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David Roth; Betsy Roth v. Norfalco LLC

June 28, 2011

DAVID ROTH; BETSY ROTH,
APPELLANTS
v.
NORFALCO LLC



On Appeal from the United States District Court for the Middle District of Pennsylvania District Court No. 1-06-cv-01452 District Judge: The Honorable Yvette Kane

The opinion of the court was delivered by: Smith, Circuit Judge.

PRECEDENTIAL

Argued March 24, 2011

Before: FUENTES, SMITH, and GREENBERG,

Circuit Judges

OPINION

David Roth was attempting to unload a railway tank car filled with sulfuric acid when its chemical contents exploded, spraying Roth across his face and chest and inflicting severe burns. Roth brought suit, seeking damages for his personal injuries under the common law, but the District Court held that his lawsuit was preempted by the Hazardous Materials Transportation Act (―HMTA‖), 49 U.S.C. §§ 5101-5128. We agree and will therefore affirm.

I

In the early 1970s, those who transported hazardous materials through interstate commerce were forced to navigate ―a patchwork of sometimes conflicting state regulations.‖ Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1112-13 (3d Cir. 1985). The prevailing regulatory regime was fragmented and, to some, incoherent. S. Rep. No. 93-1192, at 8 (1974) (explaining that ―the fragmentation of regulatory power among the agencies dealing with the different modes of transportation blocks a coherent approach to the problem‖). At the same time, the quantity of hazardous material moving across state lines was on the increase.

S. Rep. No. 93-1192, at 7 (―The amount of hazardous material being transported in the United States increases every year.‖). Predictably, accidents involving such materials were concomitantly on the rise. S. Rep. No. 93-1192, at 7 (―The increasing volume of dangerous products in commerce has brought with it an increasing number of accidents.‖). To address these concerns, the Secretary of Transportation requested greater oversight capability. See S. Rep. No. 93-1192, at 7.

Congress responded by enacting the HMTA in 1975. Its overriding purpose was to develop ―a uniform, national scheme of regulation regarding the transportation of hazardous materials.‖ CSX Transp., Inc. v. Williams, 406 F.3d 667, 674 (D.C. Cir. 2005) (Henderson, J., concurring) (internal quotation marks omitted); Chlorine Inst., Inc. v. Cal. Highway. Patrol, 29 F.3d 495, 496 (9th Cir. 1994); Colo. Pub. Utils. Comm'n v. Harmon, 951 F.2d 1571, 1574 (10th Cir. 1991); Cent. Jersey Power, 772 F.2d at 1112-13; see also S. Rep. 93- 1192, at 1 (stating that passage of the HMTA was intended to ―draw[] the Federal Government's now- fragmented regulatory and enforcement power over the movement of hazardous materials in commerce into one consolidated and coordinated effort under the direction of the Secretary of Transportation‖). Congress underscored--and expanded upon--this objective fifteen years later when it amended the HMTA and found, among other things, that: (3) many States and localities have enacted laws and regulations which vary from Federal laws and regulations pertaining to the transportation of hazardous materials, thereby creating the potential for unreasonable hazards in other jurisdictions and confounding shippers and carriers which attempt to comply with multiple and conflicting registration, permitting, routing, notification, and other regulatory requirements,

(4) because of the potential risks to life, property, and the environment posed by unintentional releases of hazardous materials, consistency in laws and regulations governing the transportation of hazardous materials is necessary and desirable,

(5) in order to achieve greater uniformity and to promote the public health, welfare, and safety at all levels, Federal standards for regulating the transportation of hazardous materials in intrastate, interstate, and foreign commerce are necessary and desirable[.]

Hazardous Materials Transportation Uniform Safety Act of 1990, Pub L. No. 101-615, § 2, 104 Stat. 3244, 3245 (1990). In 2005, Congress amended the HMTA again and re-adopted these findings. Hazardous Materials Transportation Safety and Security Reauthorization Act of 2005, Pub. L. No. 109-59, § 7101, 119 Stat. 1144, 1891 (2005).

