United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 27, 2005 Decided May 3, 2005
No. 05-5131
CSX TRANSPORTATION, INC.,
APPELLANT
v.
ANTHONY A. WILLIAMS, IN HIS OFFICIAL CAPACITY AS
MAYOR OF THE DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
On Emergency Motion for Injuction Pending Appeal and
for Motion for Summary Reversal
Carter G. Phillips argued the cause for the appellant. With
him on the motion for injunction and summary reversal were
Virginia A. Seitz, Irvin B. Nathan, Mary Gabrielle Sprague,
Sidney A. Rosenzweig, Kathryn E. Taylor, Peter J. Shudtz and
Paul R. Hitchcock.
Douglas N. Letter, Litigation Counsel, United States
Department of Justice, argued the cause for amicus curiae
United States of America in support of the appellant. With him
on the response were Kenneth L. Wainstein, United States
Attorney, Gregory G. Katsas, Deputy Assistant Attorney
General, Irene M. Solet, Attorney, and Jeffrey A. Rosen, General
Counsel, United States Department of Transportation, and Paul
Geier, Assistant General Counsel.
2
G. Paul Moates and Terence M. Hynes were on the response
of amicus curiae Norfolk Southern Railway Company in support
of the appellant.
Edward E. Schwab, Deputy Attorney General, Office of
Attorney General for the District of Columbia, argued the cause
for appellees Anthony A. Williams et al. With him on the
opposition were Robert J. Spagnoletti, Attorney General, and
Mary L. Wilson, Assistant Attorney General.
James R. Wrathall argued the cause for appellee Sierra Club.
With him on the opposition were Brian Boynton and James B.
Dougherty.
Before: HENDERSON, RANDOLPH and ROBERTS, Circuit
Judges.
Opinion for the court filed PER CURIAM .
Concurring opinion filed by Circuit Judge HENDERSON.
P ER CURIAM : The District of Columbia City Council (D.C.
Council) has passed an ordinance, the Terrorism Prevention in
Hazardous Materials Transportation Emergency Act of 2005
(D.C. Act), banning all shipments by rail or truck of certain
hazardous materials within 2.2 miles of the United States
Capitol. CSX Transportation, Inc. (CSXT) has filed an
emergency motion seeking reversal of the district court’s denial
of a preliminary injunction against enforcement of the D.C. Act.
Because we conclude that CSXT has satisfied the standards for
a preliminary injunction, we reverse the district court and
remand with direction to the district court to enter a preliminary
injunction.
I.
The D.C. Council passed the D.C. Act on February 1, 2005 in
an effort to reduce the risk of a terrorist attack on shipments of
hazardous materials near the United States Capitol. Mayor
3
Anthony Williams signed the D.C. Act on February 15, 2005.
The D.C. Act prohibits the shipment by rail or truck of
hazardous materials in specified categories, including
explosives, flammable gases, poisonous gases and other
poisonous materials (Banned Materials), within 2.2 miles of the
United States Capitol Building (Capitol Exclusion Zone)
without a permit from the D.C. Department of Transportation
(DCDOT). See D.C. Act § 4(a).1 Because the D.C. Act is
emergency legislation, it was passed on only one reading by the
D.C. Council, was not reviewed by the Congress and is effective
for only 90 days. See Home Rule Act §§ 412(a) (D.C. Code §
1-204.12); 602(c)(1) (D.C. Code § 1-206.02).2
On February 16, 2005, CSXT sued the District of Columbia
(District) and Mayor Williams, in his official capacity, in district
court, seeking a declaration that the D.C. Act is invalid and an
1
The D.C. Act provides that DCDOT may issue a permit for
rail or motor carrier transportation otherwise banned only upon
a showing that “there is no practical alternative route,” id. § 5(a),
and that DCDOT may condition any permit on the adoption of
safety measures, including time-of-day restrictions and the
payment of fees in exchange for operating rights. See id. § 5(a)
and (b). “Practical alternative route” is defined as any route
“(A) [w]hich lies entirely outside the Capitol Exclusion Zone”
and “(B) [w]hose use would not make shipment of the materials
in question cost-prohibitive.” Id. § 3(4).
