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

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Iu the Supreme Court of the

OCTOBER TERM, 1990

PUBLIC UTILITIES COMMISSION OF OHIO, ET AL.,

PETITIONERS

' ws

CSX TRANSPORTATION, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

JOHN G. ROBERTS, JR.

Deputy Solicitor General

MICHAEL R. DREEBEN

Assistant to the Solicitor General

LEONARD SCHAITMAN

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-8441

_—-

——

QUESTION PRESENTED

Whether Ohio statutes and regulations governing the

transportation of hazardous materials by rail are pre-

empted by the Federal Railroad Safety Act of 1970,

45 U.S.C. 434, notwithstanding their purported com-

patibility with the preemption provision of the Hazard-

ous Materials Transportation Act, 49 U.S.C. App. 1811

(1988).

(1)

TABLE OF CONTENTS

Page

I od iiciceienemadeomabnibies scieeheesbenleldinedetaiccaiidhaininstiinibaieaesiaiincit 1

NRE gree oC ea ee i Re 5

TERA oa RE SA cr Re Re ae 18

TABLE OF AUTHORITIES

Cases:

Atchison T. & S.F. Ry. vy. Illinois Commerce

Comm'n, 453 F. Supp. 920 (N.D. Ill. 1977)........ 10

FMC Corp. V. Holliday, 111 S. Ct. 403 (1990) ...... 6

General Motors Corp. v. United States, 110 S. Ct.

I 11

Jones V. Rath Packing Co., 430 U.S. 519 (1977)... 6

Louisiana Public Service Comm’n v. FCC, 476 U.S.

ESET ESE SSS ERS OE, Rl aa a 5, 15

Milwaukee vy. Illinois, 451 U.S. 304 (1981) ...........

Missouri Pac. R.R.:v. Railroad Comm'n, 671 F.

Supp. 466 (W.D,. Tex. 1987), aff’d, 850 F.2d

Nn ninininmmpaiotneaes 10

Morton Vv. Mancari, 417 U.S. 535 (1974) -2022020........ 15

Pacific Gas & Elec. Co. y. State Energy Resources

Conservation & Dev. Comm’n, 461 U.S. 190

SEER SEES SS ee 5, 15

Russello vy. United States, 464 U.S. 16 (1983) ........ 11

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

NRE CRE a a = 14

Traynor Vv. Turnage, 485 U.S. 535 (1988).............. 15

Statutes and regulations:

Act of June 25, 1948, ch. 645, 62 Stat. 738-740,

IAI REESE a 8

Atomic Energy Act of 1954, ch. 1073, 68 Stat.

| eee 15

Department of Transportation Act, 49 U.S.C. 1651

et seq.:

19 UB 1658 (Oe) (4) C1GTO) nnccececcccccceceecececeees 8

19 U.S.C. 1655(f) (3) (A) (Supp. IV 1974)... 2,9

49 U.S.C. 1655 (f) (3) (B) (Supp. 1V 1974) ... _ 2,9

(111)

Statutes and regulation—Continued : Page

Explosives and Other Dangerous Articles Act, 18

U.S.C. 831-835 (repealed) . sel Ia a aaa 8

Federal Railroad Safety Act of 1970, 45 U.S.C. 421

Ob GEG caccscscssscsscesssecsasssssesescssssssincnppinenemsecssassssiasssssses 1

15 USC 421. Yel get a

5 U.S.C. 434 .. peaiceesl 1, 2,8, 4, 5, 6, 7, 12, 13, 16

‘s U.S.C. 435 .. sslehimeeceeniaeniounidiaes

45 U.S.C. 435 (a) a 206 (a) ). sceumananeinnianininaaaadal 10,17

REE SITES RE EA aOR ES EF 13

I ida 10

45 U.S.C. 487 (c) ........ SSRIS ERD Ea tied A Re OO ED 11

CEES aE OE 13

Federal Railroad Safety Authorization Act of

1980, Pub. L. No. 96-423, 94 Stat. 1811 _............ 12

Ce ae 13

Hazardous Materials Transportation Uniform

Safety Act of 1990, Pub. L. No. 101-615 (Nov.

16, 1990) :

Iie ieee tibiae ens cdi gcc intedgieninalinaion 3, 13

TS ES Aa oe sew Cope eee Benoa Ne 3,13

elite alias cecrdhditietcpelciineclgupdiecieteanstiatihhaileities tale 17

aa istniinienebiaieaienes 16

Hazardous Materials Transportation Act, 49 U.S.C.

