Roth v. NORFALCO LLC

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-2524

_____________

DAVID ROTH; BETSY ROTH,

Appellants

v.

NORFALCO LLC

On Appeal from the United States District Court

for the Middle District of Pennsylvania

District Court No. 1-06-cv-01452

District Judge: The Honorable Yvette Kane

Argued March 24, 2011

Before: FUENTES, SMITH, and GREENBERG,

Circuit Judges

(Filed: June 28, 2011)

Albert J. Evans (argued)

Riley & Fanelli P.C.

1 Mahantongo Street

Pottsville, PA 17901

Counsel for Appellant

David C. Gustman

Deborah H. Bornstein (argued)

Marc H. Kallish

Tina C. Mazzulla

Freeborn & Peters LLP

311 South Wacker Drive

Suite 3000

Chicago, IL 60606

Stephen J. Kastenberg

Burt M. Rublin

Ballard Spahr LLP

1735 Market Street

51st Floor

Philadelphia, PA 19103-7599

Dennis R. Sheaffer

Tucker Arensberg & Swartz

111 North Front Street

P.O. Box 889

Harrisburg, PA 17108

Counsel for Appellee

2

________________

OPINION

________________

SMITH, Circuit Judge.

David Roth was attempting to unload a railway

tank car filled with sulfuric acid when its chemical

contents exploded, spraying Roth across his face and

chest and inflicting severe burns. Roth brought suit,

seeking damages for his personal injuries under the

common law, but the District Court held that his lawsuit

was preempted by the Hazardous Materials

Transportation Act (―HMTA‖), 49 U.S.C. §§ 5101–5128.

We agree and will therefore affirm.

I

In the early 1970s, those who transported

hazardous materials through interstate commerce were

forced to navigate ―a patchwork of sometimes conflicting

state regulations.‖ Jersey Cent. Power & Light Co. v.

Twp. of Lacey, 772 F.2d 1103, 1112–13 (3d Cir. 1985).

The prevailing regulatory regime was fragmented and, to

some, incoherent. S. Rep. No. 93-1192, at 8 (1974)

(explaining that ―the fragmentation of regulatory power

3

among the agencies dealing with the different modes of

transportation blocks a coherent approach to the

problem‖). At the same time, the quantity of hazardous

material moving across state lines was on the increase.

S. Rep. No. 93-1192, at 7 (―The amount of hazardous

material being transported in the United States increases

every year.‖). Predictably, accidents involving such

materials were concomitantly on the rise. S. Rep. No.

93-1192, at 7 (―The increasing volume of dangerous

products in commerce has brought with it an increasing

number of accidents.‖). To address these concerns, the

Secretary of Transportation requested greater oversight

capability. See S. Rep. No. 93-1192, at 7.

Congress responded by enacting the HMTA in

1975. Its overriding purpose was to develop ―a uniform,

national scheme of regulation regarding the

transportation of hazardous materials.‖ CSX Transp.,

Inc. v. Williams, 406 F.3d 667, 674 (D.C. Cir. 2005)

(Henderson, J., concurring) (internal quotation marks

omitted); Chlorine Inst., Inc. v. Cal. Highway. Patrol, 29

F.3d 495, 496 (9th Cir. 1994); Colo. Pub. Utils. Comm’n

v. Harmon, 951 F.2d 1571, 1574 (10th Cir. 1991); Cent.

Jersey Power, 772 F.2d at 1112–13; see also S. Rep. 93-

1192, at 1 (stating that passage of the HMTA was

intended to ―draw[] the Federal Government‘s now-

fragmented regulatory and enforcement power over the

movement of hazardous materials in commerce into one

consolidated and coordinated effort under the direction of

4

the Secretary of Transportation‖). Congress

underscored—and expanded upon—this objective fifteen

years later when it amended the HMTA and found,

among other things, that:

(3) many States and localities have enacted

laws and regulations which vary from

Federal laws and regulations pertaining to

the transportation of hazardous materials,

thereby creating the potential for

unreasonable hazards in other jurisdictions

and confounding shippers and carriers which

attempt to comply with multiple and

conflicting registration, permitting, routing,

notification, and other regulatory

requirements,

(4) because of the potential risks to life,

property, and the environment posed by

unintentional releases of hazardous

materials, consistency in laws and

regulations governing the transportation of

hazardous materials is necessary and

desirable,

(5) in order to achieve greater uniformity

and to promote the public health, welfare,

and safety at all levels, Federal standards for

regulating the transportation of hazardous

materials in intrastate, interstate, and foreign

5

commerce are necessary and desirable[.]

