Daley Mohan Groble - DMG Updates

Third Circuit Federal Appellate Court Gives Judicial Teeth to “Robust Preemption Provisions” of the Hazardous Materials Transportation Act

By Rich Sikes

In the early 1970s shippers of hazardous materials in interstate commerce were subjected to a patchwork of multiple and potentially conflicting state and local regulations with the resulting confusion as to how to comply. In 1975, Congress enacted the Hazardous Materials Transportation Act (HMTA), 49 U.S.C. § 5101 et seq., the overriding purpose of which was to provide a “uniform, national scheme of regulation regarding the transportation of hazardous materials.” CSX v. Transportation, Inc. v. Williams, 406 F.3d 667, 674 (D.C. Cir. 2005).

The original HMTA included a relatively weak provision that preempted state and local requirements only if “inconsistent” with federal regulations. Unfortunately, under this standard, sometimes conflicting, non-federal requirements continued to proliferate, exacerbating the problem for shippers. As a result, in 1990, Congress overhauled and substantially strengthened the preemption provisions of the HMTA by adding specific subject matter preemption.  

Since then, there have been but few state or federal decisions that have directly construed the scope of the 1990 preemption provisions in the context of personal injury litigation. Recently, however, the Third Circuit Federal Appellate Court squarely held that shippers of hazardous materials in railroad tank cars that comply with the statutory and regulatory requirements of HMTA are protected from claims that the tank car design is defective or unsafe. Roth v. Norfalco, Inc., 651 F.3d 367 (3rd Cir. 2011).

The plaintiff, David Roth, was a “chemical unloader” working at his employer’s paper mill in York, Pennsylvania. He was seriously burned while attempting to unload sulfuric acid from a railroad tank car used by the defendant-shipper, Norfalco, Inc. (Norfalco), to transport the sulfuric acid to that location. In his personal injury action, Roth claimed that the design of the tank car was defective in failing to have adequate valves and pressure gauges.  

The court applied the following HMTA preemption provisions:

Unless authorized by another law of the United States, a law, regulation, order, or other requirement of a State, political subdivision of a State, or Indian Tribe about any of the following subjects, that is not substantively the same as a provision of this chapter [or] a regulation under this chapter . . . is preempted. 

49 U.S.C. § 5125(b)(1). The statute then lists five specific subject areas relating to: (A) the designation of a hazardous material; (B) packing and labeling; (C) preparation of shipping documents; (D) reporting of unintentional releases; and, most importantly: 

(E) the designing, manufacturing, fabricating, inspecting marking, maintaining, reconditioning, repairing, or testing a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce.

49 U.S.C. § 5125(b)(1)(E).  

 Norfalco used model 111AW non-pressure tank cars to ship its product and equipped its sulfuric acid tank cars with a top-loading/unloading “eduction” pipe and an air inlet pipe. During the unloading process, air is pumped in to the air inlet pipe to force the product out through the eduction pipe. Importantly, the air inlet pipe contains an air inlet valve that is used to vent built-up air pressure in the tank before unloading.

The Hazardous Materials Regulations (HMR) promulgated under HMTA by the Department of Transportation, subject railroad tank cars to a host of regulatory design requirements. In particular, HMR provides that “gauging devices, top loading and unloading devices, venting and air inlet devices” must be approved for use by the Tank Car Committee of the Association of American Railroads (AAR). 49 CFR § 179.200-16. 

Norfalco’s fittings, along with the entire tank car, had been approved and certified by AAR for the transportation of sulfuric acid. Indeed, by the conclusion of discovery, Roth was forced to concede that Norfalco’s tank car complied with all HMR and AAR criteria concerning loading and unloading, venting and air inlet devices. 

Roth was injured when he was attempting to remove an unloading hose acid hose, supplied by his employer, from the eduction pipe. Unfortunately, Roth forgot to first vent any built-up pressure in the car, causing acid to spray out of the eduction pipe when he unscrewed the acid hose.

In his common-law tort action, Roth argued that the fittings on the tank car were unsafe. His hired experts opined that the tank car should have been equipped with an additional valve on the eduction pipe and a pressure gauge to indicate interior pressure.

Both the district and appellate courts, however, ruled that these would be design requirements that exceeded, and were not substantially the same as, the federal regulations; and were therefore preempted by the express preemption provisions of HMTA. Indeed, after reviewing the intent of Congress from the express preemption provisions, and the extensive regulations in place, the Court concluded: “we are thus left with a robust preemption provision that leaves little, if any, room for non-federal regulation.” Roth, 651 F.3d at379. This decision gave the HMTA’s preemption provisions judicial teeth as a source of uniform regulatory framework for shippers of hazardous materials in commerce.

Daley Mohan Groble’s Richard Sikes developed the preemption argument for Norfalco in Roth. For more information about this case and the HMTA, please contact Richard Sikes at rsikes@daleymohan.com or 312.422.5534.  

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