FEES SEEDER ES ROE TE ED 2

§ 108, CO UBL. AOD. TOOL oc cceccccccccccsecccssececssecece 2

$ 105, 49 U.S.C. App. 1804 oo .cccccccccccsccscseccccsseccsses 9,14

§ 105(a), 49 U.S.C. App. 1804 (a) _..00000. eee. 2

§ 105 (a) (4), 49 U.S.C. App. 1804 (a) (4) ......... 14

§ 105(b), 49 U.S.C. App. 1804 (b) 14

Pe Be Fie Se 13

§ 112(a), 49 U.S.C. App. 1811 (a) 0... 2,3, 11,14

§ 112(b), 49 U.S.C. App. 1811 (b) 0.0... 2

Pipeline Safety Act of 1979, Pub. L. No. 96-129,

yp OR Se ere 8

Transportation Safety Act of 1974, Pub. L. No. 93-

633, 88 Stat. 2156:

A I BED cc cipennneacancaccenredncansatennnetiote 3

Oe ee I BI So visecttccrmnsceciacenientennnchantions 3

Be | | eee 10

Statutes and regulations—Continued : Page

A9 C.F.R.:

PUR, RTRE GD eiccscovasccencrmccscses sdbahsnicedasabdstanivnaniascian 3

Wg BIG AGO oi cccciccacscenecscsedsccatacarscecnasnsseassetesceeests 2

Pt. 174:

Sections 174.121 74.840 -.cccccscccccccsssccenscseasses 2

Ohio Admin. Code § 4901 :5-1-10 -............----------------- > -

Ohio Rev. Code Ann. (Anderson Supp. 1989) :

Miscellaneous:

120 Cong. Rec. (1974) :

DP. 40,677-40,680 ........----------s---ceeeeeeeeesceeceeeeeeteees 12

PD. 41,409-41 410 occ cece cence eesesce eee ceeeeeeeeeee 12

136 Cong. Rec. $16,857 (daily ed. Oct. 23, 1990) .... 17

136 Cong. Rec. H13,648 (daily ed. Oct. 25, 1990)... 16-17

136 Cong. Rec. (daily ed. Oct. 26, 1990) :

gr GET LOS GNT LTA cccicittcsccsncssssssccscontenssscssescee 16

UT ccs cecesscccesneraatitnceseisoscennnscivcboneasion 3,14

We ET IUD a icecoconesconsnxcopsnsascnepsoosncenencsicuasinnccearen 3,14

Pe SUT 274 2.2... .e2cceensnneseesecesseeseenennnenseesseseneeneees 16

ee 16, 17

H.R. Conf. Rep. No. 1589, 93d Cong., 2d Sess.

(IGT) cvvcccciccccccsccscecensscnncaassictincescésesssssiccessstctaseeieies 11-12

H.R. Rep. No. 1194, 91st Cong., 2d Sess. (1970) .... 2, 7, 8,

9,11

U.R. Rep. No. 1083, 93d Cong., 2d Sess. (1974) .... 12

H.R. Rep. No. 1925, 96th Cong., 2d Sess. (1980) .... 18

H.R. Rep. No. 444, 101st Cong., 2d Sess. (1990) :

Dr crvccitrsvrarseneccrecdaucecrcdscasnannpascaianeneacceanNecbehenss 16

WG Direc scctubepccecdnbntaasdblecassbnteeneercnaesaasTeDeLeerteiee 16

S. Rep. No. 1192, 93d Cong., 2d Sessa 1974) ..2, 8, 9-10, 12

S. Rep. No. 449, 101st Cong., 2d Sess. (1990) .......... 17

In the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-95

PUBLIC UTILITIES COMMISSION OF OHIO, ET AL..,

PETITIONERS

Vv.

CSX TRANSPORTATION, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

This brief is submitted in response to the Court’s order

inviting the Solicitor General to express the views of the

United States.

STATEMENT

1. a. The Federal Railroad Safety Act of 1970

(FRSA), 45 U.S.C. 421 et seq., was enacted “to promote

safety in all areas of railroad operations and to reduce

railroad-related accidents, and to reduce deaths and in-

juries to persons and to reduce damage to property

eaused by accidents involving any -carrier of hazardous

materials.”” 45 U.S.C. 421. In order to ensure that regu-

lations “relating to railroad safety * * * be nationally

uniform to the extent practicable,” FRSA includes a

specific preemption provision, 45 U.S.C. 434, which pro-

vides in pertinent part:

(1)

A State may adopt or continue in force any law, rule,

reculation, order, or standard relating to railroad

safety until such time as the Secretary has adopted

a rule, regulation, order, or standard covering the

subject matter of such State requirement.

Once the Secretary has acted, additional or more strin-

gent State regulation is permitted only where it is “nec-

essary to eliminate or reduce an essentially local safety

hazard,” and is neither incompatible with Federal law

nor unduly burdensome to interstate commerce. 45

U.S.C. 434. See H.R. Rep. No. 1194, 91st Cong., 2d Sess.

19 (1970).

b. The Hazardous Materials Transportation Act

‘HMTA), 49 U.S.C. App. 1801 et seg., was enacted in

1974 “to improve the regulatory and enforcement au-

thority of the Secretary of Transportation to protect the

Nation adequately against the risks to life and property

which are inherent in the transportation of hazardous

materials in commerce.” 49 U.S.C. App. 1801. Dissatis-

fied with “the fragmentation of regulatory power among

the agencies dealing with the different modes of trans-

portation,” S. Rep. No. 1192, 93d Cong., 2d Sess. 8

(1974), Congress consolidated the authority to regulate

hazardous materials transportation in the Secretary of

Transportation, and repealed the previously existing au-

thority to regulate hazardous materials transportation

that had been reposed in the Federal Railroad Adminis-

trator and the Federal Highway Administrator.' Acting

on the authority of the HMTA, the Secretary has issued

extensive regulations governing the transportation and

packaging of hazardous materials in all modes of trans-

portation, see 49 C.F.R. Pts. 171-180, as well as regula-

tions specifically applying to rail transportation, see 49

C.F.R. 174.1-174.840. Pet. App. A5.