Hazardous Materials Transportation Uniform Safety Act

of 1990, Pub L. No. 101-615, § 2, 104 Stat. 3244, 3245

(1990). In 2005, Congress amended the HMTA again

and re-adopted these findings. Hazardous Materials

Transportation Safety and Security Reauthorization Act

of 2005, Pub. L. No. 109-59, § 7101, 119 Stat. 1144,

1891 (2005).

The HMTA empowers the Secretary of

Transportation to ―prescribe regulations for the safe

transportation, including security, of hazardous materials

in intrastate, interstate, and foreign commerce.‖ 49

U.S.C. § 5103(b)(1); see also Am. Chemistry Council v.

Dep’t of Transp., 468 F.3d 810, 812 (D.C. Cir. 2006)

(describing this delegation as a ―broad mandate‖).

Pursuant to this authority, the Department of

Transportation (―DOT‖) promulgated a set of rules

known as the Hazardous Materials Regulations

(―HMR‖). 49 C.F.R. §§ 171–180.605. These regulations

apply to matters of ―transportation‖ in ―commerce.‖ 49

U.S.C. § 5103(b)(1); 49 C.F.R. § 171.1. The HMTA

defines ―transportation‖ as ―the movement of property

and loading, unloading, or storage incidental to the

movement.‖ 49 U.S.C. § 5102(13). ―Commerce‖ means,

inter alia, ―trade or transportation in the jurisdiction of

the United States . . . between a place in a State and a

place outside of the State.‖ 49 U.S.C. § 5102(1)(A). The

scheme erected by the HMTA/HMR is thus controlling

6

during the interstate movement of hazardous materials,

and also at various stages before and after said

movement. See 49 C.F.R. § 171.1(a)–(c) (describing

―pre-transportation functions,‖ ―transportation

functions,‖ and instances of ―storage incidental to

movement‖).

Where applicable, the HMR is comprehensive: it

sets forth, for example, each substance or material

considered to be ―hazardous‖; governs the transport of

such material by aircraft, railcar, vessel, and motor

vehicle; describes requirements for packaging, marking,

labeling, declaring, and registering hazardous materials;

and advances a series of training and security

requirements for those who come into contact with

hazardous substances. Failure to comply with these

provisions can result in an array of administrative

sanctions, civil penalties, and, under certain

circumstances, criminal punishment. See 49 U.S.C. §§

5121–24.

Sulfuric acid is a ―hazardous material.‖ 49 C.F.R.

§ 172.101. Accordingly, railway tank cars carrying the

chemical must adhere to design specifications approved

by the DOT. 49 C.F.R. § 173.242(a). Tank cars must be

mounted to a railcar structure in a specified manner. 49

C.F.R. §§ 179.10–179.11. Tank car volume and weight

capacity are spelled out. 49 C.F.R. § 179.13. Most tank

car models must satisfy DOT standards for thermal

resistance. 49 C.F.R. § 179.18. Modifications to the

7

design features set forth in the HMR are prohibited

absent written authorization from the DOT. 49 C.F.R. §§

179.3–179.4.

Defendant Norfalco transported sulfuric acid using

model 111AW non-pressure tank cars. The HMR

governs the 111AW‘s shape, 49 C.F.R. § 179.200-3, the

thickness of the plates used to construct the car, §

179.200-6, its expansion capacity, § 179.200-14, the

method for applying attachments to the tank car structure,

§ 179.200-19, the size, shape, and appearance of plugs

used to cap tank car openings, § 179.200-21, and the

presence, quantity, and application of insulating

materials, § 179.200-4. Each 111AW tank car must also

undergo pressure testing to ensure there is no ―leakage or

evidence of distress.‖ 49 C.F.R. § 179.200-22. It is

undisputed that Norfalco fully complied with the HMR

requirements for model 111AW tank cars.

The HMR sets forth various fittings suitable for

tank car installation. When so installed, ―[g]auging

devices, top loading and unloading devices, venting and

air inlet devices‖ must be approved for use by the

Association of American Railroads (―AAR‖), an industry

standard-setting organization. 49 C.F.R. § 179.200-16;

49 C.F.R. § 179.2 (defining ―approved‖ under Part 179).

The AAR, in turn, publishes a ―Manual of Standards and

Recommended Practices,‖ one chapter of which details

design and maintenance criteria for the fittings identified

above. Several specifications in this chapter pertain to

8

devices installed on sulfuric acid-bearing cars. The

parties agree that Norfalco‘s tank cars complied with

AAR criteria concerning gauging devices, top loading

and unloading devices, venting and air inlet devices.

