Roth v. NORFALCO LLC

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 10-2524
_____________

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

Argued March 24, 2011

Before: FUENTES, SMITH, and GREENBERG,
Circuit Judges

(Filed: June 28, 2011)
Albert J. Evans (argued)
Riley & Fanelli P.C.
1 Mahantongo Street
Pottsville, PA 17901
Counsel for Appellant

David C. Gustman
Deborah H. Bornstein (argued)
Marc H. Kallish
Tina C. Mazzulla
Freeborn & Peters LLP
311 South Wacker Drive
Suite 3000
Chicago, IL 60606

Stephen J. Kastenberg
Burt M. Rublin
Ballard Spahr LLP
1735 Market Street
51st Floor
Philadelphia, PA 19103-7599

Dennis R. Sheaffer
Tucker Arensberg & Swartz
111 North Front Street
P.O. Box 889
Harrisburg, PA 17108
Counsel for Appellee

2
 ________________

OPINION
________________

SMITH, Circuit Judge.

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
3
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
4
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
5
 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
6
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
7
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
8
devices installed on sulfuric acid-bearing cars. The
parties agree that Norfalco‘s tank cars complied with
AAR criteria concerning gauging devices, top loading
and unloading devices, venting and air inlet devices.

Most tank cars must also be equipped with agency-
approved pressure relief devices. See 49 C.F.R. §
179.15. Such instruments must permit ―sufficient flow
capacity to prevent pressure build-up in the tank.‖ 49
C.F.R. § 179.15(a). Flow capacity requirements are set
forth in the AAR Manual of Standards and
Recommended Practices. 49 C.F.R. § 179.15(b).
Furthermore, the HMR dictates precise technical settings
according to which pressure relief devices must be
reclosed following use, 49 C.F.R. § 179.15(b), and
imposes testing standards to ensure that each instrument
satisfies applicable criteria before it is put to use in
transport, 49 C.F.R. § 179.200-23. The parties agree that
Norfalco complied in full with the HMR requirements for
pressure relief devices. Indeed, there is not a single
provision in the HMTA or HMR with which Norfalco
failed to comply.

II

P.H. Glatfelter Company is a paper manufacturer
based in York, Pennsylvania. Its manufacturing process
requires large quantities of sulfuric acid—approximately
40,000 pounds per day—which it uses to bleach wood
pulp. In 2004, Glatfelter purchased nearly all the sulfuric
9
acid it needed from Norfalco, North America‘s largest
supplier of the chemical. Norfalco would then deliver
the sulfuric acid by rail directly to Glatfelter‘s
Pennsylvania mill.

Roth was employed by Glatfelter as a ―chemical
unloader.‖ His primary responsibility, as his job title
suggests, was to unload sulfuric acid from the tank cars
sent by Norfalco. Before he could safely do so, however,
Roth was required to depressurize each car. This process
was simple enough: Roth explained in a deposition that
he first removed a cap covering an ―air inlet‖ located on
the tank car and then opened something called the
―Jamesbury valve.‖ At this point, air began to exit the
tank car through the uncapped air inlet. Roth knew the
tank car was depressurized when he could no longer hear
or feel air escaping from the inlet.

To unload the depressurized tank car of its
chemical contents, Roth opened a second inlet into which
he inserted a rod-like device called an ―elbow pipe.‖ On
the opposite end of the elbow pipe, Roth attached a
rubber hose, called the ―acid hose.‖ The acid hose ran to
a nearby ―acid storage tank.‖ Roth had to siphon the
sulfuric acid out of the tank car through the acid hose by
pumping air into the tank car through the first air inlet;
the incoming air pushed sulfuric acid out of the tank car
through the second air inlet and into the acid hose, where
it flowed into the storage tank. On average, it took
approximately two hours to empty a tank car of sulfuric
10
acid.