The HMTA also addressed the preemption of state law.

The Act originally provided that “any requirement, of

1 See 49 U.S.C. App. 1804/a) (1988); 49 U.S.C. 1655(f) (3) (A)

and (B) (Supp. IV 1974); S. Rep. No. 1192, supra, at 38.

a State or political subdivision thereof, which is incon-

sistent with any requirement set forth in this chapter,

or in a regulation issued under this chapter, is pre-

empted’’; inconsistent requirements would not be pre-

empted, however, if, upon application of the State or

political subdivision to the Secretary of Transportation,

the Secretary determines that the state or local require-

ment affords equal or greater protection than HMTA and

its implementing regulations, and is not an unreasonable

burden on commerce. Pub. L. No. 93-633, $ 112(a) and

(b), 88 Stat. 2161, codified at 49 U.S.C. App. 1811 (a)

and (b) (1988)

As a result, under FRSA a state requirement “relating

to railroad safety” is preempted whenever the Secretary

has issued regulations addressing the same ‘“‘subject mat-

ter.” 45 U.S.C. 434. Under HMTA as originally en-

acted, a state requirement that is consistent with federal

law is not preempted under that statute’s preemption

provision. 49 U.S.C. App. 1811fa) (1988).

2. In 1988, Ohio enacted the Ohio Hazardous Mate-

rials Transportation Act (OHMTA). Pet. App. Al-A2.

OHMTA authorizes the Public Utility Commission of

Ohio (PUCO) to “adopt safety rules governing the trans-

portation * * * of hazardous materials by railroad,”

and provides that such safety rules “shall be consistent

with, and equivalent in scope, coverage, and content to,

the provisions of the [HMTA], as amended, and regula-

tions adopted under it.” Ohio Rev. Code Ann. § 4907.64

(Anderson Supp. 1989). Acting on this authority, PUCO

adopted, as requirements of Ohio law, the regulations

promulgated by the Secretary of Transportation under

HMTA in 49 C.F.R. Pts. 171-179. Ohio Admin. Code

$ 4901:3-1-10. PUCO is authorized to seek enforcement

of these requirements through remedies including civil

2 Congress recently amended the preemption provision of HMTA.

See Hazardous Materials Transportation Uniform Safety Act of

1999, Pub. L. No. 101-615, $8 4, 13, 136 Cong. Ree. S17,265,

$17,269 (daily ed. Oct. 26, 1990), discussed at note 9, infra.

penalty actions. Ohio Rev. Code Ann. § 4905.83 ( Ander-

son Supp. 1989) .*

On September 27, 1988, respondents, four railroads

that engage in rail transportation in Ohio and other

States, filed a complaint against petitioners in the United

States District Court for the Southern District of Ohio,

challenging the validity of OHMTA and its implementing

regulations. Respondents alleged that Ohio’s require-

ments violate the preemption provisions of both FRSA

and HMTA. Respondents also claimed that Ohio’s re-

quirements constitute an unconstitutional burden on

interstate commerce. As relief, respondents sought a

declaratory judgment and an injunction against the en-

forcement of the Ohio statute and PUCO’s administra-

tive regulations. Pet. App. A2, A19.

On cross-motions for summary judgment, the district

court held that the Ohio requirements are preempted by

FRSA, 45 U.S.C. 434, and permanently enjoined their

enforcement. Pet. App. A16-A17. The court explained

that the Ohio regulations constitute laws and regula-

tions “relating to railroad safety,” and apply in an

area of rail safety in which the Secretary of Transporta-

tion has issued federal regulations. Jd. at A5-A9. Rely-

ing on FRSA’s plain language, statutory structure, and

legislative history, the court concluded that 45 U.S.C.

434 preempts Ohio’s regulation of the transportation

of hazardous materials by rail. Pet. App. A7-A9.

3. The court of appeals affirmed. After extensively

reviewing the statutory schemes enacted by FRSA and

HMTA, the court concluded that the Ohio requirements

are covered by FRSA’s preemption provision. Pet.

App. A24. The court rejected petitioners’ contention

that the preemptive effect of FRSA is qualified by

HMTA, explaining that “the purpose of the HMTA was

3 Ohio also enacted legislation authorizing PUCO to adopt safety

rules, that are consistent with federal requirements under HMTA,

governing the highway transportation of hazardous materials.

See Ohio Rev. Code Ann. § 4919.85 (Anderson Supp. 1989).

to consolidate regulation of hazardous material trans-

portation at the Secretarial level, and not to remove such

regulation of hazardous material transportation by rail

from the preemption provision of the FRSA.” Jd. at A23.

The court also, dismissed petitioners’ reliance on

Louisiana Public Service Comm’n v. FCC, 476 U.S. 355

(1986), and Pacific Gas & Elec. Co. v. State Energy

Resources Conservation & Dev. Comm’n, 461 U.S. 190

(1983). In those cases, the court noted, the statutory

schemes in question were found not to preempt state

action because the statutes had expressly reserved a

sphere of action to the States. Pet. App. A25-A26. In

contrast, FRSA does not contain an explicit reservation

of authority to the States; rather, “|t|he federal gov-

ernment clearly has the power to regulate all aspects of

railroad safety.” Jd. at A26.