Most tank cars must also be equipped with agency-

approved pressure relief devices. See 49 C.F.R. §

179.15. Such instruments must permit ―sufficient flow

capacity to prevent pressure build-up in the tank.‖ 49

C.F.R. § 179.15(a). Flow capacity requirements are set

forth in the AAR Manual of Standards and

Recommended Practices. 49 C.F.R. § 179.15(b).

Furthermore, the HMR dictates precise technical settings

according to which pressure relief devices must be

reclosed following use, 49 C.F.R. § 179.15(b), and

imposes testing standards to ensure that each instrument

satisfies applicable criteria before it is put to use in

transport, 49 C.F.R. § 179.200-23. The parties agree that

Norfalco complied in full with the HMR requirements for

pressure relief devices. Indeed, there is not a single

provision in the HMTA or HMR with which Norfalco

failed to comply.

II

P.H. Glatfelter Company is a paper manufacturer

based in York, Pennsylvania. Its manufacturing process

requires large quantities of sulfuric acid—approximately

40,000 pounds per day—which it uses to bleach wood

pulp. In 2004, Glatfelter purchased nearly all the sulfuric

9

acid it needed from Norfalco, North America‘s largest

supplier of the chemical. Norfalco would then deliver

the sulfuric acid by rail directly to Glatfelter‘s

Pennsylvania mill.

Roth was employed by Glatfelter as a ―chemical

unloader.‖ His primary responsibility, as his job title

suggests, was to unload sulfuric acid from the tank cars

sent by Norfalco. Before he could safely do so, however,

Roth was required to depressurize each car. This process

was simple enough: Roth explained in a deposition that

he first removed a cap covering an ―air inlet‖ located on

the tank car and then opened something called the

―Jamesbury valve.‖ At this point, air began to exit the

tank car through the uncapped air inlet. Roth knew the

tank car was depressurized when he could no longer hear

or feel air escaping from the inlet.

To unload the depressurized tank car of its

chemical contents, Roth opened a second inlet into which

he inserted a rod-like device called an ―elbow pipe.‖ On

the opposite end of the elbow pipe, Roth attached a

rubber hose, called the ―acid hose.‖ The acid hose ran to

a nearby ―acid storage tank.‖ Roth had to siphon the

sulfuric acid out of the tank car through the acid hose by

pumping air into the tank car through the first air inlet;

the incoming air pushed sulfuric acid out of the tank car

through the second air inlet and into the acid hose, where

it flowed into the storage tank. On average, it took

approximately two hours to empty a tank car of sulfuric

10

acid.

On August 11, 2004, Roth was attempting to

unload a tank car of sulfuric acid when he encountered an

unidentified mechanical difficulty. Because the source of

the complication was not apparent, Roth‘s supervisor

instructed him to ―deactivate‖ the unloading process and

move on to another tank car. Roth complied, but he did

not remove the elbow pipe from the partially-unloaded

car. Two days later, Roth was told to detach the pipe.

As he did so, acid began ―flying out‖ of the air inlet,

spraying Roth‘s face and chest and causing severe burns.

Roth later explained that he had not attempted to

depressurize the tank car before removing the elbow pipe

because he believed—mistakenly, as it turned out—that

the car was ―already depressurized.‖

Roth invoked diversity jurisdiction and filed a

complaint in the District Court asserting negligence,

strict liability, products liability, and breach of warranty

claims. His theory of the case was the stuff of basic tort

law: Norfalco had a duty to design its tank cars to ensure

they were safe for those who unloaded them. This duty

required Norfalco to equip its cars with a safety valve

that would have allowed a chemical unloader like Roth to

control the rate at which sulfuric acid was discharged. In

addition, Norfalco had a duty to equip its tank cars with a

pressure gauge, whose presence would have alerted Roth

of the need to depressurize the car before unloading it.

The absence of both safety devices, according to Roth,

11

meant that Norfalco had been negligent. Roth also

argued that Norfalco warranted that its cars were

designed in a reasonably safe manner, that Norfalco‘s

tank cars were ultrahazardous, and that, given the

absence of a safety valve and pressure gauge, sulfuric

acid could not be removed from the cars in a safe and

prudent manner.

The District Court granted summary judgment in

favor of Norfalco. The Court first determined that Roth‘s

common law negligence, products liability, and breach of

warranty claims are expressly preempted by the HMTA.