2
On March 1, 2005, the D.C. Council passed the Terrorism
Prevention in Hazardous Materials Transportation Temporary
Act of 2005 (Temporary Act), which is substantively identical
to the D.C. Act but is not emergency legislation. Mayor
Williams signed the Temporary Act on March 17, 2005 and it
was transmitted to the Congress for review, pursuant to D.C.
Code § 1-206.02(c), on March 22, 2005.
4
injunction against its implementation and enforcement. CSXT
is a Class I freight railroad that operates a north-south rail line
from Florida to Boston and an east-west line from the District of
Columbia to Chicago and St. Louis. For decades, CSXT has
regularly transported Banned Materials on these two lines, both
of which pass through the Capitol Exclusion Zone. CSXT
alleges that the D.C. Act would require extensive rerouting of
Banned Materials to CSXT’s other rail lines, resulting in a
significant increase in the total miles over which such materials
travel and the total time the materials are in transit. See
Amended Complaint ¶¶ 71-73.
CSXT asserts the D.C. Act is preempted by the Federal
Railroad Safety Act (FRSA), 49 U.S.C. §§ 20101-20153.3 See
id. ¶ 98. Accordingly, on February 22, 2005 CSXT moved for
a preliminary injunction, seeking to enjoin enforcement of the
D.C. Act. In a Statement of Interest filed on February 25, 2005,
the United States made clear that it also believes the D.C. Act is
preempted by the FRSA. See Statement of Interest at 9-15. The
Sierra Club intervened to defend the validity of the D.C. Act.
On April 18, 2005 the district court denied the preliminary
injunction. Acknowledging that CSXT’s legal arguments are
“not trivial,” the court determined that on the record before it
CSXT is not likely to succeed on the merits. Id. at 61-63. It
also determined that the balance of equities favors the District
in light of the potential devastation that could occur in the event
of a terrorist attack on a railcar transporting Banned Materials
within the Capitol Exclusion Zone. Id. at 75. The same day the
3
Because we conclude that CSXT has a substantial likelihood
of success on the merits of this argument, this opinion does not
address CSXT’s other challenges to the D.C. Act under the
Hazardous Materials Transportation Act, the Interstate
Commerce Commission Termination Act and the Commerce
Clause of Article I, section 8 of the United States Constitution.
5
district court denied preliminary injunctive relief, CSXT filed an
emergency motion in this court, seeking reversal of the district
court’s order.4 This court held a hearing on the emergency
motion on April 27, 2005.
II.
In considering whether to grant preliminary injunctive relief,
the court must consider whether: (1) the party seeking the
injunction has a substantial likelihood of success on the merits;
(2) the party seeking the injunction will be irreparably injured if
relief is withheld; (3) an injunction will not substantially harm
other parties; and (4) an injunction would further the public
interest. See Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317-
18 (D.C. Cir. 1998); Washington Metro. Area Transit Comm’n
v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). The
test is a flexible one. “If the arguments for one factor are
particularly strong, an injunction may issue even if the
arguments in other areas are rather weak.” Cityfed Fin. Corp. v.
Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995).
We have often recognized that injunctive relief may be justified,
for example, “where there is a particularly strong likelihood of
success on the merits even if there is a relatively slight showing
of irreparable injury.” Id. We review the district court’s
weighing of the four factors under the abuse of discretion
standard and its findings of fact under the clearly erroneous
standard. Serono, 158 F.3d at 1318 (internal citations omitted).
To the extent the district court’s decision turns on questions of
law, however, our review is de nov o. Id. at 1318 (citations
omitted).
CSXT and the United States contend that CSXT has a
substantial likelihood of success on the merits of the argument
4
We do not address the other relief requested by CSXT in its
emergency motion.
6
that the D.C. Act is preempted by the FRSA. The Congress
enacted the FRSA to “promote safety in every area of railroad
operations and to reduce railroad-related accidents and
incidents.” 49 U.S.C. § 20101. Section 434 of the FRSA
mandates that throughout the United States “[l]aws, regulations,
and orders related to railroad safety and laws, regulations, and
orders related to railroad security shall be nationally uniform to
the extent practicable.” Id. § 20106. Section 20106 of the
FRSA delineates the circumstances under which a State may
nonetheless act. A State is permitted to enact a law “related to
railroad safety or security” until the United States Department
of Transportation (DOT) or the United States Department of
Homeland Security (DHS) issues a regulation “covering the
subject matter of the State requirement.” Id.5 Even after such
a federal regulation issues, a State may adopt a more stringent
law when “necessary to eliminate or reduce an essentially local
safety or security hazard” if it “is not incompatible” with the
federal regulation and “does not unreasonably burden interstate
commerce.” Id.
