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New York, City of v. Department of Transp.

Citation: 19 ELR 20594
No. No. 87 Civ. 1443 (MGC), 700 F. Supp. 1294/(S.D.N.Y., 12/08/1988)

The court holds that under the Hazardous Materials Transportation Act (HMTA), the Department of Transportation (DOT) may not require New York City to make a threshold showing of exceptional circumstances when it seeks a DOT determination that the HMTA does not preempt city regulations. New York City's Health Code bans the transportation of spent nuclear fuel through the city without an emergency certificate from the health commissioner, conflicting with DOT regulations authorizing spent nuclear fuel from Long Island to be carried by truck through New York City, since all roads from Long Island to the mainland pass through New York City. The city proposed shipment by boat from Long Island instead. The court first holds that HMTA § 112(b) does not mandate a threshold showing of exceptional circumstances for DOT to determine that local regulations are not preempted. The language of the statute makes no reference to a threshold inquiry. Although DOT's construction of a statute it is charged to administer is entitled to considerable deference, the language of HMTA § 112(b) is not susceptible to requiring a threshold showing, and DOT's interpretation of the HMTA in 1976, soon after its enactment, included no requirement for a threshold showing. Moreover, DOT has generally restated that position administratively since 1976. Although there is an ambiguous discussion of "exceptional circumstances" in the Senate committee report on the HMTA, the legislative history of the HMTA does not reveal a clearly expressed congressional intent contrary to the plain words of the statute.

The court next holds that the HMTA does not grant DOT discretion to add a threshold requirement of exceptional circumstances to the process of determining that local regulations are not preempted. Although DOT may prescribe procedural regulations, adding a threshold requirement is substantive, not procedural. Moreover, although the HMTA grants DOT discretion to grant or deny non-preemption applications, DOT must do so according to the HMTA's standards.

[Previous opinions in related litigation appear at 12 ELR 20461, 20864; 13 ELR 20823.]

Counsel for Plaintiff
Peter L. Zimroth
Corporation Counsel for the City of New York
100 Church St., New York NY 10007
(212) 566-4515

Counsel for Defendants
Rudolph W. Guiliani, U.S. Attorney, Paul K. Milmed, Ass't U.S. Attorney
One St. Andrew's Plaza, New York NY 10007
(212) 791-0008