It then held that Roth‘s strict liability claim, while not

preempted, nonetheless failed because unloading sulfuric

acid from a tank car is not an ―abnormally dangerous

activity.‖ Roth appeals this decision, attacking both of

the District Court‘s conclusions. We have jurisdiction to

entertain his appeal pursuant to 28 U.S.C. § 1291.

III

We subject a grant of summary judgment to

plenary review. Barefoot Architect, Inc. v. Bunge, 632

F.3d 822, 826 (3d Cir. 2011). Under Federal Rule of

Civil Procedure 56, summary judgment is appropriate ―if

the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment

as a matter of law.‖ Fed. R. Civ. P. 56(a). Material facts

are those ―that could affect the outcome‖ of the

proceeding, and ―a dispute about a material fact is

12

‗genuine‘ if the evidence is sufficient to permit a

reasonable jury to return a verdict for the nonmoving

party.‖ Lamont v. New Jersey, 637 F.3d 177, 181 (3d

Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986)). In conducting our inquiry, we

consider the evidence in the light most favorable to the

nonmovant and draw all reasonable inferences in that

party‘s favor. Spence v. ESAB Group, Inc., 623 F.3d

212, 216 (3d Cir. 2010). Here, the District Court‘s

preemption and strict liability determinations were based

on questions of law; we review those dispositions de

novo. Deweese v. Nat’l R.R. Passenger Corp. (Amtrak),

590 F.3d 239, 244 n.8 (3d Cir. 2009).

IV

The Constitution‘s Supremacy Clause elevates

federal law above that of the states, U.S. Const. art. VI,

cl. 2, providing Congress with ―the power ‗to preempt

state legislation if it so intends,‘‖ Deweese, 590 F.3d at

245 (quoting Hi Tech Transp., LLC v. N.J. Dep’t of

Envtl. Prot., 382 F.3d 295, 302 (3d Cir. 2004)).

Preemption comes in three forms: express preemption,

field preemption, and implied conflict preemption.

Farina v. Nokia, Inc., 625 F.3d 97, 116 (3d Cir. 2010)

(citing Hillsborough Cnty., Fla. v. Automated Med.

Labs., Inc., 471 U.S. 707, 713 (1985)). Express

preemption occurs when a federal law ―contains language

so requiring.‖ Bruesewitz v. Wyeth Inc., 561 F.3d 233,

239 (3d Cir. 2009), aff’d, ---U.S.---, 131 S. Ct. 1068

13

(2011). The congressional enactment, in other words,

must be explicit about its preemptive effects. Deweese,

590 F.3d at 247 n.10; St. Thomas-St. John Hotel &

Tourism Ass’n v. Gov’t of the Virgin Islands, 218 F.3d

232, 238 (3d Cir. 2000) (explaining that express

preemption ―arises when there is an explicit statutory

command that state law be displaced‖). Field preemption

arises by implication when Congress regulates a domain

so pervasively that it leaves no room for state regulation.

See United States v. Locke, 529 U.S. 89, 111 (2000).

Finally, implied conflict preemption applies either where

it is impossible to comply with both state and federal

requirements, Hillsborough Cnty., 471 U.S. at 713, or

―where state law stands as an obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress,‖ Kurns v. A.W. Chesterton Inc.,

620 F.3d 392, 395–96 (3d Cir. 2010) (internal quotation

marks omitted).

Section 5125 of the HMTA contains a multi-

pronged preemption provision that, when applicable,

displaces an array of state and local law. 49 U.S.C. §

5125. Under subsection (a)(1), a non-federal regulation

is preempted if it ―is not possible‖ to comply with both

the HMTA and the non-federal requirement. Subsection

(a)(2) preempts a non-federal requirement that ―is an

obstacle to accomplishing and carrying out . . . a

regulation prescribed under [the HMTA].‖ Neither of

these provisions is applicable to the case at hand.

14

Section 5125(b)(1) of the HMTA contains an

express preemption provision, which states,

[U]nless authorized by another law of the

United States, a law, regulation, order, or

other requirement of a State, political

subdivision of a State, or Indian tribe about

any of the following subjects, that is not

substantively the same as a provision 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 preempted.

This section then sets forth five subject areas that fall

within the provision‘s preemptive scope (i.e., the

―following subjects,‖ reference above):

(A) the designation, description, and

classification of hazardous material.

(B) the packing, repacking, handling,

labeling, marking, and placarding of

hazardous material.

(C) the preparation, execution, and use of

shipping documents related to hazardous

material and requirements related to the

number, contents, and placement of those

15

documents.

