Opposition Brief — Public Utilities Commission of Ohio v. CSX Transportation, Inc.

CD) | AUG <9 Be

No. 90-95 JOSEPH F. oR

IN THE

Supreme Court of the United States

October Term, 1989

|

THE PUBLIC UTILITIES COMMISSION OF OHIO, et al.,

Peti tioners,

v.

CSX TRANSPORTATION, INC., et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

SAMUEL H. PorTER, Counsel of Record

PATRICK J. SMITH

ROBERT W. TRAFFORD

KATHLEEN MCDONALD O’MALLEY

JANET J. HENRY

PORTER, WRIGHT, Morris & ARTHUR

41 South High Street

Columbus, Ohio 43215

| Attorneys for Respondents

Of Counsel:

A. GAYLE JORDAN

Norfolk & Western Railway Co.

SALLY J. KIRCHER

CSX Transportation, Inc.

JANET SCAGNELLI

Consolidated Rail Corporation

Mary P. SCLAwWy

Grand Trunk Western Railroad Co.

Question Presented

Whether the Court of Appeals correctly concluded

that §434 of the Federal Railroad Safety Act, 45 U.S.C.

§434, preempts state regulation of the transportation of

hazardous materials by rail.

LIST OF PARTIES AND RULE 29.1

LIST OF AFFILIATES

The parties before the Court of Appeals and this

Court are all listed in the caption.

CSX Transportation, Inc. (“CSXT”) is a wholly-

owned subsidiary of CSX Corporation (“CSX’’). The

subsidiaries and affiliates of CSXT or CSX, other than

those wholly owned by them, are:

The Akron Union Passenger Depot Company;

Allegheny and Western Railway Company;

Augusta and Summerville Railroad Company;

The Baltimore and Cumberland Valley Railroad

Extension Company;

The Baltimore and Philadelphia Railroad Company;

Beaver Street Tower Company;

Central Transfer Railway and Storage Company;

Chatham Terminal Company;

Clearfield and Mahoning Railway Company;

The Cleveland Terminal & Valley Railroad

Company;

Dayton and Michigan Railroad Company;

Dayton-and Union Railroad Company;

The Home Avenue Railroad Company;

The Lakefront Dock and Railroad Terminal

Company:

North Charleston Terminal Company:

Richmond-Washington Company, which has

a subsidiary, RF&P Corporation;

Winston-Salem Southbound Railway Company;

Woodstock & Blockton Railway Company;

Mid-Allegheny Corporation

a

Norfolk and Western Railway Company is a wholly-

owned subsidiary of Norfolk Southern Corporation, a

publicly-owned corporation. The following majority-

owned subsidiaries of Norfolk Southern Corporation

have public stockholders:

High Point, Randleman, Asheboro and Southern

Railroad Company

Mobile and Birmingham Railroad Company

The North Carolina Midland Railroad Company

The South Western Railroad Company

Southern Railway Company

State University Railroad Company

Wabash Railroad Company

Yadkin Railroad Company

Grand Trunk Western Railroad Company is a

wholly owned subsidiary of Grand Trunk Corporation

which is owned by Canadian National Railways, a Cana-

dian crown corporation.

iv

TABLE OF CONTENTS

QUE AMY SURED Wines eines oS vececebaeeéns

RULE 29.1 LIST OF AFFILIATES.................

REASONS FOR DENYING THE WRIT............

A. The decisions of the lower courts are in

accord with the decisions of every other

court to have considered the issue .........

B. The decisions of the lower courts are consis-

tent with all Congressional pronouncements

Oth GI eo Rt a a

1. The decisions in this case are the only

ones which will further the Congres-

sional goal of national uniformity in the

regulation of rail safety ................

2. The lower courts’ conclusion that Con-

gress did not remove the transportation

of hazardous materials by rail from the

ambit of “Railroad Safety” under §434

was guided by and consistent with the

dictates of this Court regarding interpre-

tation of Congressional intent ..........

C. The Sixth Circuit’s decision does not conflict

with the applicable decisions of this Court . .

_Vi

13

19

1. The Supreme Court pronouncements to

which the PUCO refers are neither con-

trolling nor relevant...............----

2. The lower court decisions were dictated

by this Court’s admonitions regarding

the proper approach to the reconcilia-

tion of two potentially conflicting federal

BRAD re ee eee ee

CO AEs Gikin 09 64 05 0 00 ep tn cee ae eve wesess

CERTIFICATE OF SERVICE ...........--.-200--

E

19

vi

TABLE OF AUTHORITIES

CASES

Page

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) 18

Atchison, Topeka & Santa Fe Ry. Co. v. Ill. Commerce

Comm., 453 F.Supp. 920 (N.D.Ill. 1977) .......... 6,17,18

CSX Transportation, Inc. v. City of Tullahoma, Case

No. Civ. 4-87-47, Slip op. at 11 (E.D.Tenn. Feb.

See I i dipislaatain'c s'nn.e'n hens Vea e Beh a eky Odds 8

CSX Transportation, Inc. v. Public Utilities Commis-

sion of Ohio, 701 F.Supp. 608 (S.D. Ohio 1988)... 4,12,16,

18,19,23

CSX Transportation Inc. v. Public Utilities Commis-

sion of Ohio, 901 F.2d 497 (6th Cir. 1990) ....... 6,16,19,

21,24

Cannon v. University of Chicago, 441 U.S. 677 (1979) 18

City of Covington, Kentucky v. The Chesapeake &

Ohio Railway Co., 708 F. Supp. 806 (E.D. Ky.

Se SUAS ods pie dee he TEMAS eDRREUT OO 60 13

Consolidated Rail Corp. v. Smith 664 F. Supp. 1228

Oe ek ks ow 6 a 13

Equitable Life Assur. Soc. of U.S. v. Grosvenor, 426

F.Supp. 67 (W.D. Tenn. 1976), affd 582 F.2d 1279

(6th Cir. 1978), cert. denied, 439 U.S. 116 (1979) 14

Florida National Guard v. Federal Labor Relations

Authority, 699 F.2d 1082 (11th Cir.), cert. denied,

TS ie th ee weneess 18

Louisiana Public Service Commission vt FCC, 476

EE es ie ae Eee 19,22

vii

Page

Merrill Lynch v. Ware, 414 U.S. 117 (1973)......... 23

Missouri Pacific Ry. Co. v. Railroad Comm. of Texas,

671 F.Supp. 466 (W.D. Tex. 1987) affd, 850 F.2d

Ge I cio sc Lede cit ekwaevectesees 4,7

Morton v. Mancari, 417 U.S. 535 (1974) ............ 22

Norfolk & Western Railway Company v. Public

Utilities Comm. of Ohio, 727 F.Supp. 367 (S.D.

