-232 is not comprehensive);

see also Sierra Club Opp. at 2 (asserting security plans are “not

9

subject to any substantive federal requirements”); id. at 8

(suggesting security plans are insufficient). The FRSA

preemption provision, however, authorizes the court only to

determine whether the regulation covers the subject matter,

leaving it to DOT or DHS to gauge the efficacy of the security

measures based on the agency’s expertise. Neither the court nor

the District is authorized or equipped to measure off the

adequacy of either agency’s strategic determinations. If, as

appears likely, HM-232 covers the subject matter of hazardous

material rail transportation security, the FRSA permits the

District to enact a more stringent law only if it is “necessary to

eliminate or reduce an essentially local safety or security

hazard” and, then, only if the State law is “not incompatible with

a law, regulation or order of the United States Government,” and

“does not unreasonably burden interstate commerce.” 49 U.S.C.

§ 20106. It does not appear that the D.C. Act satisfies the three

conditions.

First, the D.C. Act likely does not address an “essentially

local safety or security hazard,” as required under the first safe

harbor condition of section 20106. The Congress intended that

this exception apply “when local situations are ‘not capable of

being adequately encompassed within uniform national

standards.’ ” Norfolk & Western Ry. Co. v. Pub. Utils. Comm’n

of Ohio, 926 F.2d 567, 571 (6th Cir. 1991) (quoting H.R. Rep.

No. 91-1194, at 11 (1970), reprinted at 1970 U.S.C.C.A.N.

4104, 4117); see also Nat’l Ass’n of Regulatory Util. Comm’rs

v. Coleman, 542 F.2d 11, 14-15 (3d Cir. 1976) (noting

“exception was designed instead to enable the states to respond

to local situations which are not statewide in character and not

capable of being adequately encompassed within uniform

national standards”). No one in this case has suggested that the

vulnerability of hazardous material passing through the Capitol

Exclusion Zone cannot be adequately addressed by national

standards. Instead, as noted above, the District and the Sierra

Club simply contend the DOT’s regulations have not done so.

10

Further, the purpose of the D.C. Act is to prevent attacks in the

vicinity of the United States Capitol by terrorists opposed to our

nation or its policies. As the United States has persuasively

urged: “The need to protect the United States Capitol and its

environs from terrorist attack is and could hardly be a more

quintessentially national concern . . . .” U.S. Mem. at 9. The

national scope of the problem is underscored by the ongoing

efforts of the Transportation Security Administration, in

cooperation with rail carriers, “to minimize security risks” and

“to assess, develop, and implement enhanced security measures

on the rail network, including measures specific to the D.C. Rail

Corridor.” Mem. Op. at 8; see also id. at 26 (describing “D.C.

Rail Corridor Project”).

Second, the D.C. Act appears to be “incompatible” with HM-

232. As noted earlier, HM-232 establishes a flexible regime

under which a carrier can tailor its security plan to “its specific

circumstances and operations.” See 68 Fed. Reg. at 14,511; see

also 49 C.F.R. § 172.802. The D.C. Act’s routing restriction

does not allow a carrier operating within the Capitol Exclusion

Zone to exercise the discretion expressly conferred by HM-232.

Third, it appears the D.C. Act does “unreasonably burden

interstate commerce.” In assessing the burden, it is appropriate

for us to consider the practical and cumulative impact were other

States to enact legislation similar to the D.C. Act. See S. Pac.,

325 U.S. at 774-75 (focusing on impact of similar state

legislation in striking down Arizona statute limiting train lengths

as unconstitutional burden on interstate commerce). This is not

a speculative exercise. The California Senate currently is

considering a bill that would ban hazardous shipments within

three miles of the city hall of any “[u]rban region,” defined as

any city of over 50,000 people. See California Senate Bill No.

SB 419 Amended (Mar. 31, 2005), cited in U.S. Memo. at 17.

As the United States asserts, “[i]t would not take many similar

11

bans to wreak havoc with the national system of hazardous

materials shipment.” U.S. Mem. at 17.