(D) the written notification, recording, and

reporting of the unintentional release in

transportation of hazardous material.

(E) the designing, manufacturing,

fabricating, inspecting, marking,

maintaining, reconditioning, repairing, or

testing a package, container, or packaging

component that is represented, marked,

certified, or sold as qualified for use in

transporting hazardous material in

commerce.

49 U.S.C. § 5125(b)(1)(A)–(E).

It is obvious from the face of the statute that §

5125(b)(1) expressly preempts non-federal requirements

that relate to, or are ―about,‖ the five subject areas set

forth in § 5125(b)(1)(A)–(E). Our interpretive task does

not end here, however, for even where an express

preemption provision is at issue, we must nevertheless

―identify the domain expressly pre-empted‖ by the

provision. Medtronic, Inc. v. Lohr, 518 U.S. 470, 484

(1996) (quoting Cipollone v. Liggett Group, Inc., 505

U.S. 504, 517 (1992)); see also Farina, 625 F.3d at 118

(explaining that a reviewing court must pinpoint ―the

scope of the preemption provision‖). We do so guided

by two precepts. ―First, ‗the purpose of Congress is the

16

ultimate touchstone in every pre-emption case.‘‖ Wyeth

v. Levine, 555 U.S. 555, 129 S. Ct. 1187, 1194 (2009)

(quoting Medtronic, 518 U.S. at 485). Second, we

assume ―‗that the historic police powers of the States

[are] not to be superseded by the Federal Act unless that

was the clear and manifest purpose of Congress.‘‖ Id. at

1194–95 (quoting Medtronic, 518 U.S. at 485). This

second guiding principle is often referred to as a

―presumption against preemption,‖ Deweese, 590 F.3d at

246 (citing Cipollone, 505 U.S. at 516), and it holds even

where an express preemption provision is in play,

Bruesewitz, 561 F.3d at 240; see also Bates v. Dow

Agrosciences LLC, 544 U.S. 431, 449 (2005) (stating that

―Congress does not cavalierly pre-empt state-law causes

of action‖ (internal quotation omitted)); but see Cuomo v.

Clearing House Ass’n, L.L.C., --- U.S. ---, 129 S. Ct.

2710, 2732 (2009) (Thomas, J., dissenting) (collecting

view of four justices that the presumption against

preemption does not apply when interpreting the scope of

an express preemption provision). If the preemptive

scope of the statute is clear, however, ―the presumption

against preemption can be overcome.‖ Bruesewitz, 561

F.3d at 240.

We begin, then, by seeking to discern Congress‘

intent. The plain wording of the preemption provision is

of paramount importance, for this ―necessarily contains

the best evidence of Congress‘ pre-emptive intent.‖

Chamber of Commerce v. Whiting, No. 09-115, slip. op.

17

at 9 (U.S. May 26, 2011) (quoting CSX Transp., Inc. v.

Easterwood, 507 U.S. 658, 664 (1993)). We may also

consider the ―structure and purpose of the statute as a

whole,‖ Medtronic, 518 U.S. at 486 (internal quotation

marks omitted), the larger regulatory scheme, Bruesewitz,

561 F.3d at 243, and, where uncertainty persists, the

statute‘s legislative history, Deweese, 590 F.3d at 247;

Bruesewitz, 561 F.3d at 244 (explaining that ―resort to

legislative history is appropriate ‗when necessary to

interpret ambiguous statutory text‘‖ (quoting BedRoc

Ltd., LLC v. United States, 541 U.S. 176, 187 n.8 (2004)

(plurality opinion))).

On its face, § 5125(b)(1) is an expansive

preemption provision. Am. Chemistry Council, 468 F.3d

at 817 (describing § 5125(b)(1) as a ―broader preemption

[provision] with respect to state or local efforts to

regulate specific, enumerated subjects‖). It preempts all

non-federal laws, regulations, orders, or requirements

that are ―not substantively the same as‖ corresponding

federal regulations. Our threshold concern, then, is to

identify the contours of the non-federal law, regulation,

order, or requirement at issue in the case. Once we have

done so, we must ascertain (1) whether § 5125(b)(1)

applies to the non-federal law, regulation, order, or

requirement we have identified, and (2) whether the non-

federal requirement is ―substantively the same as‖ the

conditions imposed by federal hazardous materials law.

What, then, are the contours of the non-federal

18

law, regulation, order, or requirement invoked by Roth?