Finally, the court of appeals agreed with the district

court that applying the FRSA preemption provision to

regulations promulgated by the Secretary under HMTA

is consistent with the purposes of both statutory schemes.

“The national character of railroad regulation and the

need for regulation of hazardous material transporta-

tion on an intermodal basis are both respected.” Pet.

App. A26.

DISCUSSION

In addressing an issue of first impression in the courts

of appeals, the Sixth Circuit correctly held that Ohio’s

satety regulations governing the transportation of haz-

ardous materials by rail are preempted by FRSA. The

preemptive command of FRSA is clear and unequivocal:

unless adopted to meet local safety hazards, state require-

ments “relating to railroad safety” are preempted if the

Secretary has issued regulations on the same “subject

matter.” 45 U.S.C. 434. That is precisely the case here

with respect to Ohio’s adoption, as state requirements,

of the Secretary of Transportation’s regulations relating

to railroad transportation of hazardous materials. Al-

though the Secretary’s regulations were issued under the

authority of HMTA, not FRSA, nothing in the language,

structure, or background of either statutory scheme pre-

vents such regulations from serving as the basis for pre-

emption under FRSA’s broad preemption provision.

The court of appeals’ analysis is also consistent with

this Court’s exposition of the principles relevant to pre-

emption analysis in other statutory contexts. Moreover,

recent congressional amendments to the HMTA and the

FRSA, although not directly addressing the question pre-

sented here, have provided a mechanism for States to

participate in the administration of federal requirements

governing the transportation of hazardous materials by

rail, thereby reducing the practical significance of this

ease. In light of those considerations, the petition for

a writ of certiorari should be denied.

1. The preemption of state law by a federal statute

turns on the intent of Congress. FMC Corp. v. Holliday,

111 S. Ct. 403, 407 (1990). Congress may express its

intention to occupy the field through an explicit provision

that “its enactments alone are to regulate a part of com-

merce’; in that case, a “state law|] regulating that as-

pect of commerce must fall.” Jones v. Rath Packing Co.,

430 U.S. 519, 525 (1977).

FRSA expressly preempts a state requirement “relat-

ing to railroad safety” when the Secretary of Transpor-

tation has issued regulations “covering the subject mat-

ter of such State requirement.” 45 U.S.C. 434. Under

a natural reading of that provision, Ohio’s requirements

are preempted. The text of Ohio’s statute attests to its

purpose of regulating railroad safety in the transporta-

tion of hazardous materials; the statute states that

PUCO may “adopt safety rules governing the transporta-

tion * * * of hazardous materials by railroad.” Ohio

Rev. Code Ann. § 4907.64 (Anderson Supp. 1989). More-

over, the Secretary of Transportation plainly has regula-

tions covering the “subject matter’ of Ohio’s require-

ments; Ohio has assimilated into its own body of law

federal regulations that the Secretary has promulgated

under HMTA.'

To resist the force of FRSA’s language, petitioners

contend that the Secretary’s regulations under HMTA

are not regulations “relating to railroad safety”; there-

fore, petitioners argue, such regulations cannot be used

as the basis for preempting Ohio’s requirements. Pet.

15-27. Instead, petitioners believe that Ohio’s regulations

should be measured exclusively by the standards of

HMTA’s more permissive preemption provision. The

background and structure of FRSA and HMTA refute

those contentions.

a. FRSA was designed to implement a comprehensive

and nationally uniform regulatory system for railroad

safety. Congress provided that once the Secretary of

Transportation has issued regulations in a particular

area of rail safety, state regulation on the same subject

matter is preempted. 45 U.S.C. 434. States are not per-

mitted “to establish Statewide standards superimposed

on national standards covering the same subject matter.”

H.R. Rep. No. 1194, 91st Cong., 2d Sess. 19 (1970).

This all-encompassing preemption provision resulted

from intensive debate on the proper role of the States

in rail safety matters. See Pet. App. A8-A9. In reject-

ing the possibility that States might “adopt all Federal

standards and, * * * enforce them at the State level,”

the House Committee Report explained that “safety in

the Nation’s railroads would [not] be advanced suffi-

ciently by subjecting the national rail system to a variety

of enforcement in 50 different judicial and administra-

tive systems,” and that “such a vital part of our inter-

state commerce as railroads should not be subject to [a]

multiplicity of enforcement by various certifying States

as well as the Federal Government.” H.R. Rep. No. 1194,

supra, at 11, 19. Instead, States were authorized to par-

4 The local-safety-hazards exception, 45 U.S.C. 484, is not avail-

able to Ohio’s requirements, which are explicitly applicable state-

wide. See H.R. Rep. No. 1194, 91st Cong., 2d Sess. 19 (1970).

ticipate in assuring rail safety by assisting the Secretary

of Transportation in investigating the railroad industry's

compliance with federal requirements. 45 U.S.C. 435.

See H.R. Rep. No. 1194, supra, at 19-29.