CE Cok saute (retthcabebs cueecace ce *s 12

Pacific Gas and Electric Co. v. State Energy Resources

Conservation & Development Comm’n., 461 U.S.

EP Rett at ice deeb san bebbses konaveeas i 19,20,22

Radzanower v. Touche Ross & Co., 426 U.S. 148

8 OP SP Oe Pe aa Ce Ee ee eee 22

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984)... 14,22

Silver v. New York Stock Exchange, 373 U.S. 341

BRB ge iso a IR Be Ba a 23

St. Regis Mohawk Tribe, New York v. Brock, 769 F.2d

37 (2d Cir. 1985), cert. denied, 476 U.S. 1140

Ga arta t te lee h Ponce reneecceces 18

TVA ©, TH, SBF UB. BES CTBTO) occ bcc ccc cecccess 15

U.S. v. Hansen, 772 F.2d 940, (D.C.Cir.), cert. qa

denied, 475 US. 1045 (19865) .... 20. ccc cccecees. 14

U.S. v. United Continental Tuna Corp., 425 U.S. 164

CE Fi Clos Ewe eh ead ei eles bade eeee's ces 15

CONSTITUTIONAL PROVISIONS

U.S. Const. Art. I, §8,c13........ 6.60 cece cree e ees 2

SR os bck deed weneusede 2

viii

Page

STATUTES

Federal Insecticide, Fungicide and Rodentcide Act

(“FIRFA’”), 7 U.S.C. §136, et. seq. 2.6666 cen 22

Tucker Act, 28 U.S.C. $1491... ccc ccc ccc ccc ceeees 22

Federal Railroad Safety Act (“FRSA”), 45 U.S.C.

$491 C8 964 cecccccccccccctcccceccceccceceeccee passim

Hazardous Materials Transportation Act (“HMTA”),

I ES oc asc cakasceccuenichans: passim

Ohio Revised Code (“O.R.C.”) §§4905.80, 4905.81,

MBOGGS amd TOT D4 occcccccccccccccccccececees 2,3

MISCELLANEOUS

H.R. Rep. No. 1194, 91st Cong., 2d Sess., reprinted

in, 1970, U.S. Code Cong. & Admin. News 4104,

at GLIO-GEEE ccc ccc ccccccccccccceccceeceeceeees 9,10

Hearings Before the Subcommittee on Transportation

and Aeronautics of the Committee on Interstate and

Foreign Commerce, 91st. Cong., 2d Sess. 43 (1970) 1]

S. Rep. No. 1192, 93rd Cong., 2d Sess. 37 (1974) ... 24

Hazardous Materials Transportation Act Amendments:

Joint Hearing Before The Subcommittee on Surface

Transportation and Subcommittee on Aviation of

the Committee on Public Works and Transportation

on H.R. 3502, 96th Cong., Ist Sess. 33 (1979) ..... 17

No. 90-95

In THE

Supreme Court of the United States

October Term, 1989

THE PUBLIC UTILITIES COMMISSION OF OHIO,

et al.,

Petitioners,

Vv.

CSX TRANSPORTATION, INC.., et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents CSX Transportation, Inc., Consoli-

dated Rail Corporation, Norfolk and Western Railway

Company and Grand Trunk Western Railroad Company,

respectfully request that this Court deny the Petition

for a Writ of Certiorari seeking review of the opinion of

the United States Court of Appeals for the Sixth Circuit

in this case. The opinion of the Sixth Circuit is reported

at 901 F.2d 497. The opinion of the United States

District Court for the Southern District of Ohio, which

was affirmed by the Sixth Circuit, is reported at 701

F.Supp. 608.

2

STATEMENT OF THE CASE

On September 26, 1988, the Ohio General Assembly

enacted the Ohio Hazardous Materials Transportation

Act (‘OHMTA”). That Act authorized the Public Utili-

ties Commission to adopt and enforce regulations relat-

ing to the transportation of hazardous materials by all

modes of transportation, including rail. On September

27, 1988, Respondents brought this action to enjoin

enforcement of those provisions of the OHMTA applica-

ble to rail carriers and to obtain an order from the

district court declaring all such provisions invalid be-

cause they are preempted by federal law and are an

undue burden on interstate commerce. Specifically, Re-

spondents sought an order from the district court (1)

declaring Ohio Revised Code (“O.R.C.”) §§4905.80,

4905.81, 4905.83 and 4907.64, and all regulations issued

pursuant thereto, invalid as applicable to rail carriers

under the United States Constitution Article VI, Clause

2 (the Supremacy Clause) and Article I, Clause 3,

Section 8 (the Commerce Clause) and the express

preemption provisions of both the Federal Railroad

Safety Act (“FRSA”), 45 U.S.C. §42! et seq. and the

Hazardous Materials Transportation Act (“HMTA’”), 49

U.S.C. §1811 et seqg., and (2) preliminarily and perma-

nently enjoining the enforcement of each such statute

and regulation as to rail carriers.

Upon representation by the Ohio Public Utilities

Commission (“PUCO”) that regulations enacted pursu-

ant to the OHMTA would not become enforceable

against rail carriers until December 10, 1988, Respon-

dents withdrew their request for preliminary injunctive

relief and submitted a Motion for Partial Summary

Judgment on October 26, 1988. Respondents sought a

declaratory judgment and reauested that the PUCO and

its Chairman and Commissioners (hereinafter, collec-

3

tively “the PUCO”) be permanently enjoined from en-

forcing the Ohio statutes and regulations because state

regulation of the transportation of hazardous materials

by rail is preempted by the explicit terms of both the

FRSA and the HMTA.