On August 11, 2004, Roth was attempting to
unload a tank car of sulfuric acid when he encountered an
unidentified mechanical difficulty. Because the source of
the complication was not apparent, Roth‘s supervisor
instructed him to ―deactivate‖ the unloading process and
move on to another tank car. Roth complied, but he did
not remove the elbow pipe from the partially-unloaded
car. Two days later, Roth was told to detach the pipe.
As he did so, acid began ―flying out‖ of the air inlet,
spraying Roth‘s face and chest and causing severe burns.
Roth later explained that he had not attempted to
depressurize the tank car before removing the elbow pipe
because he believed—mistakenly, as it turned out—that
the car was ―already depressurized.‖

Roth invoked diversity jurisdiction and filed a
complaint in the District Court asserting negligence,
strict liability, products liability, and breach of warranty
claims. His theory of the case was the stuff of basic tort
law: Norfalco had a duty to design its tank cars to ensure
they were safe for those who unloaded them. This duty
required Norfalco to equip its cars with a safety valve
that would have allowed a chemical unloader like Roth to
control the rate at which sulfuric acid was discharged. In
addition, Norfalco had a duty to equip its tank cars with a
pressure gauge, whose presence would have alerted Roth
of the need to depressurize the car before unloading it.
The absence of both safety devices, according to Roth,
11
meant that Norfalco had been negligent. Roth also
argued that Norfalco warranted that its cars were
designed in a reasonably safe manner, that Norfalco‘s
tank cars were ultrahazardous, and that, given the
absence of a safety valve and pressure gauge, sulfuric
acid could not be removed from the cars in a safe and
prudent manner.

The District Court granted summary judgment in
favor of Norfalco. The Court first determined that Roth‘s
common law negligence, products liability, and breach of
warranty claims are expressly preempted by the HMTA.
It then held that Roth‘s strict liability claim, while not
preempted, nonetheless failed because unloading sulfuric
acid from a tank car is not an ―abnormally dangerous
activity.‖ Roth appeals this decision, attacking both of
the District Court‘s conclusions. We have jurisdiction to
entertain his appeal pursuant to 28 U.S.C. § 1291.

III

We subject a grant of summary judgment to
plenary review. Barefoot Architect, Inc. v. Bunge, 632
F.3d 822, 826 (3d Cir. 2011). Under Federal Rule of
Civil Procedure 56, summary judgment is appropriate ―if
the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment
as a matter of law.‖ Fed. R. Civ. P. 56(a). Material facts
are those ―that could affect the outcome‖ of the
proceeding, and ―a dispute about a material fact is
12
‗genuine‘ if the evidence is sufficient to permit a
reasonable jury to return a verdict for the nonmoving
party.‖ Lamont v. New Jersey, 637 F.3d 177, 181 (3d
Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). In conducting our inquiry, we
consider the evidence in the light most favorable to the
nonmovant and draw all reasonable inferences in that
party‘s favor. Spence v. ESAB Group, Inc., 623 F.3d
212, 216 (3d Cir. 2010). Here, the District Court‘s
preemption and strict liability determinations were based
on questions of law; we review those dispositions de
novo. Deweese v. Nat’l R.R. Passenger Corp. (Amtrak),
590 F.3d 239, 244 n.8 (3d Cir. 2009).