Congress clearly envisioned that regulations pertaining

to the safe transportation of hazardous materials by rail

would be subject to FRSA’s preemption provision. When

enacting FRSA, Congress was acutely aware that a ma-

jor rail-safety issue was the transportation cf hazardous

materials. Referring to testimony at committee hearings,

the House Report described several railroad catastrophes

as providing “graphic evidence * * * of the potential

for destruction which these hazardous materials accidents

have for the public and railroad employees.” See H.R.

Rep. No. 1194, supra, at 9. In recognition of that poten-

tial, the declaration of congressional purpose in FRSA

states that the reduction of mortality, injury, and prop-

erty damage “caused by accidents involving anv carrier

of hazardous materials” is a central goal of the Act.

45 U.S.C. 421.

The legislative history confirms that Congress con-

sidered the Secretary’s existing power to regulate the

transportation of hazardous materials to be part of his

arsenal of authority for protecting railroad safety. The

House Committee Report, in an appendix collecting prior

laws that had addressed specific rai! safety needs, listed

the Explosives and Other Dangerous Articles Act (Ex-

plosives Act), 18 U.S.C. 831-835 (repealed), which, at the

time, provided the Secretary with certain authority to

regulate the transportation of dangerous materials.*

5 The Explosives Act originated in 1909 legislation, see S. Rep.

No. 1192, supra, at 6, and, as amended, vested authority in the

Interstate Commerce Commission to regulate the transportation

of explosives and other articles. Act of June 25, 1948, ch. 645,

62 Stat. 738-740, repealed, Pipeline Safety Act of 1979, Pub. L.

No. 96-129, § 216(b), 93 Stat. 1015. When Congress created the

Department of Transportation in 1966, it transferred the pre-

existing regulatory authority under the Explosives Act to the Secre-

tary of Transportation. 49 U.S.C. 1655(e) (4) (1970). By statute,

H.R. Rep. No. 1194, supra, at 7, 61-65. Moreover, when

Congress considered the legislation that became the

HMTA in 1974, the Explosives Act was recognized to be

one of HMTA’s precursors. See S. Rep. No. 1192, 93d

Cong., 2d Sess. 6 (1974).

Against that background, it is clear that Congress did

not intend to limit the preemptive scope of FRSA to

regulations enacted under powers given to the Secretary

in FRSA alone; rather, it contemplated that all of the

Secretary’s regulations relating to rail safety, including

those specifically dealing with hazardous materials, would

give rise to nationally uniform standards. Although Con-

gress has since substantially revised the regulatory

scheme governing the transportation of hazardous mate-

rials, it has never amended the preemption provision of

FRSA or evinced an intent to depart from the policy of

uniform regulation of rail safety matters underlying

that provision.

b. Contrary to petitioner’s contention (Pet. 14-18),

the requirement introduced in 1974 by HMTA—that the

Secretary, rather than individual agency components

within the Department, shall regulate the transportation

of hazardous materials—does not affect the scope of

FRSA preemption. HMTA was intended to resolve prob-

lems flowing from the dispersion of authority among sev-

eral agencies to regulate the transportation of hazardous

materials. S. Rep. No. 1192, supra, at 8. HMTA there-

fore provided the Secretary of Transportation with new

authority to regulate the transportation of hazardous

materials, see 49 U.S.C. App. 1804 (1988), and gave the

Secretary “a broad mandate so that comprehensive regu-

lations can be issued as the need arises covering what-

ever facet of * * * transportation requires regulation.”

S. Rep. No. 1192, supra, at 32. At the same time, Con-

the modal administrations within the Department were given the

authority to promulgate regulations under the Explosives Act.

49 U.S.C. 1655(f)(3)(A) and (B) (Supp. IV 1974). See Pet.

App. A20-A21.

gress amended the Department of Transportation Act to

“exempt from the regulatory authority of the Federal

Railroad Administrator and the Federal Highway Ad-

ministrator the safety responsibility as to the transporta-

tion of hazardous materials by railroad carrier and

motor carrier.” Jd. at 38. The amendment was designed

to “consolidate in the Secretary of Transportation the

authority needed to regulate the transportation of haz-

ardous materials.” Jbid.; see Transportation Safety Act

of 1974, Pub. L. No. 93-633, § 113(e), 88 Stat. 2163.

The effect of HMTA was thus to confer upon the Sec-

retary, rather than the Federal Railroad Administrator,

the authority to issue regulations dealing with the trans-

portation of hazardous materials by railroad. But, as the

court of appeals recognized, that change in regulatory

authority did not alter the fact that the Secretary’s

regulations continue to have preemptive force under

FRSA. Pet. App. A24. Nor does the redistribution of

power within the Department of Transportation impair

the character of hazardous materials regulations relating

to railroads as rail safety regulations for purposes of

FRSA. See Atchison, T. & S.F. Ry. v. Illinois Commerce

Comm’n, 453 F. Supp. 920, 924 (N.D. Ill. 1977); Mis-

sourt Pac. R.R. v. Railroad Comm’n, 671 F. Supp. 466,

482 (W.D. Tex. 1987), aff'd, 850 F.2d 264 (5th Cir.