On November 10, 1988, the PUCO filed a Cross-

Motion for Partial Summary Judgment. The PUCO ar-

gued that the Ohio statutes and regulations are not

preempted by the FRSA or the HMTA and are, in fact.

specifically authorized by the HMTA. On that basis, the

PUCO requested an order from the district court declar-

ing O.R.C. §§4905.81, 4905.83 and 4907.64, and all regu-

lations thereunder, valid and enforceable under the

Supremacy Clause.

The preemption provision of the FRSA reads:

The Congress declares 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 Transporta-

tion] has adopted a rule, regulation, order or stan-

dard covering the subject matter of such state

requirement. A state may adopt or continue in force

an additional or more stringent standard relating to

railroad safety when necessary to eliminate or re-

duce an essentially local safety hazard, and when

not incompatible with any Federal law, rule, regula-

tion, order or standard, and when not creating an

undue burden on interstate commerce.

45 U.S.C. §434 (emphasis added). The operation of this

provision is straightforward: if no federal regulation

covers a railroad safety matter, the states may regulate;

if federal regulation addresses a “subject matter” which

q

relates to “railroad safety,” the states are preempted

from regulating unless they meet the three part test of

§434 -ie., state regulation is more stringent and ad-

dresses a local safety hazard, state regulation is not

incompatible with federal law, and state regulation does

not impose an undue burden on interstate commerce.

See, e.g., Missouri Pacific Ry. Co. v. Railroad Comm. of

Texas, 671 F.Supp. 466, 671 (W.D. Tex. 1987), affd., 850

F.2d 264 (5th Cir. 1988).

There is no question that the regulations issued

pursuant to the OHMTA address a “subject matter” as

to which the Secretary has already “adopted a rule,

regulation, order or standard.” Indeed, except in a few

material respects, the Ohio regulations governing the

transportation of hazardous materials are identical to

those adopted by the Secretary pursuant to the HMTA.

There is also no question that the OHMTA regulations

could never satisfy the three part test for an exception

to §434 because they were enacted on a state-wide,

rather than local, basis. Accordingly, all parties and both

of the lower courts agree that the issue which is deter-

minative of the applicability of the preemptive bar of

§434 is whether regulations governing the transporta-

tion of hazardous materials by rail adopted under the

HMTA are regulations governing an area of “railroad

safety” under the FRSA.

Following a hearing on November 30, 1988, the

district court concluded that the Ohio statutes and

regulations governing the transportation of hazardous

materials by rail do constitute laws relating to “railroad

safety” and, thus, are preempted by the explicit preemp-

tion provision of the FRSA, 45 U.S.C. §434. CSX Trans-

portation, Inc. v. Public Utilities Commission of Ohio, 701

F.Supp. 608, 617 (S$.D. Ohio 1988). Having concluded

that those statutes and regulations are preempted, the

5

court declared them invalid under the Supremacy

Clause and entered a permanent injunction against their

enforcement on December 10, 1988. Id. 701 F.Supp. at

618.

The district court found that its decision as to

preemption under the FRSA was determinative of the

invalidity and unenforceability of the Ohio provisions

and that further inquiry was, thus, unnecessary. Id.

Hence, without considering whether the OHMTA regu-

lations were also preempted under the preemption pro-

vision of the HMTA, the district court entered a Rule

54(b) order finding “no just reason for delay” and the

matter was appealed to the United States Court of

Appeals for the Sixth Circuit.

In an opinion issued April 13, 1990, the Sixth Circuit

affirmed the decision of the district court in its entirety,

finding:

1. that the HMTA is a law relating to railroad

safety, even if regulations pursuant to it are

promulgated by the Secretary of Transportation

1The HMTA preemption provision is narrower than that of the

FRSA. It provides:

Any requirement of a State or political subdivision thereof,

which is inconsistent with any requirement set forth in [the

HMTA], or in a regulation issued under [the HMTA], is

preempted.

40 U.S.C. §1811(a). Because the OHMTA requirements differ in

certain material respects, most particularly with respect to the

imposition of penalties, from those issued under the HMTA, Re-

spondents contend that the Ohio regulations are inconsistent with

their federal counterparts and are, thus, also preempted under the

preemption provision of the HMTA. Because they agreed that the

Ohio regulations are barred by §434 of the FRSA, neither of the

courts below reached the issue of whether those regulations were

also barred by the HMTA.

6

directly rather than by the Federal Railroad

Administration (CSX Transportation, Inc., v. Pub-

lic Utilities Commission of Ohio, 901 F.2d at 497,

501):

2. that, in giving the Secretary of Transportation

authority to promulgate regulations involving

the intermodal transportation of hazardous

materials under the HMTA, Congress did not

concurrently repeal the broad historic federal

preemption of state railroad regulation (Id.); and

3. that, as a result of 1 and 2 above, the language of

the preemption provision in the FRSA, “any law

. relating to railroad safety,” applies to the

HMTA as it relates to the transportation of haz-

ardous materials by rail and, thus, operates to

preempt state regulation of that subject matter.

(Id.).

REASONS FOR DENYING THE WRIT

A. THE DECISIONS OF THE LOWER COURTS

ARE IN ACCORD WITH THE DECISIONS

OF EVERY OTHER COURT TO HAVE CON.-

SIDERED THE ISSUE

The district court and court of appeals in this case

are not alone in concluding that regulations adopted by

the Secretary pursuant to the HMTA constitute regula-

tions “‘by the Secretary” regarding an area of “railroad

safety” and that they therefore preempt state regulation

as to that subject matter. Every court to consider the

question has reached the same conclusion.

In Atchison, Topeka & Santa Fe Ry. Co. v. Ill. Com-

merce Comm., 453 F.Supp. 920 (N.D.IIl. 1977) the Dis-

trict Court for the Northern District of Illinois

considered the preemptive effect of both the FRSA and

7

the HMTA on regulations issued by the Illinois Com-

merce Commission governing the handling of tank cars

containing hazardous materials. The court concluded

that any action taken by the Secretary, whether under

the HMTA or the FRSA, must be considered in deter-

mining whether the Secretary has “covered the subject

matter” addressed by state regulation. The court said:

However, these statutes do not require the overly

technical interpretation which would subject or-

ders and regulations issued by the Secretary under

one law to a different preemption standard than

those under another. [FRSA and HMTA] The Rail-

road Safety Act of 1970 provides that state action is

preempted when the Secretary has issued orders or

regulations covering the field. This is not limited

merely to those promulgated under that Act, but

refers instead to any action taken by the Secretary . . .