IV

The Constitution‘s Supremacy Clause elevates
federal law above that of the states, U.S. Const. art. VI,
cl. 2, providing Congress with ―the power ‗to preempt
state legislation if it so intends,‘‖ Deweese, 590 F.3d at
245 (quoting Hi Tech Transp., LLC v. N.J. Dep’t of
Envtl. Prot., 382 F.3d 295, 302 (3d Cir. 2004)).
Preemption comes in three forms: express preemption,
field preemption, and implied conflict preemption.
Farina v. Nokia, Inc., 625 F.3d 97, 116 (3d Cir. 2010)
(citing Hillsborough Cnty., Fla. v. Automated Med.
Labs., Inc., 471 U.S. 707, 713 (1985)). Express
preemption occurs when a federal law ―contains language
so requiring.‖ Bruesewitz v. Wyeth Inc., 561 F.3d 233,
239 (3d Cir. 2009), aff’d, ---U.S.---, 131 S. Ct. 1068
13
(2011). The congressional enactment, in other words,
must be explicit about its preemptive effects. Deweese,
590 F.3d at 247 n.10; St. Thomas-St. John Hotel &
Tourism Ass’n v. Gov’t of the Virgin Islands, 218 F.3d
232, 238 (3d Cir. 2000) (explaining that express
preemption ―arises when there is an explicit statutory
command that state law be displaced‖). Field preemption
arises by implication when Congress regulates a domain
so pervasively that it leaves no room for state regulation.
See United States v. Locke, 529 U.S. 89, 111 (2000).
Finally, implied conflict preemption applies either where
it is impossible to comply with both state and federal
requirements, Hillsborough Cnty., 471 U.S. at 713, or
―where state law stands as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress,‖ Kurns v. A.W. Chesterton Inc.,
620 F.3d 392, 395–96 (3d Cir. 2010) (internal quotation
marks omitted).

Section 5125 of the HMTA contains a multi-
pronged preemption provision that, when applicable,
displaces an array of state and local law. 49 U.S.C. §
5125. Under subsection (a)(1), a non-federal regulation
is preempted if it ―is not possible‖ to comply with both
the HMTA and the non-federal requirement. Subsection
(a)(2) preempts a non-federal requirement that ―is an
obstacle to accomplishing and carrying out . . . a
regulation prescribed under [the HMTA].‖ Neither of
these provisions is applicable to the case at hand.
14
 Section 5125(b)(1) of the HMTA contains an
express preemption provision, which states,

[U]nless 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, a regulation prescribed under this
chapter, or a hazardous materials
transportation security regulation or
directive issued by the Secretary of
Homeland Security, is preempted.

This section then sets forth five subject areas that fall
within the provision‘s preemptive scope (i.e., the
―following subjects,‖ reference above):

(A) the designation, description, and
classification of hazardous material.

(B) the packing, repacking, handling,
labeling, marking, and placarding of
hazardous material.

(C) the preparation, execution, and use of
shipping documents related to hazardous
material and requirements related to the
number, contents, and placement of those

15
 documents.

(D) the written notification, recording, and
reporting of the unintentional release in
transportation of hazardous material.

(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)(A)–(E).

It is obvious from the face of the statute that §
5125(b)(1) expressly preempts non-federal requirements
that relate to, or are ―about,‖ the five subject areas set
forth in § 5125(b)(1)(A)–(E). Our interpretive task does
not end here, however, for even where an express
preemption provision is at issue, we must nevertheless
―identify the domain expressly pre-empted‖ by the
provision. Medtronic, Inc. v. Lohr, 518 U.S. 470, 484
(1996) (quoting Cipollone v. Liggett Group, Inc., 505
U.S. 504, 517 (1992)); see also Farina, 625 F.3d at 118
(explaining that a reviewing court must pinpoint ―the
scope of the preemption provision‖). We do so guided
by two precepts. ―First, ‗the purpose of Congress is the
16
ultimate touchstone in every pre-emption case.‘‖ Wyeth
v. Levine, 555 U.S. 555, 129 S. Ct. 1187, 1194 (2009)
(quoting Medtronic, 518 U.S. at 485). Second, we
assume ―‗that the historic police powers of the States
[are] not to be superseded by the Federal Act unless that
was the clear and manifest purpose of Congress.‘‖ Id. at
1194–95 (quoting Medtronic, 518 U.S. at 485). This
second guiding principle is often referred to as a
―presumption against preemption,‖ Deweese, 590 F.3d at
246 (citing Cipollone, 505 U.S. at 516), and it holds even
where an express preemption provision is in play,
Bruesewitz, 561 F.3d at 240; see also Bates v. Dow
Agrosciences LLC, 544 U.S. 431, 449 (2005) (stating that
―Congress does not cavalierly pre-empt state-law causes
of action‖ (internal quotation omitted)); but see Cuomo v.
Clearing House Ass’n, L.L.C., --- U.S. ---, 129 S. Ct.
2710, 2732 (2009) (Thomas, J., dissenting) (collecting
view of four justices that the presumption against
preemption does not apply when interpreting the scope of
an express preemption provision). If the preemptive
scope of the statute is clear, however, ―the presumption
against preemption can be overcome.‖ Bruesewitz, 561
F.3d at 240.