CSXT and the United States argue that DOT has “covered the
subject matter” addressed in the D.C. Act, i.e., the en route
security of hazardous materials transportation by rail, by issuing
a final rule, known as HM-232, addressing “Security
Requirements for Offerors and Transporters of Hazardous
Materials.”6 68 Fed. Reg. 14,510 (Mar. 25, 2003). HM-
5
CSXT argues that the District of Columbia is not entitled to
the statute’s safe harbor because it is not a “State.” Because we
conclude the D.C. Act fails to satisfy the three safe harbor
conditions in section 20106, we need not resolve the District’s
status as a State vel non.
6
FRSA preemption can apply even though HM-232 was
expressly promulgated pursuant to the Hazardous Materials
7
232 was enacted in response to security concerns arising from
the terrorist attacks of September 11, 2001 and subsequent
threats related to hazardous materials. See Notice of Proposed
Rulemaking, 67 Fed. Reg. 22,028, 22,028 (May 2, 2002); see
also 68 Fed. Reg. at 14,511 (“We believe that the new
requirements in this final rule will enhance the security of
hazardous materials in transportation and, thus, help to deter and
prevent terrorists from using hazardous materials in the
transportation system as weapons of destruction or
intimidation.”). Under HM-232, rail carriers (as well as motor
carriers) are required to develop and implement security plans
for transporting hazardous materials. See 49 C.F.R. § 172.800-
04. The security plans must address personnel security (such as
background checks), unauthorized access to hazardous
materials, and, most importantly, “the security risks of shipments
of hazardous materials . . . en route from origin to destination.”
Id. § 172.802 (emphasis added). The regulations are enforced
through civil penalties. See 49 U.S.C. § 5123; 49 C.F.R. §§
1.49(s), 1.53(b); 49 C.F.R. pt. 107, subpt. D, app. A.
To “cover the subject matter,” HM-232 must “substantially
subsume” the subject matter of the state law, not merely “touch
upon” or “relate to” it. See CSX Transp., Inc. v. Easterwood,
Transportation Act, 49 U.S.C. § 5101, et. seq. See CSX Transp.,
Inc. v. Easterwood, 507 U.S. 658, 663 n.4 (1993) (“[T]he plain
terms of § 434 do not limit the application of its express pre-
emption clause to regulations adopted by the Secretary pursuant
to FRSA. Instead, they state that any regulation ‘adopted’ by
the Secretary may have pre-emptive effect, regardless of the
enabling legislation.”); CSX Transp., Inc. v. Pub. Utils. Comm’n
of Ohio, 901 F.2d 497, 503 (6th Cir. 1990) (“In this case, the
decision of the district court, applying the FRSA preemption
provision to regulations promulgated under the HMTA, retains
the essential character and purpose of both statutes.”).
8
507 U.S. 658, 66 (1993). In asserting that HM-232 substantially
subsumes the subject matter of the D.C. Act, the United States
points out that DOT specifically considered and rejected
imposing particular security requirements, such as routing
restrictions in specific cities. See 68 Fed. Reg. at 14,511.
Compare 67 Fed. Reg. at 22,035 (proposed HM-232
contemplated routing restrictions) wit h 49 C.F.R. §
172.802(a)(3) (final HM-232 does not refer to routing
restrictions). Instead, DOT decided that security will best be
achieved by adopting performance standards and giving
railroads the flexibility to adjust their security plans to their
individual circumstances. See 68 Fed. Reg. at 14511 (“[T]he
flexibility provided by a performance standard permits a
company to implement a security plan that is tailored to its
specific circumstances and operations.”); id. at 14,514 (“There
is no ‘one-size-fits-all’ security plan that will be appropriate for
each company’s individual circumstances.”); id. at 14,515 (“We
continue to believe that, if it is to be effective, a regulation
mandating development and implementation of a security plan
must provide sufficient flexibility so that a shipper or carrier can
adapt its requirements to individual circumstances.”). Because
HM-232 requires a flexible, individually-tailored security plan
for each hazardous material transporter, including measures
aimed at en route security, we conclude that CSXT is
substantially likely to succeed on its claim that HM-232 covers
the subject matter of the D.C. Act.