Any more narrow interpretation of the Railroad

Safety Act would frustrate its stated purpose of

establishing uniform national standards.

453 F.Supp. at 924. (Emphasis added).

Similarly, in Missouri Pacific Ry. Co. v. Railroad

Comm. of Texas, 671 F.Supp. 466 (W.D.Tex. 1987), affd.,

850 F.2d 264 (5th Cir. 1988), the court explained:

§434 refers to acts by “the Secretary,” referring to

the Secretary of Transportation, and does not con-

fine itself to acts pursuant to the FRSA. Thus, an act

by the Secretary pursuant to, for example, the

HMTA could preempt state law under the terms of

§434.

671 F.Supp. at 471 n.4 and 482.

8

Finally, in CSX Transportation, Inc. v. City of Tui-

lahoma, Case No. Civ. 4-87-47, slip op. at 11 (E.D.Tenn.

Feb. 17, 1988), Judge Jarvis stated:

. . . Transportation of hazardous materials is regu-

lated by the Secretary of Transportation under both

the HMTA and the FRSA. Although the preemption

standard is somewhat different under the two acts,

under the FRSA, state action is preempted when

the Secretary has issued orders or regulations cov-

ering the field. Preemption is not limited to those

regulations promulgated under the FRSA, but refer

instead to any other rule, regulation, order, or stan-

dard covering the subject matter and adopted by the

Secretary.

Id. (Emphasis added).

Thus, the issue presented to this Court is not one

that has confused the various lower federal courts or has

engendered debate among them. It is an issue which has

resulted in uniform, unequivocal findings that the pre-

emption provision of the FRSA applies with equal force

to all regulations issued by the Secretary of Transporta-

tion, including those issued pursuant to the HMTA. This

fact alone militates strongly against any need for consid-

eration by this Court.

B. THE DECISIONS OF THE LOWER COURTS

ARE CONSISTENT WITH ALL CONGRES-

SIONAL PRONOUNCEMENTS ON THE

ISSUE

1. The Decisions in This Case are the Only Ones

Which Will Further the Congressional Goal of

National Uniformity in the Regulation of Rail

Safety

The first sentence of §434 of the FRSA states un-

equivocally Congress’ objective with respect to all rail-

9

road safety laws: national uniformity. Congress declared

that “laws, rules, regulations, orders and standards relat-

ing to railroad safety shall be nationally uniform to the

extent practicable.” 45 U.S.C. §434. The legislative his-

tory and enforcement structure of the FRSA confirm

that, given the uniquely interstate character of railroads,

Congress determined that national uniformity was criti-

cal not just in the adoption of standards, but, impor-

tantly, also in the interpretation, application and

enforcement of those standards as well.

The House Report accompanying the 1970 Act

gives a detailed description of the interstate character of

railroad systems, and persuasively states the resulting

need for national uniformity in both regulation and

enforcement:

With the exception of industrial or plant railroads,

the railroad industry has very few local characteris-

tics. Rather, in terms of its operations, it has a truly

interstate character calling for a uniform body of

regulation and enforcement. It is a national sys-

tem ... [T]he vast bulk of railroad mileage, and

operations thereof, are by companies whose opera-

tions extend over many State lines . . . The integral

operating parts of these companies cross many

State lines. In addition to the obvious areas of

rolling stock and employees, such elements as oper-

ation rules, signal systems, power supply systems,

and communication systems of a single company

normally cross many State lines. To subject a carrier

to enforcement before a number of different State

administrative and judicial systems in several areas

of operation could well result in an undue burden on

interstate commerce.

H.R. Rep. No. 1194, 91st Cong., 2d Sess., reprinted in,

1970, U.S. Code Cong. & Admin. News 4104, at 4110-4111.

10

This point is reiterated often in the relevant legislative

history:

The Committee does not believe that safety in the

nation’s railroads would be advanced sufficiently by

subjecting the national rail system to a variety of

enforcement in 50 different judicial and administra-

tive systems. Accordingly, while it has preserved the

framework of certification, it has modified the con-

cept insofar as it applies to the nation’s rail system to

make all enforcement Federal in nature.

Id. at 4409 (emphasis added).

It is the policy of Congress that rail safety regula-

tions be nationally uniform to the extent possible

|O|nce the Secretary |of Transportation] has pre-

scribed a uniform national standard. the State

would no longer have authority to establish state-

wide standards with respect to rail safety.

Id. at 4116-17.

This goal of national uniformity was carefully inte-

grated into the statutory framework of the FRSA. The

FRSA accomplishes its objective in two specific ways:

(1) it preempts all state and local laws relating to rail

safety to the extent the Secretary has promulgated

regulations covering the same subject matter: and. (2)

through §435. it returns to the states a very limited role

with respect to some, but not all, of the areas as to which

there is preemption. Thus, the role of the states under

the FRSA is strictly limited to surveillance and inspec-

tion activities, 45 U.S.C. §435(a). while Congress re-

served to the Secretary the exclusive power to assess and

compromise penalties, and. except in very limited cir-

cumstances, to seek injunctive relief.

—_——

11

The concept of preemption of state regulation ac-

companied by severely limited state involvement in

enforcement of federal requlations was central to the

Congressional intent in passing the FRSA. Indeed, the

legislative history makes plain that the question of what

role would be permitted the states in the regulation of

railroad safety was the most thoroughly debated portion

of the FRSA. Thus, for example, Representative

Springer observed during the hearings on the FRSA

before the House Subcommittee on Transportation and

Aeronautics:

I think tais [preemption] is the great area of problem,

Mr. Secretary, where there would be a possibility,

this is just opinion, but I think I can read that this

would be the area probably where we might have

the most agreement or disagreement about what

ought to be done. I think this is really what the

turning point of the bill will be, in my opinion.