We begin, then, by seeking to discern Congress‘
intent. The plain wording of the preemption provision is
of paramount importance, for this ―necessarily contains
the best evidence of Congress‘ pre-emptive intent.‖
Chamber of Commerce v. Whiting, No. 09-115, slip. op.
17
at 9 (U.S. May 26, 2011) (quoting CSX Transp., Inc. v.
Easterwood, 507 U.S. 658, 664 (1993)). We may also
consider the ―structure and purpose of the statute as a
whole,‖ Medtronic, 518 U.S. at 486 (internal quotation
marks omitted), the larger regulatory scheme, Bruesewitz,
561 F.3d at 243, and, where uncertainty persists, the
statute‘s legislative history, Deweese, 590 F.3d at 247;
Bruesewitz, 561 F.3d at 244 (explaining that ―resort to
legislative history is appropriate ‗when necessary to
interpret ambiguous statutory text‘‖ (quoting BedRoc
Ltd., LLC v. United States, 541 U.S. 176, 187 n.8 (2004)
(plurality opinion))).

On its face, § 5125(b)(1) is an expansive
preemption provision. Am. Chemistry Council, 468 F.3d
at 817 (describing § 5125(b)(1) as a ―broader preemption
[provision] with respect to state or local efforts to
regulate specific, enumerated subjects‖). It preempts all
non-federal laws, regulations, orders, or requirements
that are ―not substantively the same as‖ corresponding
federal regulations. Our threshold concern, then, is to
identify the contours of the non-federal law, regulation,
order, or requirement at issue in the case. Once we have
done so, we must ascertain (1) whether § 5125(b)(1)
applies to the non-federal law, regulation, order, or
requirement we have identified, and (2) whether the non-
federal requirement is ―substantively the same as‖ the
conditions imposed by federal hazardous materials law.

What, then, are the contours of the non-federal
18
law, regulation, order, or requirement invoked by Roth?
Although his complaint runs through the standard
catalogue of common law tort actions—negligence, strict
liability, products liability, and breach of warranty—Roth
is, at bottom, claiming that Norfalco had a common law
duty to design a safer tank car. He alleges in his
complaint, for example, that the ―railroad tank cars
[were] dangerous and defective because [they] did not
contain components which would indicate pressure . . . or
valves . . . which would prevent acid from spraying onto
people . . . who were unloading‖ the cars. He claims that
the unloading process was ―ultrahazardous‖ because the
tank cars lacked a safety valve and pressure gauge. He
contends that Norfalco had a duty to ―plac[e] valves . . .
on the pipes to prevent acid from spraying onto
[unloaders],‖ and to ―plac[e] gauges on the car which
would inform [an unloader] of the pressure in the car.‖
And he argues that Norfalco warranted that a chemical
unloader could safely remove sulfuric acid from its tank
cars. The sum of these contentions, though pleaded
under ostensibly distinct common law theories, is the
same: Roth seeks to impose a design requirement that, if
successful, would require Norfalco to install an
additional safety valve and pressure gauge on each of its
tank cars. See Kurns, 620 F.3d at 398 n.8 (focusing on
the ―gravamen‖ of the claim rather than the common law
label appended to it by the plaintiffs). Roth‘s common
law claims—including his claim of strict liability—thus
constitute ―non-federal requirement[s]‖ under the
19
HMTA. See Riegel, 552 U.S. at 324 (holding that a
statute‘s ―reference to a State‘s ‗requirements‘ includes
its common-law duties‖); Premium Mortg. Corp. v.
Equifax Info. Servs., LLC, 583 F.3d 103, 106 (2d Cir.
2009) (stating that ―obligations that take the form of
common-law rules‖ are ―easily encompass[ed]‖ by a
provision that preempts state ―requirement[s]‖).