Given that the D.C. Act does not fall within the safe harbor

provided in section 20106, we conclude that CSXT has a strong

likelihood of success on the merits of its argument that the D.C.

Act is preempted by the FRSA. We note that the case for

preemption is particularly strong where, as here, “the State

regulates in an area where there has been a history of significant

federal presence.” United States v. Locke, 529 U.S. 89, 107

(2000) (concluding Congress had legislated in field of

international maritime commerce “from the earliest days of the

Republic”); see CSX Transp., Inc. v. City of Plymouth, 92 F.

Supp. 2d 643, 648 (E.D. Mich. 2000) (“There can be no doubt

that just as Congress has regulated ships and vessels since the

beginning of the Republic, it has similarly done so with respect

to our Nation’s rail system.”); CSX Transp., Inc. v. Pub. Utils.

Comm’n of Ohio, 901 F.2d 497, 499 (6th Cir. 1990) (discussing

evolution of federal regulation of hazardous materials

transportation by rail).

We further conclude that CSXT has sufficiently demonstrated

irreparable injury, given its strong likelihood of success on the

merits. See Cityfed, 58 F.3d at 747. According to the affidavit

of CSXT’s vice president for Operations Research and Planning,

rerouting trains transporting Banned Materials around the

District of Columbia, as the D.C. Act would require, will

“significantly decrease the capacity and flexibility of the CSXT

rail network” which “is currently operating near or at capacity.”

Gibson Aff. at 8. The affidavit detailed specific ways in which

complying with the D.C. Act would decrease the efficiency of

the CSXT system. Id. at 9-10. It would be exceedingly

speculative, particularly in light of the nature of a complex,

interdependent national rail system, to place a dollar figure on

the difference in value between the rail network CSXT presently

operates and the effectively smaller, more constrained network

12

that compliance with the D.C. Act would entail. Accordingly,

CSXT’s injury is properly considered irreparable. See

Danielson v. Local 275, 479 F.2d 1033, 1037 (2d Cir. 1973)

(“irreparable injury is suffered when monetary damages are

difficult to ascertain or inadequate”); see also Long Island R.R.

Co. v. Int’l Ass’n of Machinists, 874 F.2d 901, 911 (2d Cir.

1989) (upholding finding that “a general cessation of rail

service” constituted irreparable harm).7 With regard to the

remaining factors for preliminary injunctive relief, the United

States asserts that the rerouting required under the D.C. Act

creates security risks because it will increase the length of time

hazardous materials are in transit. See U.S. Mem. at 17 (citing

Federal Railroad Administration Track Safety Standards, 63

Fed. Reg. 33,992, 33,999 (June 22, 1998) (“[T]he risk of

releases of hazardous materials is reduced by minimizing the

time such shipments spend in transportation. It would be poor

policy to allow local governments to attempt to lower their risk

by raising everyone’s risk and by clogging the transportation

system.”)). Additionally, the United States asserts the D.C. Act,

7

CSXT also claims as irreparable injury the $2 to $3 million

annual cost of complying with the D.C. Act notwithstanding the

general rule that injury that “can be remedied with money

damages” is not irreparable. CSXT claims it could not recover

its costs from the District because the District enjoys eleventh

amendment immunity from money damages liability. See

Emerg. Mot. at 17. Eleventh amendment immunity, however,

extends only to States and our case law suggests that the District

is not a State for the purpose of the Eleventh Amendment. See

LaShawn A. by Moore v. Barry, 144 F.3d 847, 853, (D.C. Cir.

1998) (“The term ‘state’ in the Eleventh Amendment also has

been interpreted to include Puerto Rico, see De Leon Lopez v.

Corporacion Insular de Seguros, 931 F.2d 116, 121 (1st Cir.

1991), but not the District of Columbia. See LaShawn A. v .

Barry, 87 F.3d 1389, 1394 n.4 (D.C. Cir. 1996)”).

13

and similar bans proposed by other jurisdictions, would disrupt

“the national system of hazardous materials shipment.” U.S.