See, Hearings Before The House Subcommittee on Trans-

portation and Aeronautics, May 17, 19, 22 and 23, 1970,

regarding the Federal Railroad Safety and Hazardous

Materials Control Legislation, U.S. Government Printing

Office, at p.43.

Similarly, Representative Kuykendall captured the

sense of Congress when he noted:

There is not much disagreement with this bill and it

seems to me that almost the entire area of disagree-

ment has now been pretty well isolated. Disagreeing

with your position on the overall goals of this bill

would be just like disagreement with God and

motherhood. You just don’t do it. So lets get to the

area of discussion of what we are faced with, the

problem of preemption and authority of the different

levels of regulatory agencies.

12

Id. at 141.

Thus, “[t]he legislative history of the FRSA shows

that the issue of Federal preemption was vigorously

debated, leaving a clear record of Congressional intent

for virtually complete preemption in the area of railroad

safety laws.” Norfolk & Western Railway Company v. The

Public Utilities Commission of Ohio, 727 F.Supp. 367, 369

(S.D.Ohio 1990) (finding that §434 of the FRSA

preempts state regulations mandating walkways at rail

crossings where the Secretary had decided not to man-

date the same). .

The district court and court of appeals in this case

both explicitly recognized that the challenged Ohio

statutes turned Congressional intent on its head. As the

district court found, “Ohio has attempted to do pre-

cisely that which Congress sought to prohibit.” See, CSX

Transportation, Inc. v. The Public Utilities Commission of

Ohio, 701 F.Supp. at 617. The decisions below correctly

protect Congressional objectives by prohibiting the

State of Ohio from adopting regulations similar to those

promulgated by the Secretary relating to the transporta-

tion of hazardous materials by rail, and from imposing a

mechanism for enforcement of those laws by state offi-

cials through the assessment of fines and forfeitures and

through the prosecution of administrative and judicial

proceedings.

Moreover, the implications of Ohio’s actions go

well beyond authorizing regulation and enforcement at

the state level. Had the lower courts accepted the

PUCO’s contentions as true, regulation of the rail trans-

portation of hazardous materials could conceivably oc-

cur at all non-federal levels, bogging the nation’s

railroads, so national in scope and character, in a welter

of local regulations and enforcement schemes. Such a

13

result would have been at extreme odds with the Con-

gressional goal of national uniformity in this area.

As the court stated in City of Covington, Kentucky v.

The Chesapeake & Ohio Railway Co., 708 F.Supp. 806,

809 (E.D. Ky. 1989), quoting, Consolidated Rail Corp. v.

Smith, 664 F.Supp. 1228, 1238 (N.D. Ind. 1987), a case in

which a local speed ordinance was held to be

preempted:

Congress was concerned that the existence of fifty

separate regulatory systems in the fifty states would

undermine safety. If so, separate regulation by

every city, village, township, or hamlet along the

mainline would undermine safety infinitely more.

Thus, it is apparent that the lower courts carefully

examined and took their lead from all relevant Congres-

sional expressions of policy in reaching their decisions

in this case. This conservative adherence to the well and

oft-expressed intentions of Congress certainly does not

demand further scrutiny by this Court.

2. The Lower Courts’ Conclusion That Congress

Did Not Remove the Transportation of Hazard-

ous Materials by Rail From the Ambit of “Rail-

road Safety” Under §434 Was Guided by and

Consistent With the Dictates of This Court

Regarding Interpretation of Congressional

Intent

The PUCO does not dispute that when Congress

enacted the FRSA in 1970 and used the phrase

“laws . . . relating to railroad safety” in the preemption

provision therein, regulations governing the transporta-

tion of hazardous materials were consciously and ex-

14

pressly included within that language. The legislative

history and structure of the FRSA make that conclusion

irrefutable. The PUCO contends, however, that the

legislature subsequently altered that legislative scheme

and removed hazardous materials regulation from the

universe of rail safety matters addressed under §434.

Both the district court and the Sixth Circuit concluded

that adopting the PUCO’s position would demand that

they ignore relevant and specific guidelines for the

resolution of questions regarding legislative intent dic-

tated by this Court.

Both the district court and the Sixth Circuit con-

cluded that, since there is no language in the FRSA or

the subsequently enacted HMTA, or in the legislative

- history of either, which explicitly states that, by virtue

of the HMTA, states are now free to regulate in areas

from which they had been previously excluded under

$434, the PUCO’s argument must be viewed as one

urging the “implied repeal” of §434.2 And, both recog-

nized that it is a fundamental principle of statutory

construction that the implied repeal of an earlier statute

by mere enactment of a later, even potentially conflict-

ing one, is disfavored and should be avoided whenever

possible. See e.g, Ruckelshaus v. Monsanto Co., 467 U.S.

986. 1013 (1984) (Supreme Court has consistently rec-

2A statute is expressly repealed jonly| when the later law

“designates the statute repealed in such manner as to leave no doubt

as to what statute is intended.” Equitable Life Assur. Soc. of US. v.

Gresvenor, 426 F.Supp. 67. 71 (W. D. Tenn. 1976), affd. 582 F.2d

1279 (6th Cir. 1978). cert denied, 439 U.S. 1116 (1979) (emphasis

added). See also U.S. v. Hansen, 772 F.2d 940 (D.C. Cir.) cert

denied, 475 U.S. 1045 (1985) (courts should assume Congress will

expressly designate each of the provisions of former related statutes

whose application it wishes to suspend by later statutory enact-

ment). There is absolutely no evidence of an express repeal of $434,

either through the enactment of the HMTA or otherwise.

15

ognized that repeals by implication are disfavored):

TVA v. Hill, 437 U.S. 153, 189-90 (1978) (disfavor of

implied repeal is “cardinal rule”: intent to repeal or

amend must be “manifest’); U.S. v. United Continental

Tuna Corm., 425 U.S. 164, 168-69 (197€) (disfavor of

implied repeal carries great weight: court should be

hesitant to infer that Congress meant to invade or

narrow scope of pre-existing statute without explicitly

expressing intent to do so).