We next turn to whether § 5125(b)(1) applies to
the design requirement claim raised by Roth. Section
5125(b)(1)(A)–(E) describes five transport-related
covered subjects. The express preemption provision
covers any non-federal requirement ―about‖ one of these
five covered subjects. Roth‘s design requirement falls
squarely within the subject area set forth in §
5125(b)(1)(E): it concerns the ―design[]‖ of a ―package,
container, or packaging component that is . . . qualified
for use in transporting hazardous materials in
commerce.‖ Roth is, after all, attempting to impose a
design requirement on a chemical tank car, which is
considered a package, container, or packaging
component that is approved for use in transporting
sulfuric acid by rail. Design requirements of a hazardous
material package, container, or packaging component are
the exclusive domain of the HMTA. Roth does not
dispute this point; in fact, his counsel acknowledged at
oral argument that the proposed design requirement fell
within § 5125(b)(1)(E).

Lastly, we ask whether the tank car design
20
requirement urged upon us is ―substantively the same as‖
the HMR design requirements for packages, containers,
or packaging components qualified for use in
transporting hazardous materials in commerce. It quite
clearly is not. A non-federal requirement is ―not
substantively the same‖ unless it ―conforms in every
significant respect to the Federal requirement.‖ 49
C.F.R. § 107.202(d); see also H.R. Rep. No. 101-444, at
24 (1990) (―[I]t should be noted that states may maintain
and enforce laws, regulations, rules, standards or orders
that are the same as their Federal counterparts.‖). Roth‘s
design requirement would impose conditions beyond
those imposed by the HMR and, therefore, it does not
conform in every significant respect to the federal
regulatory scheme. 49 C.F.R. § 107.202(d); see Chlorine
Inst., 29 F.3d at 496 (concluding that state regulation was
―not substantively the same as‖ the relevant HMR
requirement when it imposed a condition not required by
federal regulation).

Roth‘s common law claims, which seek to impose
design requirements upon a package, container, or
packaging component used to transport hazardous
materials in commerce, are expressly preempted under
the plain meaning of § 5125(b)(1). Because the text of
the provision is clear, we need go no further to determine
the scope of Congress‘ preemptive intent. Nonetheless,
the structure of the HMTA, as well as the purposes
underlying its enactment, lend additional support to our
21
conclusion. See Bruesewitz, --- U.S. ---, 131 S. Ct. at
1078–79 (looking to structure and purpose of statute to
bolster conclusion regarding preemptive scope even
when text was clear).

The overriding aim of the HMTA, as explained
above, was to restructure a national environment in
which ―many States and localities ha[d] enacted laws and
regulations [that] var[ied] from Federal laws and
regulations pertaining to the transportation of hazardous
materials, thereby . . . confounding carriers . . .
attempt[ing] to comply with multiple and conflicting . . .
regulatory requirements.‖ Hazardous Materials
Transportation Uniform Safety Act of 1990, Pub. L. No.
101-615, § 2, 104 Stat. 3244, 3245 (1990). To rectify
this hodgepodge of jurisdictional conflicts, Congress
sought to establish ―a uniform, national scheme of
regulation regarding the transportation of hazardous
materials.‖ CSX Transp., 406 F.3d at 674 (Henderson, J.,
concurring). The resulting regulatory framework is
detailed and comprehensive, and it devotes significant
attention to, inter alia, the packages, containers, and
packaging components that routinely move across state
lines. Chemical tank cars, which serve as bulk containers
for hazardous materials, are subject to their own unique
set of detailed specifications. This is exactly as one
would expect given the motivation underlying the
HMTA; were each state or locality permitted to impose
its own tank car design requirements, carriers would be
22
faced with a ―patchwork‖ of multiple and potentially
conflicting jurisdictional mandates, with resulting
confusion over how to comply. See Kurns, 620 F.3d at
398 (holding that the Locomotive Inspection Act, 49
U.S.C. § 20701 et seq., preempted state common law tort
claims when Congress evinced a clear goal of uniform
railroad equipment regulation, and explaining that ―[i]f
each state had its own standards for liability for railroad
manufacturers, equipment would have to be designed so
that it could be changed to fit these standards as the trains
crossed state lines, or adhere to the standard of the most
restrictive states‖).

