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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1991
- **Citation:** 498 U.S. 1066

## Text

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

_—-

——

am

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)

IV

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

ij

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) :
© AQOG BS occ caccaseccacssssiiacevastcnnsesaeacssdéacenssscsoeneens 4
© AQT LS .ovciccaccsccccnscssssccssaccosesestsnccssessssasascsscsneassons 3, 6
© AQNG GD aos ccccisicsncsssecsctanscussncsscccssenacsascossniaisassees 4

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)

2

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.

3

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.

4

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).

5

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

6

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

7

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).

8

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,

9

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.

10

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

11

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

12

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).

13

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

14

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.

15

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

16

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.

17

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).

18

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.

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

DECEMBER 1990

YY U. S. GOVERNMENT PRINTING OFFICE; 1990 282061 20275

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1835%3A5. Public record. Not legal advice.