It was on these dictates of this Court that the lower

courts based their conclusion that they must find a

“clear” and “manifest” intent by Congress to repeal or

amend §434 before they could conclude that the regula-

tion of the transportation of hazardous materials by rail

was no longer to be considered an area of “railroad

safety.” Not only were the lower courts unconvinced

that ss had manifested any such intent, they

concel that there was, in fact, evidence of a contrary

intention — ie, to preserve the applicability of the

preemptive effect of §434 in this context.

The PUCO’s petition, as did its briefs in the courts

below, seeks to make much of the asserted shift from a

“modal” to an “intermodal” approach to the regulation

of hazardous materials and the transfer of regulatory

authority from the FRA (where it resided by delegation

from the Secretary) to the Secretary. The PUCO’s argu-

ments were rejected by the courts below for good

reason. As the Sixth Circuit explained:

Although we credit the PUCO’s compelling argu-

ment that the creation of the HMTA in 1974 re-

moved promulgation (though not enforcement) of

regulations under the Explosives Act from the FRA.

we do not believe that such removal changes the

fact that FRSA preemption relates to all rules and

regulations regarding railroad safety promulgated

16

by the Secretary, whether or not such regulations

are promulgated by the FRA through power dele-

gated by the Secretary. See 45 U.S.C. §434. Clearly,

the HMTA is a law relating to railroad safety, even

if regulations pursuant to it are promulgated by the

Secretary directly, not by the FRA.

901 F.2d at 501.

Similarly, the trial court observed:

Defendants point out that the HMTA transferred

regulatory authority over hazardous materials

transportation from the Federal Railroad Adminis-

tration (FRA) to the Secretary of the Department

of Transportation and argue that this signifies a

Congressional intent that such regulations should

not be governed by the preemption provisions of

the FRSA. Defendants overlook the fact that the

preemption provisions of the FRSA apply to rail

safety measures adopted by the Secretary, not the

FRA. By transferring hazardous materials regula-

tion from the FRA to the Secretary, Congress did

not in any way separate railroad safety regulation

from hazardous materials regulation, rather, the

Secretary is responsible for both. Indeed, as noted,

the FRSA preemption provision is tied to railroad

safety regulations adopted by the Secretary, not by

the FRA. Defendants’ argument would make sense

only if FRSA preemption was in fact tied to regula-

tions adopted by the FRA and plainly it is not.

701 F.Supp. at 608.

The lower courts also recognized that Congress did

not alter the scope of §434 following judicial and admin-

istrative applications of §434 to regulations promulgated

by the Secretary pursuant to the HMTA.

17

Congress amended the FRSA and the HMTA in

1980. When it did so, it had been made expressly aware

that the Department of Transportation (“DOT”), the

federal agency that promulgates regulations under the

HMTA, believed that the FRSA preemption provision

applied to regulations relating to the transportation of

hazardous materials by rail:

The preemption provisions of the Hazardous

Materials Transportation Act operate to preempt

any State or local requirement that is “inconsistent”

with the Federal regulation. Unless it is “inconsis-

tent,” a State or local requirement is not pre-

empted. In the case of a State or local restriction

directed at rail transport, there is a second Federal

statutory provision that acts to further limit the legal

authority of States and localities. Under the Railroad

Safety Act, a State or locality is expressly preempted

from any “additional or more stringent” rail safety

requirement unless it is “necessary to eliminate or

reduce a local safety hazard.”

Hazardous Materials Transportation Act Amendments:

Joint Hearing Before the Subcommittee on Surface Trans-

portation and Subcommittee on Aviation of the Committee

on Public Works and Transportation on H.R. 3502, 96th

Cong., Ist Sess. 33 (1979).

At that point, Congress was also presumably aware

of judicial interpretations regarding the interplay of the

FRSA and the HMTA concluding that the preemption

provision in the former applied to regulations issued

pursuant to the latter. Indeed, given that Atchison, To-

peka & Sante Fe Co. v. Ill. Commerce Commission,? supra,

which reaches the same result reached by the lower

3Significantly, the United States intervened on the side of the

plaintiff railroads in Atchison. See, 453 F.Supp. at 922.

18

courts in this case, had been decided three years earlier,

Congress is deemed by law to have been aware of the

Atchison holding when it addressed these statutes in

1980. Florida National Guard v. Federal Labor Relations

Authority, 699 F.2d 1082, 1087 (11th Cir.), cert. denied,

464 U.S. 1007 (1983), citing Albemarle Paper Co. v.

Moody, 422 U.S. 405, 414 n.8 (1975) (“Congress is

deemed to know executive and judicial gloss given to

certain language and thus adopts the existing interpreta-

tion unless it affirmatively acts to change the mean-

ing...) See also, Cannon v. University of Chicago 441

U.S. 677, 696-97 (1979): St. Regis Mohawk Tribe, New

York v. Brock 769 F.2d 37, 50 (2d Cir. 1985), cert. denied,

476 U.S. 1140 (1986).

As precedent from this Court dictates, Congress’

failure to amend the FRSA or HMTA preemption provi-

sions in response to cither the Atchison holding or the

DOT’s advice regarding the construction of those provi-

sions, or to in any way rebut or reject the judicial and

administrative interpretations given to the interrelation-

ship between those Acts, must be read as acceptance of

those interpretations. See CSX Transportation, Inc. v.

Public Utilities Commission of Ohio, 701 F.Supp. at 615-

16.

Moreover, not only did Congress not act to change

the FRSA or the HMTA in response to these judicial and

administrative interpretations, but, instead, it actually

reaffirmed them. In 1980, Congress added a “whistle

blower” provision to the FRSA, and included in that

provision a definition of “railroad safety law” that ex-

pressly included the HMTA. See, 45 U.S.C. §441(e). The

statutes listed in that section (the HMTA and those laws

under the jurisdiction of the Secretary pursuant to 49

U.S.C. §1655(1), (2) and 6(A)) are the same as those

included in Appendix B to the 1970 legislative history

19

and referred to there as the laws relating to railroad

safety. The only difference is that the HMTA is substi-

tuted for its predecessor, the Explosives Act. See, 901

F.2d at 500; 701 F.Supp. at 613. Thus, Congress’ defini-

tion of railroad safety laws in 1980 was precisely the

same as in 1970 and plainly included laws governing the

transportation of hazardous materials by rail.