The HMTA preemption provision was, and is, the
linchpin in Congress‘ efforts to impose nationwide
regulatory uniformity. Harmon, 951 F.2d at 1581 (―[I]n
enacting new preemption standards, Congress expressly
contemplated that the Secretary would employ his
powers to achieve safety by enhancing uniformity in the
regulation of hazardous materials transportation.‖); see
also CSX Transp., 406 F.3d at 674 (Henderson, J.,
concurring) (―It was to promote this goal of uniform
safety regulation by the federal agencies that the
Congress enacted the HMTA preemption provision.‖);
Jersey Cent. Power, 772 F.2d at 1113 (―Congress
included this [preemption] provision to preclude a
multiplicity of State and local regulations and the
potential for varying as well as conflicting regulations in
the area of hazardous materials transportation.‖ (internal
23
quotation marks omitted)). Indeed, when it was initially
enacted, the HMTA preemption clause contained only a
general inconsistency standard—state or local
―requirement[s]‖ were preempted if ―inconsistent‖ with
federal regulations. Transportation Safety Act of 1974,
Pub. L. 93-633, § 112, 88 Stat. 2156. This, thought the
Senate Committee on Commerce, would serve ―to
preclude a multiplicity of State and local regulations and
the potential for varying as well as conflicting regulations
in the area of hazardous materials transportation.‖ S.
Rep. No. 93-1192, at 37. The Committee was mistaken.
Non-federal requirements continued to proliferate over
the next two decades, leading Congress to overhaul—and
significantly expand—the HMTA‘s preemptive scope.

Today there are three separate sections in § 5125
that mandate preemption. Two continue to operate
according to a rough consistency standard. See 49 U.S.C.
§ 5125(a)(1)–(2). The third, upon which we focus here,
preempts expressly so long as a covered subject is in
play. 49 U.S.C. § 5125(b)(1). The Secretary of
Transportation is also authorized to make preemption
determinations, 49 U.S.C. § 5125(d), and localities may
petition for a preemption waiver in order to avoid the
HMTA‘s preemptive sweep, 49 U.S.C. § 5125(e).

Absent from the HMTA preemption provision,
however, is a savings clause exempting common law
requirements from the bundle of those non-federal laws
and regulations displaced by the federal scheme. This is
24
important, for in Riegel v. Medtronic, Inc., the Supreme
Court held that unless there is some indication to the
contrary, ―reference [by a preemption clause] to a State‘s
‗requirements‘ includes its common-law duties.‖ 552
U.S. at 324. Congress may displace this default
condition by tempering a preemption provision with a
savings clause. See Williamson v. Mazda Motor of Am.,
Inc., --- U.S. ---, 131 S. Ct. 1131, 1135–36 (2011); Geier
v. Am. Honda Motor Co., Inc., 529 U.S. 861, 868–69
(2000). Thus, in Geier v. American Honda Motor Co.,
Inc., the Court held that state common law requirements
were not preempted by a federal motor vehicle regulation
that expressly preempted any non-federal safety standard
―not identical to the Federal standard.‖ 529 U.S. at 864
(quoting 15 U.S.C. § 1392(d)). The reason, said the
Court, lay in the presence of a savings clause that read,
―[c]ompliance with‖ a federal safety standard ―does not
exempt any person from any liability under common
law.‖ Id. at 868. By including such a clause, Congress
manifested an intent not to displace common law claims.
Id. In contrast, there is nothing in the HMTA to indicate
that Congress did not wish to preempt state common law
requirements. We are thus left with a robust preemption
provision that leaves little, if any, room for non-federal
regulation.

