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decided: April 25, 1980.


Nos. 110 and 111 March Term, 1979, Consolidated appeals from an order of the Commonwealth Court entered on April 12, 1979 at No. 1536 C.D. 1977 which reversed an order of the Pennsylvania Public Utility Commission entered on July 6, 1977 at Complaint Docket No. 21493.


H. Woodruff Turner, Dennis M. Sheedy, Kirkpatrick, Lockhart, Johnson & Hutchison, Pittsburgh, for Norfolk and Western Railway Co.

James Kutz, Asst. Counsel, John B. Wilson, Deputy Chief Counsel, George M. Kashi, Chief Counsel, Harrisburg, for PUC.

T. P. Shearer, Pittsburgh, for Pa. State Legislative Board, United Transportation Union.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.

Author: Roberts

[ 489 Pa. Page 113]


This case involves a challenge to the validity of the Pennsylvania Public Utility Commission (PUC) regulation which requires that locomotives operating in the Commonwealth be equipped with devices which sanitarily dispose of human waste material.*fn1 The PUC, after a hearing, found that appellee Norfolk and Western Railway Company (N&W) was in violation of this requirement, and ordered appellee to cease operation of its locomotives until compliance is achieved. On appeal a three-judge panel of the Commonwealth Court reversed the PUC order, holding that the federal Boiler Inspection Act*fn2 preempts all state regulation of locomotives used in interstate commerce.

We disagree with the Commonwealth Court's interpretation of federal law and hold that: (1) state regulation of sanitary devices on locomotives is not preempted by the Boiler Inspection Act or the Federal Railroad Safety Act of 1970;*fn3 (2) state regulation is not preempted by the regulations of the Food and Drug Administration (FDA); (3) enforcement of the PUC regulation does not unduly burden interstate commerce; and (4) the findings of the PUC that the N&W system does not sanitarily dispose of human waste material is supported by substantial evidence.*fn4 Accordingly, the order of the Commonwealth Court is reversed, and the order of the PUC is reinstated.

[ 489 Pa. Page 114]


Norfolk and Western Railway (N&W) is an interstate freight carrier which operates in twelve states, including Pennsylvania. Prior to 1971, N&W's engines were equipped with flush toilets which discharged untreated human waste material onto the right-of-way. In 1971 the FDA, pursuant to the Communicable Disease Act,*fn5 enacted regulations which prohibited the discharge of untreated waste in this manner.*fn6 In response to these regulations, N&W designed its "NW Sanitary Toilet System:"

"The N&W sanitary toilet system is composed of a combination wash basin/urinal, and a toilet. The toilet consists of a hollow seat fastened to the floor of the locomotive. The user inserts a polyethylene bag through the hole in the seat and drapes the top of the bag over the seat. After use, the bag is supposed to be sealed with a non-slip tie and placed in a plastic holding container. The container must be carried in the hood of the locomotive until disposed of in an off-site pathological incinerator."

(PUC Findings Nos. 15 & 16).

Before installation of the new system, N&W sought FDA approval that the system would comply with the FDA regulations on communicable disease. The FDA approved the system on the ground that the system as designed would not discharge waste material onto the right-of-way. Furthermore, the FDA's approval was conditional:

[ 489 Pa. Page 115]

"Since the disposal system meets the major intent of the federal regulation (42 CFR 72.154) in prohibiting the discharge of raw human waste upon railroad tracks, there is no objection to the system being used on locomotives and cabooses. The clearance for this type of disposal equipment is given on the basis that the entire disposal system, including the bag receptable [sic] containers, urinal chlorination fixtures, and incinerators, be installed, and operated, and maintained in an acceptable sanitary manner."*fn7

(Emphasis added). By July of 1976, the system was installed on 1,160 locomotives.

Long prior to 1971, the PUC, in the regulation challenged here, required that "all locomotives operated by or on each of the railroads in this Commonwealth, except those specifically exempted, shall be equipped with flush toilets or similar devices which sanitarily dispose of human waste matter, together with toilet paper properly protected from soil prior to use." 52 Pa.Code § 33.62. On January 5, 1976 appellant Pennsylvania State Legislative Board, United Transportation Union (UTU) filed a petition with the PUC alleging that N&W's locomotives violate § 33.62. On July 15, 1976 the PUC held a hearing on the UTU's petition. The PUC found, inter alia, that:

"Many problems have arisen in connection with the N&W sanitary toilet system: plastic bags have been thrown from the engines; at times there are no bags or ties on the locomotive; plastic receptacles are sometimes cracked; bags have ripped; N&W has never actually tested its sanitary toilet system in day to day use; and connecting carriers over which N&W engines move are not equipped to service the N&W Sanitary Toilet System. (Finding No. 19)

Complaints have been made to N&W regarding odor emanating from both plastic bags and urinals. (No. 20) The only pathological incinerator in Pennsylvania, on the N&W line, is at Rook, Pennsylvania. (No. 17)

[ 489 Pa. Page 116]

Only about 50 per cent of N&W's through locomotives are dispatched at Rook, and the others move through the yard without being dispatched. (No. 8)

The N&W sanitary toilet system does not sanitarily dispose of human waste matter. (No. 21)

The N&W system is unique since no other railroad in the United States has a similar system. (No. 22)

No other state has regulations covering the same subject matter as 52 Pa.Code § 33.62. (No. 23)"

In light of these findings, the PUC ordered N&W to discontinue within 120 days operation of all locomotives which did not comply with § 33.62. As already indicated, N&W appealed to the Commonwealth Court which reversed the PUC order and dismissed the complaint on the ground that Pennsylvania was precluded from regulating any parts of locomotives used in interstate commerce.



The power to regulate local matters relating to health and safety, known as the police power, is traditionally reserved to the states. Commonwealth v. Barnes & Tucker Co., 472 Pa. 115, 371 A.2d 461 (1977); Allen-Bradley Local No. 1111 v. Wisconsin E. R. Board, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154 (1942); Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385 (1894). The state's power to regulate in an area, however, is subject to limitation by Congress. As articulated by the United States Supreme Court in Rice v. Santa Fe Elevator Corporation, 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1946), "[w]e start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purposes of Congress" (citing cases).

In matters involving interstate commerce, states may act provided that the federal government has not preempted the field, Pennsylvania R. Co. v. PUC of Pa., 250 U.S. 566, 40 S.Ct. 36, 64 L.Ed. 1142 (1919), and so long as the

[ 489 Pa. Page 117]

    state regulation does not impose an undue burden on interstate commerce. (See Part IV, infra). Federal preemption of an area within interstate commerce is sometimes expressly articulated by Congress. See, e. g., Allegheny Airlines, Inc. v. Philadelphia, 453 Pa. 181, 309 A.2d 157 (1973) (Federal Aviation Act expressly preempts state taxation of air commerce). In the absence of express preemption, however, the manifestation of Congressional ...

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