Thus, the lower court decisions which the PUCO

asks this Court to review are not only consistent with all

other judicial decisions on the issue and with Congress’

desire to further the goal of nationally uniform regula-

tion of rail safety, they are also consistent with the most

recent administrative and legislative pronouncements

on the precise question put to those courts.

C. THE SIXTH CIRCUIT’S DECISION DOES

NOT CONFLICT WITH THE APPLICABLE

DECISIONS OF THIS COURT

1. The Supreme Court Pronouncements to Which

the PUCO Refers are Neither Controlling Nor

Relevant

The PUCO contends that this Court must grant

certiorari to review the Sixth Circuit’s decision in this

case because that decision is inconsistent with two

earlier decisions of this Court on the issue of federal

preemption: Louisiana Public Service Commission v. FCC,

476 U.S. 355 (1986) and Pacific Gas and Electric Co. v.

State Energy Resources Conservation & Development

Comm’n., 461 U.S. 190 (1983). Not only does the Sixth

Circuit decision in this case not create a conflict with

these precedents which is worthy of this Court’s review,

but these precedents are not even relevant to the pre-

emption analysis at issue in this case.

The Louisiana case involved the interpretation of a

single statute in which exclusive jurisdiction over the

20

regulation of interstate wire and radio communications

had been granted to the federal government and exclu-

sive jurisdiction over intrastate communications of that

nature had been granted to the states. When the Fed-

eral Communications Commission dictated depreciation

methods for telephone plants and equipment, the ques-

tion arose whether that act preempted the states from

dictating the use of alternative methods of depreciation

in connection with the establishment of intrastate tele-

phone rates. This Court concluded that, in the face of

the explicit and separate grants of authority to the

respective spheres of government within the single stat-

ute at issue, the mere fact that a federal agency had

chosen to act on an issue first could not forever prohibit

the states from acting in the area of authority granted to

them.

That case is simply not this one. First, it does not

involve, as here, the interpretation and determination of

the interplay between two competing federal preemp-

tion provisions addressing overlapping subject matters.

Second, it does not involve, as here, a situation in which

the federal government has been granted broad regula-

tory authority over an entire subject matter —

i.e., railroad safety,” and where the “reservation of au-

thority” to the states, to the limited extent it occurs, not

only expressly overlaps with that already granted to the

federal government (as opposed to being reserved in a

separate sphere of authority), but also was made in the

face of Congressional recognition that that authority

would be limited whenever and to the extent it con-

flicted with the broad federal authority outlined in the

FRSA.

The Pacific Gas case is equally inapposite. There,

the Court again was faced with grants of authority

within a single statute. The federal government was

21

granted the authority to build nuclear power plants and

exclusive authority to regulate their safety. The power

to promulgate non-safety regulations for such facilities

was expressly reserved to the states in that same enact-

ment. The question presented was whether the state

could regulate nuclear facilities for economic purposes

(as opposed to safety purposes) in a manner which

imposed requirements which were more stringent than

those the federal government had seen fit to implement.

The Court concluded that the single statutory scheme of

dual regulation at issue there had explicitly permitted

state regulation in the sphere in which the state sought

to regulate, no matter what the applicable federal

agency had done under its independent grant of

authority.

Again, that is not this case. The issue here is the

interplay between two separate federal preemption provi-

sions, including one that preempts state regulation over

an entire subject area, and a consciously and strictly

limited non-exclusive role for the states. The issues are

different. As both of the lower courts and every other

court to consider the issue have decided, the results

should differ as well.

2. The Lower Court Decisions Were Dictated By

This Court’s Admonitions Regarding the

Proper Approach to the Reconciliation of Two

Potentially Conflicting Federal Statutes

Both of the lower courts recognized that when

hazardous materials are transported by rail, that act

logically is governed both by the FRSA, an act address-

ing itself to all aspects of rail transportation, and the

HMTA, an act addressing itself to all forms of hazardous

materials transportation. See, CSX Transportation, Inc. v.

Public Utilities Commission of Ohio, 901 F.2d at 501. Both

22

courts also recognized, however, that, when faced with

overlapping and even potentially conflicting statutes, a

situation not present in either the Louisiana or Pacific

Gas case, their role is not to choose one statute over the

other or assume that an implied repeal of the earlier one

was intended, but to seek to harmonize the two and

attempt to give effect to any overriding Congressional

intent.

. As noted by the Ninth Circuit in adhering to clear

Supreme Court pronouncements on the issue,

|W]hen two statutes are capable of co-existence, it

is the duty of the courts . . . to regard each as

effective. Radzanower v. Touche Ross & Co., 426 U.S.

148, 155, 96 S.Ct. 1989, 1993, 48 L.Ed.2d 540 (1975),

quoting Morton v. Mancari, 417 U.S. 535, 551, 94

S.Ct. 2472, 41 L.Ed. 290 (1974).

Get Oil Out!, Inc. v. Exxon Corp., 586 F.2d 726, 729 (9th

Cir.1978). (Emphasis added).

This Court recently applied these principles in

Ruckelshaus v. Monsanto, 476 U.S. 986 (1984). There, the

Court was faced with an alleged conflict between the

Tucker Act, 28 U.S.C. §1491, and the later Federal

Insecticide, Fungicide and Rodenticide Act (“FIRFA”),

7 U.S.C. §136, et. seg. FIRFA limited the remedy for the

taking of a property interest under that Act to resort to

the Environmental Protection Agency. Despite this

clear limitation, the Supreme Court applied the princi-

ples articulated above, and concluded that FIRFA

should not be read to have impliedly repealed the

Tucker Act’s grant of jurisdiction to the district courts

with respect to “taking” claims, especially in light of

Congress’ overriding concern with providing compensa-

tion to victims of a governmental taking. Hence, even

though the statute was not written that way, this Court

———

23

concluded that FIRFA’s remedy provision was to be

interpreted as a requirement that administrative reme-

dies be exhausted prior to resort to a Tucker Act claim.