The HMTA empowers the Secretary of Transportation to ―prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce.‖ 49 U.S.C. § 5103(b)(1); see also Am. Chemistry Council v. Dep't of Transp., 468 F.3d 810, 812 (D.C. Cir. 2006) (describing this delegation as a ―broad mandate‖).

Pursuant to this authority, the Department of Transportation (―DOT‖) promulgated a set of rules known as the Hazardous Materials Regulations (―HMR‖). 49 C.F.R. §§ 171-180.605. These regulations apply to matters of ―transportation‖ in ―commerce.‖ 49 U.S.C. § 5103(b)(1); 49 C.F.R. § 171.1. The HMTA defines ―transportation‖ as ―the movement of property and loading, unloading, or storage incidental to the movement.‖ 49 U.S.C. § 5102(13). ―Commerce‖ means, inter alia, ―trade or transportation in the jurisdiction of the United States . . . between a place in a State and a place outside of the State.‖ 49 U.S.C. § 5102(1)(A). The scheme erected by the HMTA/HMR is thus controlling during the interstate movement of hazardous materials, and also at various stages before and after said movement. See 49 C.F.R. § 171.1(a)-(c) (describing

―pre-transportation functions,‖ ―transportation functions,‖ and instances of ―storage incidental to movement‖).

Where applicable, the HMR is comprehensive: it sets forth, for example, each substance or material considered to be ―hazardous‖; governs the transport of such material by aircraft, railcar, vessel, and motor vehicle; describes requirements for packaging, marking, labeling, declaring, and registering hazardous materials; and advances a series of training and security requirements for those who come into contact with hazardous substances. Failure to comply with these provisions can result in an array of administrative sanctions, civil penalties, and, under certain circumstances, criminal punishment. See 49 U.S.C. §§ 5121-24.

Sulfuric acid is a ―hazardous material.‖ 49 C.F.R. § 172.101. Accordingly, railway tank cars carrying the chemical must adhere to design specifications approved by the DOT. 49 C.F.R. § 173.242(a). Tank cars must be mounted to a railcar structure in a specified manner. 49 C.F.R. §§ 179.10-179.11. Tank car volume and weight capacity are spelled out. 49 C.F.R. § 179.13. Most tank car models must satisfy DOT standards for thermal resistance. 49 C.F.R. § 179.18. Modifications to the design features set forth in the HMR are prohibited absent written authorization from the DOT. 49 C.F.R. §§ 179.3-179.4.

Defendant Norfalco transported sulfuric acid using model 111AW non-pressure tank cars. The HMR governs the 111AW's shape, 49 C.F.R. § 179.200-3, the thickness of the plates used to construct the car, § 179.200-6, its expansion capacity, § 179.200-14, the method for applying attachments to the tank car structure, § 179.200-19, the size, shape, and appearance of plugs used to cap tank car openings, § 179.200-21, and the presence, quantity, and application of insulating materials, § 179.200-4. Each 111AW tank car must also undergo pressure testing to ensure there is no ―leakage or evidence of distress.‖ 49 C.F.R. § 179.200-22. It is undisputed that Norfalco fully complied with the HMR requirements for model 111AW tank cars.

The HMR sets forth various fittings suitable for tank car installation. When so installed, ―[g]auging devices, top loading and unloading devices, venting and air inlet devices‖ must be approved for use by the Association of American Railroads (―AAR‖), an industry standard-setting organization. 49 C.F.R. § 179.200-16; 49 C.F.R. § 179.2 (defining ―approved‖ under Part 179). The AAR, in turn, publishes a ―Manual of Standards and Recommended Practices,‖ one chapter of which details design and maintenance criteria for the fittings identified above. Several specifications in this chapter pertain to devices installed on sulfuric ...


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