Although his complaint runs through the standard

catalogue of common law tort actions—negligence, strict

liability, products liability, and breach of warranty—Roth

is, at bottom, claiming that Norfalco had a common law

duty to design a safer tank car. He alleges in his

complaint, for example, that the ―railroad tank cars

[were] dangerous and defective because [they] did not

contain components which would indicate pressure . . . or

valves . . . which would prevent acid from spraying onto

people . . . who were unloading‖ the cars. He claims that

the unloading process was ―ultrahazardous‖ because the

tank cars lacked a safety valve and pressure gauge. He

contends that Norfalco had a duty to ―plac[e] valves . . .

on the pipes to prevent acid from spraying onto

[unloaders],‖ and to ―plac[e] gauges on the car which

would inform [an unloader] of the pressure in the car.‖

And he argues that Norfalco warranted that a chemical

unloader could safely remove sulfuric acid from its tank

cars. The sum of these contentions, though pleaded

under ostensibly distinct common law theories, is the

same: Roth seeks to impose a design requirement that, if

successful, would require Norfalco to install an

additional safety valve and pressure gauge on each of its

tank cars. See Kurns, 620 F.3d at 398 n.8 (focusing on

the ―gravamen‖ of the claim rather than the common law

label appended to it by the plaintiffs). Roth‘s common

law claims—including his claim of strict liability—thus

constitute ―non-federal requirement[s]‖ under the

19

HMTA. See Riegel, 552 U.S. at 324 (holding that a

statute‘s ―reference to a State‘s ‗requirements‘ includes

its common-law duties‖); Premium Mortg. Corp. v.

Equifax Info. Servs., LLC, 583 F.3d 103, 106 (2d Cir.

2009) (stating that ―obligations that take the form of

common-law rules‖ are ―easily encompass[ed]‖ by a

provision that preempts state ―requirement[s]‖).

We next turn to whether § 5125(b)(1) applies to

the design requirement claim raised by Roth. Section

5125(b)(1)(A)–(E) describes five transport-related

covered subjects. The express preemption provision

covers any non-federal requirement ―about‖ one of these

five covered subjects. Roth‘s design requirement falls

squarely within the subject area set forth in §

5125(b)(1)(E): it concerns the ―design[]‖ of a ―package,

container, or packaging component that is . . . qualified

for use in transporting hazardous materials in

commerce.‖ Roth is, after all, attempting to impose a

design requirement on a chemical tank car, which is

considered a package, container, or packaging

component that is approved for use in transporting

sulfuric acid by rail. Design requirements of a hazardous

material package, container, or packaging component are

the exclusive domain of the HMTA. Roth does not

dispute this point; in fact, his counsel acknowledged at

oral argument that the proposed design requirement fell

within § 5125(b)(1)(E).

Lastly, we ask whether the tank car design

20

requirement urged upon us is ―substantively the same as‖

the HMR design requirements for packages, containers,

or packaging components qualified for use in

transporting hazardous materials in commerce. It quite

clearly is not. A non-federal requirement is ―not

substantively the same‖ unless it ―conforms in every

significant respect to the Federal requirement.‖ 49

C.F.R. § 107.202(d); see also H.R. Rep. No. 101-444, at

24 (1990) (―[I]t should be noted that states may maintain

and enforce laws, regulations, rules, standards or orders

that are the same as their Federal counterparts.‖). Roth‘s

design requirement would impose conditions beyond

those imposed by the HMR and, therefore, it does not

conform in every significant respect to the federal

regulatory scheme. 49 C.F.R. § 107.202(d); see Chlorine

Inst., 29 F.3d at 496 (concluding that state regulation was

―not substantively the same as‖ the relevant HMR

requirement when it imposed a condition not required by

federal regulation).

Roth‘s common law claims, which seek to impose

design requirements upon a package, container, or

packaging component used to transport hazardous

materials in commerce, are expressly preempted under

the plain meaning of § 5125(b)(1). Because the text of

the provision is clear, we need go no further to determine

the scope of Congress‘ preemptive intent. Nonetheless,

the structure of the HMTA, as well as the purposes

underlying its enactment, lend additional support to our

21

conclusion. See Bruesewitz, --- U.S. ---, 131 S. Ct. at

1078–79 (looking to structure and purpose of statute to

bolster conclusion regarding preemptive scope even

when text was clear).

The overriding aim of the HMTA, as explained

above, was to restructure a national environment in

which ―many States and localities ha[d] enacted laws and

regulations [that] var[ied] from Federal laws and

regulations pertaining to the transportation of hazardous

materials, thereby . . . confounding carriers . . .

attempt[ing] to comply with multiple and conflicting . . .

regulatory requirements.‖ Hazardous Materials

Transportation Uniform Safety Act of 1990, Pub. L. No.

