for approval of a route. See Plaintiff's exhibit 2019. Only on rare occasions has route approval taken less than 60 days, and some requests have been pending for over 730 days. Of the requests for which the data on disposition time is available, 74.1% have taken more than 3 months, 61.04% more than 6 months, 38.51% more than 8 months, and 30.86% more than a year. Over 5% have taken more than two years and are currently pending. Id. These statistics are appalling, given the high rate of approvals once an application is acted on.
Further, a look at the causes of delay in acting on applications demonstrates that the longer delays are experienced on applications that, by statute, require municipal approval of even a small section of the route. Plaintiff's exhibit 2019. Generally, at least one local approval is required for terminal access. Often, the segment of the route requiring local approval is the last segment into the terminal for which no alternative routes are usually available. See Deposition of Walter Bagley at 30-32; N.T. 3:44-45 (1/10/86); Deposition of Michael S. Gillespie at 77; Deposition of George Harley at 21; N.T. 4:14 (1/13/86). Rather than being an indication that locally-maintained roads tend to be less safe for travel by STAA vehicles, and therefore justify more study and investigation prior to approval, these delays appear, from the evidence, simply to be the result of the slow movement of local approval machinery, or the result of conscious decisions not to respond to requests for approval.
Additionally, local denials of segments of access routes appear to be guided by no articulated standards and often by misguided notions of the safety and operating characteristics of STAA vehicles. In keeping with our determination that a state may, under the Surface Transportation Assistance Act, exercise its police powers reasonably to review an access route and subsequently to deny access in the interest of public safety, we also hold that a denial of an access route must be for safety reasons and must be related to a safety or operating characteristic of the STAA vehicle in relation to the proposed route. Otherwise, the denial amounts to a denial of reasonable access in contravention of the federal statute.
The evidence in the record shows that municipalities often have no reason at all for denying a particular route. Municipalities have frequently denied routes that local Department of Transportation districts would have approved had the routes been under the department's jurisdiction. See Deposition of Terry Carlson at 26-27, 35; Deposition of Donald Fein at 20, 26, 29-34; N.T. 3:44, 46-47, 55-56 (1/10/86); Deposition of Gillespie at 25, 69. Some municipalities have a policy of automatically denying or refusing to respond to all applications for access routes. Most notably among these is the city of Philadelphia. Deposition of Bagley at 14-15, 45; Deposition of Jack W. Boorse at 20-21; Deposition of Carlson at 25, 28-30, 35-37; Deposition of Fein at 7-10, 20-21, 27-28; N.T. 3:56-57, 59 (1/10/86); N.T. 4:57-58; Plaintiff's exhibit 2020.
Other municipalities are completely ignorant of the characteristics of STAA vehicles. Kost deposition at 54. They consequently base denials on factors that are not relevant simply to STAA vehicles, but rather to large commercial vehicles that already run on the proposed route, or to all vehicles generally, or on factors that are irrelevant to safety altogether. For instance, one township believed that the trucks presently using the requested route into the terminal, principally non-STAA semis, were tearing up the township road and the township board wanted the trucking firm to rebuild the road for them. Consequently, the township denied the requested access route for twin trailers in an attempt to force the company to make the repairs. No safety reason or operating characteristic unique to twins was given for the denial. Bagley deposition at 46-50. Other townships have cited intersection maneuverability as a reason for denying access to twin trailers when, in reality, the turning radius and therefore maneuverability of a twin trailer combination vehicle is actually more favorable than in a semi. Carlson deposition at 53-54; N.T. 3:48-49 (1/10/86); Kost deposition at 12-13, 46; Fein deposition at 36; Ervin deposition at 13-16; N.T. 2:93-97 (1/9/86). Still other municipalities base denials on such irrelevant and improper factors as the amount of traffic over a particular route,
general accident rates, roadwear, economic benefits to the community, public attitudes toward large trucks, and other political considerations. Bagley deposition at 28-30; Fein deposition at 24; Galati deposition at 58; Gillespie deposition at 46; Wood deposition at 25; Plaintiff's exhibit 2020 at 69, 95, 117, 89-93, 125-127; N.T. 3:48 (1/10/86); N.T. 4:61-62 (1/13/86).
Denials based on such factors that are irrelevant to safety, and denial of access pending lengthy review of an application for access amount to denial of reasonable access in violation of the Surface Transportation Assistance Act. Although we cannot specify what amount of time a reviewing body may take under the Act to review an application for access and still be acting within their reasonable police powers, we do rule that an average denial pending review of 257 days, or even a denial of ninety days as proposed by the Department's new regulations, is not reasonable. While we hold that the reasonableness of a denial pending review, and the length of that denial, is governed by the severity of risk posed by the proposed use of a particular route by STAA vehicles, we cannot conceive of any situation that would warrant a review period of three months. Even a route that needs careful study for safety reasons can be driven by a traffic safety engineer or other official in a few days. A demonstration run by an applicant's STAA vehicle can also be arranged in a few weeks. Similarly, a meeting with company officials to determine the operating characteristics of the proposed vehicle could be arranged in the same few weeks. We therefore hold that Pennsylvania's expanded access route approval procedures, insofar as they deny access for an unreasonable amount of time pending review of applications, and insofar as they lead to denials of access for reasons other than the safety or operating characteristics of the particular vehicles in question in relation to the particular route in question, are in violation of the Surface Transportation Assistance Act.