Applying these principles to the instant case, the

district court concluded that:

the most logical way to resolve any conflict is to

give effect to the specific preemption language of

the FRSA (which by its literal language applies to

all rail safety regulations adopted by the Secretary)

while applying the more liberal preemption stan-

dard of the HMTA to regulations adopted with

respect to other modes of transportation.

CSX Transportation, Inc. v. The Public Utilities Commis-

sion of Ohio, 701 F.Supp. at 614. The Sixth Circuit

similarly concluded:

We agree with the PUCO that our preemption

analysis “is also to be tempered by the conviction

that the proper approach is to reconcile ‘the opera-

tion of both statutory schemes with one another

rather than holding one completely ousted’.”” Mer-

rill Lynch v. Ware, 414 U.S. 117, 127 (1973), quoting

Silver v. New York Stock Exchange, 373 U.S. 341, 357

(1963) (citations omitted). However, we do not

agree with the PUCO’s interpretation of this lan-

guage in this case. A failure to follow the preemp-

tion provision of the HMTA in no respect ousts the

HMTA. 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 stat-

utes. The national character of railroad regulation

and the need for regulation of hazardous materials

transportation on an intermodal basis are both

respected.

24

CSX Transportation, Inc. v. Public Utilities Commission of

Ohio, 901 F.2d at 502-03. These are the obvious and

correct conclusions in the circumstances presented.

In passing the FRSA, Congress’ overriding objective

was to promote national uniformity in the regulation of

all areas of rail safety. As the lower courts concluded,

this fact is evidenced both by the legislative history of

the 1970 Act and by the structure of the FRSA itself, and

has been reaffirmed every time Congress has addressed

the issue since 1970.

The lower courts rightly sought to protect these

legislative objectives by preserving the statutory frame-

work which was carefully designed to further them. For

the lower courts to have done otherwise would have

been contrary to Congress’ unambiguously stated con-

clusion that it did “not believe that safety in the nation’s

railroads would be advanced sufficiently by subjecting

the national rail system to a variety of enforcement in 50

different judicial and administrative systems.” H.R. Rep.

No. 1194, 91st Cong. 2d Sess.

At the same time, the lower courts’ holdings leave

wholly intact the central objectives of the HMTA. As

the PUCO itself contends, the HMTA was designed to

consolidate the power to promulgate regulations relat-

ing to the transportation of hazardous materials in the

Secretary of Transportation. In so doing, national uni-

formity in regulation was also an objective of the

HMTA. Congress intended nationally uniform regula-

tions to control in this area in order to “preclude a

multiplicity of state and local regulations and the poten-

tial for varying as well as conflicting regulations in the

area of hazardous materials transportation.” S. Rep. No.

1192, 93rd Cong., 2d Sess. 37 (1974). The lower courts’

decisions do no damage to these objectives. There is

nothing in the HMTA or its legislative history that

25

suggests that one of Congress’ considered purposes in

enacting the HMTA was to grant the states full authority

to enforce regulations relating to the transportation of

hazardous materials by rail. The HMTA’s preemption

provision, in sharp contrast to that of the FRSA, was the

subject of essentially no congressional discussion. The

breadth of the HMTA preemption provision is not the

result of a plainly expressed congressional intent to

unravel the careful statutory scheme it had created in

the FRSA and, as the PUCO contends, to create a “dual”

federal/state system of regulation and enforcement.

Rather, the breadth of the HMTA provision is the result

of the fact that the HMTA is applicable to so many

different areas of commerce and that Congress -fully

anticipated that its effect would be tempered by any

stricter, mode-specific preemption provisions already in

place.

Where the decisions for which review is sought not

only do not conflict with any other decision of this

Court or with any decision of any other court, but

actually are based upon and adhered to clear guidelines

for analysis set down by this Court, there is simply no

need for this Court to reconsider them.

26

CONCLUSION

Petitioner has failed to show any conflict between

the decision of the Sixth Circuit Court of Appeals and

prior decisions of this Court or of any other federal

court. Petitioner has also failed to show any other basis

for this Court to hear this case. The Sixth Circuit's

decision is consistent with all relevant expressions of

Congressional intent and with the guidelines for deci-

sionmaking delineated by this Court. The Sixth Circuit's

decision is and should remain unassailable. Accordingly,

Respondents respectfully request that the Petition for a

Writ of Certiorari be denied.

Of Counsel:

Patrick J. SMITH

RoBert W. TRAFFORD

KATHLEEN MCDONALD

O'MALLEY

JANET J. HENRY

PORTER, WRIGHT,

MORRIS & ARTHUR

41 South High Street

Columbus, Ohio 43215

A. GAYLE JORDAN

Norfolk & Western Railway

Co.

One Commercial Place

Norfolk, Virginia 23510

Respectfully submitted,

Samuel H. Porter

Counsel of Record

PORTER, WRIGHT,

MORRIS & ARTHUR

41 South High Street

Columbus, Ohio 43215

(614) 227-2000

Attorneys for Respondents

SALLY J. KIRCHER

CSX Transportation, Inc.

500 Water Street

Jacksonville, Florida 32202

JANET SCAGNELLI

Consolidated Rai!

Corporation

1138 Six Penn Center

Philadelphia, Pennsylvania

19103

Mary P. SCLAWY

Grand Trunk Western

Railroad Co.

1333 Brewery Park

Detroit, Michigan 48207

27

CERTIFICATE OF SERVICE

I, Samuel H. Porter, a member of the Bar of this

Court and counsel for respondents herein, hereby cer-

tify that on the 29th day of August, 1990, three copies of

the Brief in Opposition to the Petition for Writ of

Certiorari to The United States Court of Appeals for

The Sixth Circuit were served, postage prepaid, upon

Anthony J. Celebrezze, Jr., Attorney General of Ohio,

Robert S, Tongren, Assistant Attorney General, Counsel

of Record, James B. Gainer, Assistant Attorney General,

Counsel for Petitioner, at the Office of the Ohio Attor- |

ney General, Public Utilities Section, 180 East Broad

Street, Columbus, Ohio 43266-0573.

Samuel H. Porter

(Counsel of Record for

Respondents)