101-615, § 2, 104 Stat. 3244, 3245 (1990). To rectify

this hodgepodge of jurisdictional conflicts, Congress

sought to establish ―a uniform, national scheme of

regulation regarding the transportation of hazardous

materials.‖ CSX Transp., 406 F.3d at 674 (Henderson, J.,

concurring). The resulting regulatory framework is

detailed and comprehensive, and it devotes significant

attention to, inter alia, the packages, containers, and

packaging components that routinely move across state

lines. Chemical tank cars, which serve as bulk containers

for hazardous materials, are subject to their own unique

set of detailed specifications. This is exactly as one

would expect given the motivation underlying the

HMTA; were each state or locality permitted to impose

its own tank car design requirements, carriers would be

22

faced with a ―patchwork‖ of multiple and potentially

conflicting jurisdictional mandates, with resulting

confusion over how to comply. See Kurns, 620 F.3d at

398 (holding that the Locomotive Inspection Act, 49

U.S.C. § 20701 et seq., preempted state common law tort

claims when Congress evinced a clear goal of uniform

railroad equipment regulation, and explaining that ―[i]f

each state had its own standards for liability for railroad

manufacturers, equipment would have to be designed so

that it could be changed to fit these standards as the trains

crossed state lines, or adhere to the standard of the most

restrictive states‖).

The HMTA preemption provision was, and is, the

linchpin in Congress‘ efforts to impose nationwide

regulatory uniformity. Harmon, 951 F.2d at 1581 (―[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.‖); see

also CSX Transp., 406 F.3d at 674 (Henderson, J.,

concurring) (―It was to promote this goal of uniform

safety regulation by the federal agencies that the

Congress enacted the HMTA preemption provision.‖);

Jersey Cent. Power, 772 F.2d at 1113 (―Congress

included this [preemption] provision to preclude a

multiplicity of State and local regulations and the

potential for varying as well as conflicting regulations in

the area of hazardous materials transportation.‖ (internal

23

quotation marks omitted)). Indeed, when it was initially

enacted, the HMTA preemption clause contained only a

general inconsistency standard—state or local

―requirement[s]‖ were preempted if ―inconsistent‖ with

federal regulations. Transportation Safety Act of 1974,

Pub. L. 93-633, § 112, 88 Stat. 2156. This, thought the

Senate Committee on Commerce, would serve ―to

preclude a multiplicity of State and local regulations and

the potential for varying as well as conflicting regulations

in the area of hazardous materials transportation.‖ S.

Rep. No. 93-1192, at 37. The Committee was mistaken.

Non-federal requirements continued to proliferate over

the next two decades, leading Congress to overhaul—and

significantly expand—the HMTA‘s preemptive scope.

Today there are three separate sections in § 5125

that mandate preemption. Two continue to operate

according to a rough consistency standard. See 49 U.S.C.

§ 5125(a)(1)–(2). The third, upon which we focus here,

preempts expressly so long as a covered subject is in

play. 49 U.S.C. § 5125(b)(1). The Secretary of

Transportation is also authorized to make preemption

determinations, 49 U.S.C. § 5125(d), and localities may

petition for a preemption waiver in order to avoid the

HMTA‘s preemptive sweep, 49 U.S.C. § 5125(e).

Absent from the HMTA preemption provision,

however, is a savings clause exempting common law

requirements from the bundle of those non-federal laws

and regulations displaced by the federal scheme. This is

24

important, for in Riegel v. Medtronic, Inc., the Supreme

Court held that unless there is some indication to the

contrary, ―reference [by a preemption clause] to a State‘s

‗requirements‘ includes its common-law duties.‖ 552

U.S. at 324. Congress may displace this default

condition by tempering a preemption provision with a

savings clause. See Williamson v. Mazda Motor of Am.,

Inc., --- U.S. ---, 131 S. Ct. 1131, 1135–36 (2011); Geier

v. Am. Honda Motor Co., Inc., 529 U.S. 861, 868–69

(2000). Thus, in Geier v. American Honda Motor Co.,

Inc., the Court held that state common law requirements

were not preempted by a federal motor vehicle regulation

that expressly preempted any non-federal safety standard

―not identical to the Federal standard.‖ 529 U.S. at 864

(quoting 15 U.S.C. § 1392(d)). The reason, said the

Court, lay in the presence of a savings clause that read,

―[c]ompliance with‖ a federal safety standard ―does not

exempt any person from any liability under common

law.‖ Id. at 868. By including such a clause, Congress

manifested an intent not to displace common law claims.