Mem. at 16-18. Of course, the court does not minimize the

calamitous consequences of a terrorist attack on a rail car

transporting Banned Materials through the District. The effect

of the D.C. Act, however, is simply to shift this risk, or at least

some of this risk, to other jurisdictions.

Weighing these factors, we conclude that a preliminary

injunction is warranted, especially in light of CSXT’s very high

likelihood of success on the merits. See Cityfed, 58 F.3d at 747.

Accordingly, we reverse the district court and remand with

direction to enter a preliminary injunction prohibiting

enforcement of the D.C. Act.

So ordered.

KAREN LECRAFT HENDERSON, Circuit Judge, concurring:

I join the majority opinion but write separately to express my

view that the D.C. Act is likely preempted by the Hazardous

Materials Transportation Act (HMTA) as well as by the FRSA.

A “major purpose of the HMTA was the development of ‘a

uniform, national scheme of regulation’ regarding the

transportation of hazardous materials.” Chlorine Inst., Inc. v.

Calif. Highway Patrol, 29 F.3d 495, 496-97 (9th Cir. 1994)

(quoting S. Pac. Transp. v. Pub. Serv. Comm’n of Nev., 909 F.2d

352, 358 (9th Cir. 1990)); see also Nat’l Tank Truck Carriers,

Inc. v. Burke, 608 F.2d 819, 824 (1st Cir. 1979) (addressing

HMTA and stating: “[T]here is strong support for the notion that

a primary Congressional purpose intended to be achieved

through the legislation was to secure a general pattern of

uniform national regulations.”). It was to promote this goal of

uniform safety regulation by the federal agencies that the

Congress enacted the HMTA preemption provision. See Colo.

Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1580 (10th Cir.

1991) (“[I]n enacting new preemption standards, Congress

expressly contemplated that the Secretary would employ his

powers to achieve safety by enhancing uniformity in the

regulation of hazardous materials transportation.”). The

preemption provision states:

[U]nless authorized by another law of the United States, a

requirement of a State, political subdivision of a State, or

Indian tribe is preempted if

(1) complying with a requirement of the State, political

subdivision, or tribe and a requirement of this chapter, a

regulation prescribed under this chapter, or a hazardous

materials transportation security regulation or directive

issued by the Secretary of Homeland Security is not

possible; or

(2) the requirement of the State, political subdivision, or

tribe, as applied or enforced, is an obstacle to accomplishing

and carrying out this chapter, a regulation prescribed under

2

this chapter, or a hazardous materials transportation security

regulation or directive issued by the Secretary of Homeland

Security.

49 U.S.C. § 5125(a). The D.C. Act’s ban on rail transport in the

Capitol Exclusion Zone appears to be “an obstacle to

accomplishing and carrying out . . . a hazardous materials

transportation security regulation,” namely Department of

Transportation regulation HM-232, for the same reason the

majority opinion finds the D.C. Act is likely “incompatible

with” HM-322 under the FRSA, see maj. op. at 10. By

prohibiting altogether transport of hazardous material through

the Capitol Exclusion Zone in the District of Columbia, the D.C.

Act circumscribes the discretion that the regulation expressly

confers on CSXT to develop its own individualized security plan

under 49 C.F.R. § 172.800, including “[m]easures to address the

assessed security risks of shipments of hazardous materials

covered by the security plan en route from origin to destination,”

id. § 172.802(a)(3). Cf. Chlorine Inst., Inc., supra (finding

obstacle in California Highway Patrol regulations governing

chlorine transport in state); Northern States Power Co. v. Prairie

Island Mdewakanton Sioux Indian Comty., 991 F.2d 458 (8th

Cir. 1993) (finding obstacle in tribe's requirement that shippers

obtain special license for each shipment of radioactive

substances crossing tribal lands); S. Pac., supra (finding

obstacle in Nevada regulations requiring rail carrier to obtain

annual permit before loading, unloading, transferring or storing

hazardous material on railroad property within state). The D.C.

Act therefore appears to constitute an obstacle to

implementation of HM-232 and thus to be preempted under the

HMTA, 49 U.S.C. § 5125(a)(2).