1988) (per curiam).

The structure of the statute further dispels any in-

ference that FRSA’s preemption provision is intended to

apply only to regulations the Secretary has promulgated

under FRSA’s authority. Congress expressly limited the

scope of certain other provisions of FRSA to regulations

issued under that statute; the absence of a comparable

restriction in the preemption provision is telling.® See

® See, e.g., 45 U.S.C. 435(a) (1988) (allowing State participa-

tion in investigative and surveillance activities in connection with

regulations “prescribed by the Secretary under this subchapter’) ;

45 U.S.C. 437(a) (“The Secretary is further authorized to issue

orders directing compliance with this chapter or with any railroad

General Motors Corp. v. United States, 110 S. Ct. 2528,

2532 (1990); Russello v. United States, 464 U.S. 16, 23

(1983).

The limitations that petitioners would place on FRSA’s

preemption provision are also inconsistent with FRSA’s

guiding purpose. When Congress enacted FRSA, it rec-

ognized that the Secretary had diverse sources of statu-

tory authority, enacted over many years, with which to

address rail safety issues, and it determined not to alter

those sources of authority. Accordingly, in order to

achieve a nationally uniform regime for rail safety, pre-

emption had to apply to regulations issued, not only

under the new authority provided by FRSA, but also

under the Secretary’s preexisting statutory authority;

otherwise, the desired uniformity could not be attained.

Under petitioners’ approach, however, States could wield

independent enforcement authority over certain rail

safety issues not regulated specifically by FRSA—pre-

cisely the situation that Congress was determined to

avoid. See H.R. Rep. No. 1194, supra, at 11-12.

Although Congress enacted a preemption framework

in HMTA that is tolerant of consistent state regulation,

that statute does not provide that the preemptive effect

of the Secretary’s regulations under HMTA would be

governed solely by its—and not by FRSA’s—preemption

provision. See 49 U.S.C. App. 1811(a) (1988). And the

legislative history affords no hint that Congress intended

to make inroads in the strong policy of national uni-

formity in railroad safety regulation so recently ex-

pressed in FRSA.’

safety rule, regulation, order, or standard issued under this sub-

chapter.”); 45 U.S.C. 487(c) (“All orders, rules, regulations.

standards, and requirements in foree, or prescribed or issued by

the Secretary under this subchapter * * * shall have the same

force and effect as a statute for purposes of the application of

sections 53 and 54 of this title * * *."),

*The preemption provisions of the HMTA derived from the Sen-

ate bill. See H.R. Conf. Rep. No. 1589, 93d Cong., 2d Sess. 25

Petitioners nevertheless contend (Pet. 18-27) that

FRSA preemption applies only to “laws * * * relating

to railroad safety,” and that Congress has expressly

defined that phrase to exclude the HMTA. As an initial

matter, we note that the phrase “relating railroad

safety” as used in 45 U.S.C. 434 describes the type of

State requirements that are preempted, not the type of

federal requirements that accomplish the preemption.

Here, there can be no doubt that Ohio’s requirements

relate to railroad safety; that is the precise function

ascribed to them on the face of Ohio’s statute.

In any event, petitioners are incorrect in claiming that

Congress has defined the phrase “relating to railroad

safety” to exclude the HMTA for purposes of FRSA’s

preemption provision. When FRSA was enacted, Con-

gress plainly considered the Fxplosives Act, one of

HMTA’s precursors, to be a law related to railroad

safety: the same characterization applies to HMTA itself.

See pp. 8-9, supra. Petitioners engage in a misguided

effort (Pet. 18-27) to weave a variety of provisions deal-

ing with some aspect of railroad safety (particularly

those enacted in the Federal Railrcad Safety Authoriza-

tion Act of 1980, Pub. L. No. 96-423, 94 Stat. 1811),

into a general definition of law “relating to railroad

(1974). The Senate Report “endorse!d] the principle of Federal

preemption in order to preclude a multiplicity of State and local

regulations and the potential fer varying as well as conflicting

regulations in the area of hazardous materials transportation”;

a limited exception from this principle was permitted for state

legislation, approved by the Secretary, that is essentially designed

to deal with “exceptional circumstances” requiring “immediate

action to secure more stringent regulations.” S. Rep. No. 1192,

supra, at 37-38. Neither the Senate nor the House Committee

Reports discussed the interaction between the HMTA and the

FRSA preemption provisions. see ihid.; H.R. Rep. No. 1083, 98d

Cong., 2d Sess. (1974), nor did the floor debate on the bill re-

ported by the Conference Committee touch on that issue. See 120

Cong. Rec. 40,677-40,680 (1974); 120 Cong. Rec. 41,409-41,410

(1974).

safety.” * The answer to that argument, however, is that

Congress has never provided a definition of that phrase

that applies to 45 U.S.C. 434, and petitioners’ invention

of such a definition is hardly compelled by a need, for

example, to lend coherence to operation of the FRSA.

On the contrary, a preemption provision covering all laws

relating to railroad safety, construed broadly, is perfectly

compatible with more specific definitions of railroad

safety laws for other purposes.

ce. The conclusion that FRSA preempts Ohio law in

this case does not conflict with HMTA. Pet. 27-29.