In effect, the District’s complaint is not that the federal
government has not covered the subject matter of en route
security of rail transport of hazardous materials by HM-232;
rather, the District’s charge is that HM-232 inadequately does
so. See D.C. Supp. Opp. at 1 (“The United States delegated the
responsibility to CSX to protect hazardous cargo from terrorist
attack, and CSX has not taken adequate precautions to prevent
attacks.”); id. at 7 (suggesting HM-232 is not comprehensive);
see also Sierra Club Opp. at 2 (asserting security plans are “not
9
subject to any substantive federal requirements”); id. at 8
(suggesting security plans are insufficient). The FRSA
preemption provision, however, authorizes the court only to
determine whether the regulation covers the subject matter,
leaving it to DOT or DHS to gauge the efficacy of the security
measures based on the agency’s expertise. Neither the court nor
the District is authorized or equipped to measure off the
adequacy of either agency’s strategic determinations. If, as
appears likely, HM-232 covers the subject matter of hazardous
material rail transportation security, the FRSA permits the
District to enact a more stringent law only if it is “necessary to
eliminate or reduce an essentially local safety or security
hazard” and, then, only if the State law is “not incompatible with
a law, regulation or order of the United States Government,” and
“does not unreasonably burden interstate commerce.” 49 U.S.C.
§ 20106. It does not appear that the D.C. Act satisfies the three
conditions.
First, the D.C. Act likely does not address an “essentially
local safety or security hazard,” as required under the first safe
harbor condition of section 20106. The Congress intended that
this exception apply “when local situations are ‘not capable of
being adequately encompassed within uniform national
standards.’ ” Norfolk & Western Ry. Co. v. Pub. Utils. Comm’n
of Ohio, 926 F.2d 567, 571 (6th Cir. 1991) (quoting H.R. Rep.
No. 91-1194, at 11 (1970), reprinted at 1970 U.S.C.C.A.N.
4104, 4117); see also Nat’l Ass’n of Regulatory Util. Comm’rs
v. Coleman, 542 F.2d 11, 14-15 (3d Cir. 1976) (noting
“exception was designed instead to enable the states to respond
to local situations which are not statewide in character and not
capable of being adequately encompassed within uniform
national standards”). No one in this case has suggested that the
vulnerability of hazardous material passing through the Capitol
Exclusion Zone cannot be adequately addressed by national
standards. Instead, as noted above, the District and the Sierra
Club simply contend the DOT’s regulations have not done so.
10
Further, the purpose of the D.C. Act is to prevent attacks in the
vicinity of the United States Capitol by terrorists opposed to our
nation or its policies. As the United States has persuasively
urged: “The need to protect the United States Capitol and its
environs from terrorist attack is and could hardly be a more
quintessentially national concern . . . .” U.S. Mem. at 9. The
national scope of the problem is underscored by the ongoing
efforts of the Transportation Security Administration, in
cooperation with rail carriers, “to minimize security risks” and
“to assess, develop, and implement enhanced security measures
on the rail network, including measures specific to the D.C. Rail
Corridor.” Mem. Op. at 8; see also id. at 26 (describing “D.C.
Rail Corridor Project”).
Second, the D.C. Act appears to be “incompatible” with HM-
232. As noted earlier, HM-232 establishes a flexible regime
under which a carrier can tailor its security plan to “its specific
circumstances and operations.” See 68 Fed. Reg. at 14,511; see
also 49 C.F.R. § 172.802. The D.C. Act’s routing restriction
does not allow a carrier operating within the Capitol Exclusion
Zone to exercise the discretion expressly conferred by HM-232.