The Commonwealth argues that these two defects of lengthy denials pending review and arbitrary denials by municipalities have already been eliminated by the December 1985 regulations and by other informal policies and procedures within the department. As we discussed in section II-C, supra, we find that the department's authority to bind municipalities by regulation is severely limited under the statute. We therefore do not believe that these regulations have improved or will improve Pennsylvania's overall record on lengthy denials pending review or on arbitrary denials. Plaintiff's claims are therefore not moot, and our holding that the access route approval scheme violates federal law in these two respects stands.
3. Access to Points of Loading and Unloading
The Pennsylvania statutory scheme provides for access to points of loading and unloading for household goods carriers using both STAA semis and double trailer combinations, however prior approval of routes is required for double trailer combinations. Access for single twins is nowhere provided for, but the Department of Transportation's informal policy is to allow them to run freely over Pennsylvania highways without prior approval.
Although the same standards for determining the reasonableness of an access route and the reasonableness of a state's exercise of police power applies to access to points of loading and unloading, another factor becomes important for these determinations. Points of loading and unloading, unlike locations of terminals, necessarily change with great frequency and are dependent upon the locations of the customers serviced by trucking companies. A carrier of general commodity freight, such as Consolidated, transports small shipments of freight for many different customers. This type of carrier serves small and large shippers, manufacturing locations, commercial establishments (e.g. pharmacy and office supply stores), schools, hospitals, and even private residences. There is often little or no advance notice as to a customer's location, and pick-up and delivery locations change daily. N.T. 1:33-135 (1/8/86); Plaintiff's exhibit 2007. Similarly, household goods carriers transport goods mainly for residential customers who expect their furnishings to be picked up and moved from their residence to their new homes with no delays for route approval.
In these circumstances, the reasonableness of prior review as an exercise of police power is greatly reduced, especially where a carrier seeks to use single twins for its pick up and delivery operations. Congress itself recognized that the interests of safety were better served by allowing pick-ups and deliveries to be made in single twins rather than in full semis:
Section 5 of the Tandem Truck Safety Act of 1984 therefore provides authority for safer and more efficient motor carrier operations in pickup and delivery service by assuring reasonable access to points of loading and unloading to a limited and clearly-defined class of commercial motor vehicles on a uniform national basis.
S. Rep. No. 505, 98th Cong., 2d Sess., reprinted in 1984 U.S. Code Cong. & Ad. News 4784.
In view of the frequency of route changes for household goods carriers and operators of single twins, then, we find that it is not a reasonable exercise of police power to require prior approval of routes used by these vehicles. Indeed, such a requirement would virtually mandate the use of non-STAA vehicles because of the frequency with which points of loading and unloading change, and would therefore effectively deny all access to points of loading and unloading for these vehicles, in serious violation of federal law.
Our holding that prior route approval for household goods carriers and single twins may not be required under federal law does not, however, prohibit states from exercising their reasonable police powers with respect to these vehicles in other ways. Indeed, Congress expressly provided that a state or local government could impose "reasonable restrictions based on safety considerations," on the operation of single twins. We hold only that prior review of access routes to and from points of loading and unloading is not a reasonable restriction.
III. CONCLUSIONS OF LAW AND DECLARATORY RELIEF
In view of the above findings of fact and discussion, we make the following conclusions of law and grant the following declaratory relief:
1. Under the Surface Transportation Assistance Act, states may engage in prior review and approval of access routes between the national network and terminals and facilities for food, fuel, rest and repair, but only to the extent that the review is a reasonable exercise of the state's police powers with a view toward safeguarding public safety on roads within the area of the state's jurisdiction.
2. The greater the risk to the safety of the public posed by the use of a route by an STAA vehicle, the more leeway the state has to deny or temporarily deny the use of that route pursuant to the reasonable exercise of its police powers.
3. A temporary denial of access pending review must be only for a reasonable length of time, and reasonableness is governed by the severity of the risk to the safety of the public posed by the proposed use.
4. Pennsylvania's statutory blanket restriction of access to facilities for food, fuel, rest, and repair to two-tenths of a mile over highways with lanes of 12 feet or more effectively denies reasonable access to facilities for food, fuel, rest and repair.
5. Pennsylvania's expanded access route approval procedures for access to terminals denies reasonable access in violation of federal law to the extent that it denies access for an unreasonable amount of time pending review of route applications, and to the extent that it leads to denials of access for reasons other than than safety of the public.
6. To the extent that Pennsylvania requires prior route approval for household goods carriers operating STAA vehicles and for single twin trailer combinations, it denies reasonable access to and from points of loading and unloading in violation of federal law.
R. DIXON HERMAN, United States District Judge
AND NOW, this 19th day of November, 1986, IT IS ORDERED and DECLARED that:
1. Pennsylvania's access route approval scheme violates and is preempted by federal law to the extent that it denies reasonable access between the national network of highways established by the Surface Transportation Assistance Act and terminals, facilities for food, fuel, rest and repair, and points of loading and unloading, in accordance with the terms of the accompanying memorandum.
2. Defendants are hereby permanently enjoined from further denial of reasonable access in accordance with the terms of the accompanying memorandum.
3. The Clerk of Court is directed to close the file.
R. DIXON HERMAN, United States District Judge