HMTA, as originally enacted, did not affirmatively pre-

serve the validity of state requirements that are consist-

ent with federal requirements relating to hazardous ma-

terials transportation. Rather, HMTA’s preemption pro-

vision simply left such consistent state requirements not

preempted by HMTA. 49 U.S.C. App. 1811 (1988).°

‘For example, petitioners note (Pet. 20-21) that in expanding

the opportunity for States to participate in the railroad safety

inspection program created by FRSA, Congress did not authorize

state participation in safety programs carried out under the author-

ity of HMTA because that statute was thought not to relate exclu-

sively to rail safety issues. See $4(a), 94 Stat. 1812, adding 45

USC. 485(¢). But there is no inconsistency in both excluding

hazardous materials regulations from the state-participation pro-

gram, and preempting independent State requirements relating to

hazardous material transportation by rail. (See also p. 17, infra,

with respect to Congress’s recent amendment to 45 U.S.C. 425 to

expand the state-participation program.) Equally unavailing is

netitioners’ reliance (Pet. 24) on a specific definition of the term

“Federal railroad safety laws” to include FRSA, HMTA, and other

laws for purposes of a provision affording protection to whistle

blowers complaining of violations of railroad safety laws. 45

USC. 411(e). That Congress provided a specific definition in

that context in 1980 does not signify an intention to modify the

scope of FRSA’s preemption provision, which was enacted a decade

earlier. See H.R. Rep. No. 1025, 96th Cong., 2d Sess. 19 (1980).

®The same is true of HMTA’s amended preemption provisions

enacted in the Hazardous Materials Transportation Uniform Safety

Act of 1990, Pub. L. No. 101-615, S$ 4, 18, 186 Cong. Rec. 817,265,

$17,269 (daily ed. Oct. 26, 1990). The amended Section 105 of

The provision simply does not speak to the effect that

other laws might have on state requirements, Cf. Mi-

waukee V. Miinois, 452 U.S. 304, 329 n.22. (1981)

(“There is nothing unusual about Congress enacting a

particular provision, and tak’ng care that this enactment

by itself not disturb other remedies, without considering

whether the rest of the Act does so or what other

remedies may be available.” . ;

Nor is HMTA’s preemption provision nullified by com-

plementing it with FRSA’s. Under HMTA, state regula-

tion of hazardous-materials transportation by other

modes than railroad can take place, if consistent with

federal requirements.” Construing both FRSA and

HMTA to apply to state requirements applicable to rail-

roads thus serves the goal of reconciling “the operation

of both statutory schemes with one another rather than

holding one completely ousted.” Si/ver V. New York

Stock Exchange, 373 U.S. 341, 357 (1963). In contrast,

petitioners’ construction of the statutes would work a

partial implied repeal of the FRSA preemption provi-

sion. Petitioners have not made the difficult showing

HMTA, to be codified at 49 U.S.C. App. 1804, provides a specific

list of subject matters (not including the transportation of hazard-

ous materials by rail), on which the States, political subdivisions,

or Indian Tribes may maintain regulations that are substantively

the same as federal regulations. 186 Cong. Rec. $17,265 (daily ed.

Oct. 26, 1990). The amended Section 112(a) of HMTA, to be codi-

fed at 49 U.S.C. App. 1811(a), provides for preemption of a re-

quirement of a State, political subdivision, or Indian Tribe where

(1) compliance with such a requirement and federal requirements

is not possible; (2) compliance with a requirement obstructs the

implementation of federal hazardous materials regulations; or (3)

preemption is accomplished under Section 1@5(a) (4) or 105¢b).

The Secretary and the courts may det..mine whether a requirement

is preempted; the Secretary, under criteria similar to existing law,

may also determine to waive preemption, subject to judicial review.

136 Cong. Rec. $17,269 (daily ed. Oct. 26, 1990).

10 Indeed. Ohio has taken advantage of that provision with

respect to highway transportation, See note 3, supra.

necessary to justify that disfavored result. Cf. Morton

Vv. Mancari, 417 U.S. 585, 549-551 (1974); Traynor v.

Turnage, 485 U.S. 585, 547-548 (1988).

2. We do not agree with petitioners’ submission ( Pet.

7-14) that the court of appeals’ holding conflicts with

this Court’s decisions in’ Lowisiana Public Service

Comm’n Vv. FCC, 476 US. 355 (1986), or Pacific Gas &

Elec. Co. Vv. State Energy Resources Conservation & Dev.

Comm’n, 461 U.S. 190 (1983).

In Louisiana Public Service Comm'n, the Court con-

sidered “a system of dual state and federal regulation

over telephone service,” 476 U.S. at 360, in which the

FCC enjoyed exclusive authority over interstate telephone

service, while the States retained jurisdiction over intra-

state service. The Court concluded that a federally pre-

scribed method for depreciation of telephone plant did

not preempt inconsistent state regulation of depreciation

methods. In so holding, the Court stressed the fact that

the FCC’s enabling statute contained a jurisdictional

limitation intended to “fence[] off” the FCC from regu-

lating intrastate service, thereby preserving a state role.