Third, it appears the D.C. Act does “unreasonably burden
interstate commerce.” In assessing the burden, it is appropriate
for us to consider the practical and cumulative impact were other
States to enact legislation similar to the D.C. Act. See S. Pac.,
325 U.S. at 774-75 (focusing on impact of similar state
legislation in striking down Arizona statute limiting train lengths
as unconstitutional burden on interstate commerce). This is not
a speculative exercise. The California Senate currently is
considering a bill that would ban hazardous shipments within
three miles of the city hall of any “[u]rban region,” defined as
any city of over 50,000 people. See California Senate Bill No.
SB 419 Amended (Mar. 31, 2005), cited in U.S. Memo. at 17.
As the United States asserts, “[i]t would not take many similar
11
bans to wreak havoc with the national system of hazardous
materials shipment.” U.S. Mem. at 17.
Given that the D.C. Act does not fall within the safe harbor
provided in section 20106, we conclude that CSXT has a strong
likelihood of success on the merits of its argument that the D.C.
Act is preempted by the FRSA. We note that the case for
preemption is particularly strong where, as here, “the State
regulates in an area where there has been a history of significant
federal presence.” United States v. Locke, 529 U.S. 89, 107
(2000) (concluding Congress had legislated in field of
international maritime commerce “from the earliest days of the
Republic”); see CSX Transp., Inc. v. City of Plymouth, 92 F.
Supp. 2d 643, 648 (E.D. Mich. 2000) (“There can be no doubt
that just as Congress has regulated ships and vessels since the
beginning of the Republic, it has similarly done so with respect
to our Nation’s rail system.”); CSX Transp., Inc. v. Pub. Utils.
Comm’n of Ohio, 901 F.2d 497, 499 (6th Cir. 1990) (discussing
evolution of federal regulation of hazardous materials
transportation by rail).
We further conclude that CSXT has sufficiently demonstrated
irreparable injury, given its strong likelihood of success on the
merits. See Cityfed, 58 F.3d at 747. According to the affidavit
of CSXT’s vice president for Operations Research and Planning,
rerouting trains transporting Banned Materials around the
District of Columbia, as the D.C. Act would require, will
“significantly decrease the capacity and flexibility of the CSXT
rail network” which “is currently operating near or at capacity.”
Gibson Aff. at 8. The affidavit detailed specific ways in which
complying with the D.C. Act would decrease the efficiency of
the CSXT system. Id. at 9-10. It would be exceedingly
speculative, particularly in light of the nature of a complex,
interdependent national rail system, to place a dollar figure on
the difference in value between the rail network CSXT presently
operates and the effectively smaller, more constrained network
12
that compliance with the D.C. Act would entail. Accordingly,
CSXT’s injury is properly considered irreparable. See
Danielson v. Local 275, 479 F.2d 1033, 1037 (2d Cir. 1973)
(“irreparable injury is suffered when monetary damages are
difficult to ascertain or inadequate”); see also Long Island R.R.
Co. v. Int’l Ass’n of Machinists, 874 F.2d 901, 911 (2d Cir.
1989) (upholding finding that “a general cessation of rail
service” constituted irreparable harm).7 With regard to the
remaining factors for preliminary injunctive relief, the United
States asserts that the rerouting required under the D.C. Act
creates security risks because it will increase the length of time
hazardous materials are in transit. See U.S. Mem. at 17 (citing
Federal Railroad Administration Track Safety Standards, 63
Fed. Reg. 33,992, 33,999 (June 22, 1998) (“[T]he risk of
releases of hazardous materials is reduced by minimizing the
time such shipments spend in transportation. It would be poor
policy to allow local governments to attempt to lower their risk
by raising everyone’s risk and by clogging the transportation
system.”)). Additionally, the United States asserts the D.C. Act,
7
CSXT also claims as irreparable injury the $2 to $3 million
annual cost of complying with the D.C. Act notwithstanding the
general rule that injury that “can be remedied with money
damages” is not irreparable. CSXT claims it could not recover
its costs from the District because the District enjoys eleventh
amendment immunity from money damages liability. See
Emerg. Mot. at 17. Eleventh amendment immunity, however,
extends only to States and our case law suggests that the District
is not a State for the purpose of the Eleventh Amendment. See
LaShawn A. by Moore v. Barry, 144 F.3d 847, 853, (D.C. Cir.