Id. In contrast, there is nothing in the HMTA to indicate

that Congress did not wish to preempt state common law

requirements. We are thus left with a robust preemption

provision that leaves little, if any, room for non-federal

regulation.

In sum, the structure and purpose of the HMTA

confirms what the text of § 5125(b)(1) makes plain: the

HMTA preempts state common law claims that, if

25

successful, would impose design requirements upon a

package or container qualified for use in transporting

hazardous materials in commerce. Each of Roth‘s

common law claims is therefore expressly preempted.

Our holding is, in this respect, more expansive than that

of the District Court, which concluded that the claim for

strict liability was not displaced by the HMTA. But this

claim, however branded, would lead to results precluded

by federal law. Thus, it is not outside § 5125(b)(1)‘s

preemptive scope.

Roth attempts to avoid this result by questioning

the very applicability of the HMTA to the case at bar. He

contends that the statute reaches only to matters of

―transport‖ in ―commerce,‖ a limitation that does not

encompass the accident at issue here. In other words,

Roth claims that when a consignee such as Glatfelter (or

its employee) unloads a hazardous material that has

reached its final destination, the HMTA does not apply

because the act of unloading is not ―transport‖ in

―commerce.‖ And the HMTA, Roth argues, has nothing

to say about such non-transport activities.

The HMTA defines ―transport‖ as ―the movement

of property, and loading, unloading, or storage incidental

to the movement.‖ 49 U.S.C. § 5102(13). At the time

Roth was injured, the phrase ―loading, unloading, or

storage incidental to the movement‖ was not defined.

The DOT has subsequently promulgated a final rule

defining this phrase. ―Unloading incidental to

26

movement‖ is now taken to mean, inter alia, ―emptying a

hazardous material from the bulk packaging after the

hazardous material has been delivered to the consignee

when performed by carrier personnel or in the presence

of carrier personnel.‖ 49 C.F.R. § 171.1(c)(3) (emphasis

added). In contrast, ―unloading incidental to movement‖

does not include

[u]nloading of a hazardous material from a

transport vehicle or a bulk packaging

performed by a person employed by or

working under contract to the consignee

following delivery of the hazardous material

by the carrier to its destination and departure

from the consignee‘s premises of the

carrier‘s personnel . . . .

49 C.F.R. § 171.1(d)(2). Roth claims that he falls within

this carve-out, for at the time of his injury, he was an

employee of a consignee (Glatfelter) unloading sulfuric

acid from a bulk packaging (the tank car) following

delivery by the carrier (Norfalco) and departure of the

carrier‘s employees. This, according to Roth, places the

circumstances surrounding his accident, and any common

law claims arising therefrom, outside the regulatory

scheme erected by the HMTA.

Roth‘s theory is creative but wrong. In his haste to

invoke the quoted portions of the HMR, Roth forgets that

we need not look beyond the text of a statute unless its

27

meaning is ambiguous. Chevron U.S.A., Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837, 844 (1984); Lee v.

Ashcroft, 368 F.3d 218, 222 (3d Cir. 2004). When the

meaning of statutory text is plain, our inquiry is at an

end. Restrepo v. Att’y Gen. of the United States, 617

F.3d 787, 792 (3d Cir. 2010); Steele v. Blackman, 236

F.3d 130, 133 (3d Cir. 2001). Here, the statute and its

applicability could not be more clear. Roth seeks to

impose a tank car design requirement. Section

5125(b)(1) expressly preempts any common law

requirement ―about‖ the design of a ―package, container,

or packaging component . . . qualified for use in

transporting hazardous materials in commerce.‖ Roth

concedes that Norfalco‘s tank cars are containers

qualified for use in transporting hazardous materials in

commerce. Thus, the HMTA plainly encompasses

Roth‘s common law claims. It is irrelevant what Roth

was doing at the precise moment of his injury. This only

makes sense, for it cannot be the case that the

comprehensive design requirements erected by the

HMTA cease to govern simply because the tank car was

emptied of its contents days after its delivery. The tank

car is, at all times, a container qualified for use in

transporting hazardous materials. The proposed design

requirement is expressly preempted.

V

For the reasons set forth above, we hold that the

common law claims raised by Roth are expressly

28

preempted by the HMTA. Accordingly, we will affirm

the order of the District Court granting summary

judgment in favor of Norfalco.

29