Id, at 369-370. No comparable jurisdictional boundary,

purporting to constrain federal authority, exists with

respect to rail safety regulation; rather, once the Secre-

tary has acted, his regulations preempt the field.

In Pacific Gas & Elec., the Court held that California’s

requirements addressing the economic problems of long-

term disposal of nuclear waste from nuclear reactors

were not preempted by the Atomic Energy Act of 1954,

ch. 1078, 68 Stat. 919, as amended, 42 U.S.C. 2011 ef

seq. The Court relied on the fact that the purpose of

the Atomic Energy Act is to regulate safety issues in

nuclear power, 461 U.S. at 212, without displacing the

traditional authority exercised by the States over the

economic considerations in utility regulation. Jd. at 205-

212. Significantly, no provision at issue in Pacific Gas &

Elec. specifically ousted the States from playing their

traditional regulatory role. In FRSA, however, Congress

carefully addressed the role of the States with respect

to rail safety, and determined that the need for a na-

tionally uniform regulatory and enforcement system was

paramount,

3. Finally, the practical significance of the Sixth Cir-

euit’s holding has been diminished by recent congres-

sional action in amending the FRSA and the HMTA.

On November 16, 1990, the President signed into law

the Hazardous Materials Transportation Uniform Safety

Act of 1990 (Safety Act), Pub. L. No. 101-615, 136

Cong. Ree. S17,264-S17,274 ‘daily ed. Oct. 26, 1990).

The Safety Act represents the first major amendment of

the HMTA since its enactment and emerged from “a

long and comprehensive multiyear reevaluation” of that

statute’s operation. 136 Cong. Ree. S17,274 (remarks

of Sen. Exon).

The House Energy and Commerce Committee reported

a bill that would have expressly rejected the interpreta-

tion of the FRSA reached by the district court in this

ease, See H.R. Rep. No. 444, 101st Cong., 2d Sess. Pt. 1,

at 53-54 (1990)... The House proposal, however, was

not enacted. As a supporter of the House proposal ex-

plained, “an amendment permitting State enforcement

* * * would doom any hazardous materials transporta-

tion legislation this Congress.” 186 Cong. Ree. $17,276

(daily ed. Oct. 26, 1990) (remarks of Sen. Breaux).

Although the Safety Act was not intended to affect the

merits of the legal issue involved in this case,"? Con-

11 The report on a competing bill produced by the House Public

Works and Transportation Committee did not directly discuss this

issue, See H.R. Rep. No. 444, 10%st Cong. 2d Sess. Pt. 2 (1990).

12 Section 30 of the Safety Act states: “Nothing in this Act,

including the amendments made by this Act, shall be construed

to alter, amend, modify, or othervise affect the scope of section

205 of the Federal Railroad Safety Act of 1970 [45 U.S.C. 434).”

126 Cong. Ree. S17,274 (daily ed. Oct. 26, 1990). Legislators in

both chambers indicated their understanding that the Safety Act

would not affect the legal issues in the pending litigation over the

scope of FRSA preemption. See 136 Cong. Ree. H13,648 (daily ed.

gress’s express authorization of state participation in the

rail safety inspection program with respect to hazardous

materials transportation has considerably lessened the

practical significance of the court of appeals’ holding.

Section 28 of the Safety Act, 136 Cong. Ree. 817,274

(daily ed. Oct. 26, 1990), amends Section 206 (a) of FRSA,

45 U.S.C. 435(a), to “expand the State participation pro-

gram * * * to encompass hazardous materials reguls-

tions promulgated by DOT pursuant to HMTA,” such

that States may participate with respect to “all areas of

railroad safety.” S. Rep. No. 449, 10ist Cong., 2d Sess.

30 (1990)."° The provision leaves intact the Secretary’s

“exclusive authority to assess penalties and to request

injunctive relief,” but enables a State to apply to a dis-

trict court for assessment and collection of a civil penalty

if federal officials do not act within 60 days after receiv-

ing notification of a violation from a participating State

agency. The amendment thus “close/s] a loophole in eur

rent law which limits the participation program to gen-

eral rail safety violations but does not include [hazardous

materials] violations.” Jbid. See also 136 Cong. Ree.

S16,867 (daily ed. Oct. 23, 1990) (yemarks of Sen.

Exon) (explaining the provision’s genesis as the pesolu-

tion of a conflict between some States, which argued for

authority to enforce hazardous materials requirements,

and the railroad industry, which had argued for full fed-

eral preemption ).

The amendments made by the Safety Act thus provide

a vehicle for States to participate in the administration of

the federal hazardous-materials regulations with respect

to railroads. Ohio’s present legislation sought to achieve

a similar result hy incorporating federal requirements

Oct. 25, 1990) (remarks of Rep. Whittaker and Rep. Luken): #7.

at S17,276 (daily ed. Oct. 26, 1990) (remarks of Sen. Brean).

"The FRSA participation program authorizes States to “par-

ticipate in carrvine out investigative and surveillance activities”

with respect to rail safety issues under conditions prescribed in

the statute. 45 U.S.C. 485(a).

into state law. Although Ohio’s legislative approach to

bringing its resources to bear on the problem differs from

the approach adopted by the Safety Act, that Act ad-

dresses in significant respects the concerns that prompted

Ohio’s action.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.