1998) (“The term ‘state’ in the Eleventh Amendment also has
been interpreted to include Puerto Rico, see De Leon Lopez v.
Corporacion Insular de Seguros, 931 F.2d 116, 121 (1st Cir.
1991), but not the District of Columbia. See LaShawn A. v .
Barry, 87 F.3d 1389, 1394 n.4 (D.C. Cir. 1996)”).
13
and similar bans proposed by other jurisdictions, would disrupt
“the national system of hazardous materials shipment.” U.S.
Mem. at 16-18. Of course, the court does not minimize the
calamitous consequences of a terrorist attack on a rail car
transporting Banned Materials through the District. The effect
of the D.C. Act, however, is simply to shift this risk, or at least
some of this risk, to other jurisdictions.
Weighing these factors, we conclude that a preliminary
injunction is warranted, especially in light of CSXT’s very high
likelihood of success on the merits. See Cityfed, 58 F.3d at 747.
Accordingly, we reverse the district court and remand with
direction to enter a preliminary injunction prohibiting
enforcement of the D.C. Act.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
I join the majority opinion but write separately to express my
view that the D.C. Act is likely preempted by the Hazardous
Materials Transportation Act (HMTA) as well as by the FRSA.
A “major purpose of the HMTA was the development of ‘a
uniform, national scheme of regulation’ regarding the
transportation of hazardous materials.” Chlorine Inst., Inc. v.
Calif. Highway Patrol, 29 F.3d 495, 496-97 (9th Cir. 1994)
(quoting S. Pac. Transp. v. Pub. Serv. Comm’n of Nev., 909 F.2d
352, 358 (9th Cir. 1990)); see also Nat’l Tank Truck Carriers,
Inc. v. Burke, 608 F.2d 819, 824 (1st Cir. 1979) (addressing
HMTA and stating: “[T]here is strong support for the notion that
a primary Congressional purpose intended to be achieved
through the legislation was to secure a general pattern of
uniform national regulations.”). It was to promote this goal of
uniform safety regulation by the federal agencies that the
Congress enacted the HMTA preemption provision. See Colo.
Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1580 (10th Cir.
1991) (“[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.”). The
preemption provision states:
[U]nless authorized by another law of the United States, a
requirement of a State, political subdivision of a State, or
Indian tribe is preempted if
(1) complying with a requirement of the State, political
subdivision, or tribe and a requirement 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 not
possible; or
(2) the requirement of the State, political subdivision, or
tribe, as applied or enforced, is an obstacle to accomplishing
and carrying out this chapter, a regulation prescribed under
2
this chapter, or a hazardous materials transportation security
regulation or directive issued by the Secretary of Homeland
Security.
49 U.S.C. § 5125(a). The D.C. Act’s ban on rail transport in the
Capitol Exclusion Zone appears to be “an obstacle to
accomplishing and carrying out . . . a hazardous materials
transportation security regulation,” namely Department of
Transportation regulation HM-232, for the same reason the
majority opinion finds the D.C. Act is likely “incompatible
with” HM-322 under the FRSA, see maj. op. at 10. By
prohibiting altogether transport of hazardous material through
the Capitol Exclusion Zone in the District of Columbia, the D.C.
Act circumscribes the discretion that the regulation expressly
confers on CSXT to develop its own individualized security plan
under 49 C.F.R. § 172.800, including “[m]easures to address the
assessed security risks of shipments of hazardous materials
covered by the security plan en route from origin to destination,”
id. § 172.802(a)(3). Cf. Chlorine Inst., Inc., supra (finding
obstacle in California Highway Patrol regulations governing
chlorine transport in state); Northern States Power Co. v. Prairie
Island Mdewakanton Sioux Indian Comty., 991 F.2d 458 (8th
Cir. 1993) (finding obstacle in tribe's requirement that shippers
obtain special license for each shipment of radioactive
substances crossing tribal lands); S. Pac., supra (finding
obstacle in Nevada regulations requiring rail carrier to obtain
annual permit before loading, unloading, transferring or storing
hazardous material on railroad property within state). The D.C.
Act therefore appears to constitute an obstacle to
implementation of HM-232 and thus to be preempted under the
HMTA, 49 U.S.C. § 5125(a)(2).