In sum, the structure and purpose of the HMTA
confirms what the text of § 5125(b)(1) makes plain: the
HMTA preempts state common law claims that, if
25
successful, would impose design requirements upon a
package or container qualified for use in transporting
hazardous materials in commerce. Each of Roth‘s
common law claims is therefore expressly preempted.
Our holding is, in this respect, more expansive than that
of the District Court, which concluded that the claim for
strict liability was not displaced by the HMTA. But this
claim, however branded, would lead to results precluded
by federal law. Thus, it is not outside § 5125(b)(1)‘s
preemptive scope.

Roth attempts to avoid this result by questioning
the very applicability of the HMTA to the case at bar. He
contends that the statute reaches only to matters of
―transport‖ in ―commerce,‖ a limitation that does not
encompass the accident at issue here. In other words,
Roth claims that when a consignee such as Glatfelter (or
its employee) unloads a hazardous material that has
reached its final destination, the HMTA does not apply
because the act of unloading is not ―transport‖ in
―commerce.‖ And the HMTA, Roth argues, has nothing
to say about such non-transport activities.

The HMTA defines ―transport‖ as ―the movement
of property, and loading, unloading, or storage incidental
to the movement.‖ 49 U.S.C. § 5102(13). At the time
Roth was injured, the phrase ―loading, unloading, or
storage incidental to the movement‖ was not defined.
The DOT has subsequently promulgated a final rule
defining this phrase. ―Unloading incidental to
26
movement‖ is now taken to mean, inter alia, ―emptying a
hazardous material from the bulk packaging after the
hazardous material has been delivered to the consignee
when performed by carrier personnel or in the presence
of carrier personnel.‖ 49 C.F.R. § 171.1(c)(3) (emphasis
added). In contrast, ―unloading incidental to movement‖
does not include

[u]nloading of a hazardous material from a
transport vehicle or a bulk packaging
performed by a person employed by or
working under contract to the consignee
following delivery of the hazardous material
by the carrier to its destination and departure
from the consignee‘s premises of the
carrier‘s personnel . . . .

49 C.F.R. § 171.1(d)(2). Roth claims that he falls within
this carve-out, for at the time of his injury, he was an
employee of a consignee (Glatfelter) unloading sulfuric
acid from a bulk packaging (the tank car) following
delivery by the carrier (Norfalco) and departure of the
carrier‘s employees. This, according to Roth, places the
circumstances surrounding his accident, and any common
law claims arising therefrom, outside the regulatory
scheme erected by the HMTA.

Roth‘s theory is creative but wrong. In his haste to
invoke the quoted portions of the HMR, Roth forgets that
we need not look beyond the text of a statute unless its
27
meaning is ambiguous. Chevron U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 844 (1984); Lee v.
Ashcroft, 368 F.3d 218, 222 (3d Cir. 2004). When the
meaning of statutory text is plain, our inquiry is at an
end. Restrepo v. Att’y Gen. of the United States, 617
F.3d 787, 792 (3d Cir. 2010); Steele v. Blackman, 236
F.3d 130, 133 (3d Cir. 2001). Here, the statute and its
applicability could not be more clear. Roth seeks to
impose a tank car design requirement. Section
5125(b)(1) expressly preempts any common law
requirement ―about‖ the design of a ―package, container,
or packaging component . . . qualified for use in
transporting hazardous materials in commerce.‖ Roth
concedes that Norfalco‘s tank cars are containers
qualified for use in transporting hazardous materials in
commerce. Thus, the HMTA plainly encompasses
Roth‘s common law claims. It is irrelevant what Roth
was doing at the precise moment of his injury. This only
makes sense, for it cannot be the case that the
comprehensive design requirements erected by the
HMTA cease to govern simply because the tank car was
emptied of its contents days after its delivery. The tank
car is, at all times, a container qualified for use in
transporting hazardous materials. The proposed design
requirement is expressly preempted.

V

For the reasons set forth above, we hold that the
common law claims raised by Roth are expressly
28
preempted by the HMTA. Accordingly, we will affirm
the order of the District Court granting summary
judgment in favor of Norfalco.

29