Appeal from the Order of the Pennsylvania Public Utility Commission in case of Pennsylvania State Legislative Board, United Transportation Union v. Norfolk and Western Railway Company, Complaint Docket No. 21493.
H. Woodruff Turner, with him Dennis M. Sheedy, Alan C. R. Lewis, and Kirkpatrick, Lockhart, Johnson & Hutchison, and, of counsel, Henry D. Light, for petitioner.
Candace N. Kreiger, Assistant Counsel, with her John B. Wilson, Assistant Counsel, and Kathleen Herzog Larkin, Chief Counsel, for respondent.
Thomas P. Shearer, for intervenor.
Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 41 Pa. Commw. Page 635]
This case is before us on appeal from a decision of the Pennsylvania Public Utility Commission (PUC) ordering Petitioner Norfolk and Western Railway Company (N&W) to discontinue within 120 days the operation of any of its locomotives which were not equipped with "flush type toilet[s] or similar device[s]" pursuant to 52 Pa. Code § 33.62 (PUC Regulation).*fn1
N&W is an interstate freight carrier operating in 12 states and Canada; its rail lines extend for 130 miles inside Pennsylvania's borders. It operates a total of 1,444 locomotives all of which may pass through Pennsylvania at various times. Before 1971, N&W's locomotives were equipped with flush type toilets which discharged untreated human waste directly onto railroad beds. In 1971, the Federal Food and Drug Administration (FDA) promulgated regulations relating to toilet facilities on railroad conveyances including regulations which prohibited the discharge of untreated human waste from railroad conveyances onto the roadbed. 21 C.F.R. § 1250.51. To comply with that regulation N&W tested and considered a number of commercially available toilets and finally chose the NW Sanitary Toilet System (NW System). The NW System consists of four basic components:
[ 41 Pa. Commw. Page 636]
a urinal, a chlorinator, a toilet, and an incinerator; only the latter two components are at issue here. The toilet consists of a hollow seat fastened to the floor of the locomotive. The user inserts a polyethelene bag through the hole in the seat and drapes the bag over the seat. After use, the bag is sealed by means of a non-slip tie and placed in a plastic holding container. The container is then placed in the hood of the locomotive until disposed of in an off-site pathological incinerator. One incinerator has been installed for this purpose at an N&W service stop in Rook, Pa.
N&W sought and received FDA approval for the NW System as to its method of disposing of human waste. Thereafter, N&W installed the system on 1,160 locomotives at a cost of $531,000.00.
On January 5, 1976, the Pennsylvania State Legislative Board, United Transportation Union (U.T.U.) filed a petition, which the PUC treated as a complaint, alleging that the NW System does not comply with 52 Pa. Code § 33.62. After a public hearing the PUC found that the NW System did not comply with its regulation and entered an order directing compliance.
In its appeal to this Court, N&W contends that: (1) the PUC lacks authority to regulate toilet facilities on interstate railroad locomotives because States are preempted from enforcing such regulations by the Boiler Inspection Act, 45 U.S.C. § 22 et seq. (Boiler Act) and/or Regulations of the Federal Food and Drug Administration, 21 C.F.R. §§ 1250.50, 1250.51; (2) Pennsylvania's attempt to regulate interstate ...