American Trucking Associations v. Boston

No. 81-628-MA (D. Mass. April 6, 1981)

The court preliminarily enjoins the City of Boston from enforcing certain rules governing the transportation of hazardous materials through city streets. Under the Hazardous Materials Transportation Act (HMTA) only those state rules that are inconsistent with federal regulations are preempted. The court rules that plaintiffs are likely to succeed on the merits in proving that the requirement that vehicles containing designated hazardous materials be affixed with certain decals and that drivers obtain and carry city permits is burdensome on commerce and preempted by the HMTA. However, the city's routing requirements and daytime curfew are not preempted by the HMTA. Applying a previous Department of Transportation ruling, the court finds that those rules are not inconsistent with the HMTA since Boston properly conferred with other jurisdictions. In addition, they are not an undue burden on commerce because of their extreme importance to public safety.

[The issues raised in this case are analyzed at 12 ELR 10075 — Ed.]

Counsel for Plaintiffs
Roger C. Wendell
Nix & Wendell
One McKinley Sq., Boston MA 02109
(617) 227-0101

Counsel for Defendants
John R. Devereaux, Ass't Corp. Counsel
City of Boston Law Dep't
City Hall, Boston MA 02201
(617) 725-4034

[12 ELR 20789]

Mazzone, J.:

Memorandum and Order

This action was filed on March 2, 1981, seeking injunctive and declaratory relief from the implementation of an ordinance and regulations adopted by the City of Boston, Massachusetts concerning the highway transportation of hazardous materials.The plaintiffs, national and state trucking associations, claim that the challenged regulations conflict with the Hazardous Materials Transportation Act (HMTA), 49 U.S.C. § 1801 et seq., burden commerce, and violate due process and equal protection guarantees of the Constitution. The defendants are the City of Boston, Mayor Kevin H. White, Fire Commissioner George H. Paul, Commissoner of Health and Hospitals David L. Rosenbloom, and Police Commissioner Joseph M. Jordan.

A temporary restraining order was issued on March 3, 1981. After application by both parties, the temporary restraining order was extended to March 20, 1981, then further extended to March 27, 1981. On March 19, 1981 the Department of Transportation (DOT) issued Inconsistency Ruling IR-3, finding certain of the regulations inconsistent with the HMTA.

The plaintiffs now move for a preliminary injunction pending an expedited trial in 30 days. A full evidentiary hearing was held on April 1, 1981. The parties have compiled a comprehensive record including memoranda, affidavits, and numerous reports and studies.

In order to obtain preliminary injunctive relief pending trial, a plaintiff must satisfy four criteria:

(1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversly affected by the granting of the injunction.

Planned Parenthood League v. Bellotti, No. 80-1580 (1st Cir. Feb. 9, 1981), slip op. at 5 (citation omitted). We examine each of these factors in turn.

The trucking associations claim they will be irreparably harmed by the burdens of complying with the regulations pending trial. The regulations apply only to the transportation in bulk of large, specified quantities of liquified petroleum gas, liquified methane, liquified hydrogen, certain other flammable liquids, and certain flammable solids, generally so large as to require use of a tank truck. Also covered is the transportation in any quantity of certain explosives, poisonous gases, and radioactive materials.¹ Since they reach only the largest and most dangerous substances, the regulations affect few carriers who are not already subject to federal and state restrictions.

The challenged rules prohibit the use of streets in Boston's Downtown Area for transportation of the described hazardous materials on weekdays between the hours of 6 a.m. and 8 p.m. The rules also prohibit the use of city streets, in any area within the city and at any time, for transportation of hazardous materials whose point of origin or destination is outside the city. On application, exceptions to these regulations may be made by permit, specifying routes and other limitations, after a showing of compelling need consistent with the public interest.

Trucks operating pursuant to a permitted exception to the regulations, as described above, must carry a permit and display a decal at all times. Procedure for permit application, review of denials, renewal, revocation, and fees are provided. Additional decals must be displayed on all regulated vehicles, whether or not they have sought and received a permit to operate outside the rules, to identify the product carried and to indicate when a vehicle otherwise marked for hazardous materials is carrying only residual quantities of hazardous material.

Regulated vehicles must comply with existing local and federal traffic regulation and must additionally keep 300 feet apart from each other, drive with headlights on, and use only streets designated as Major Thoroughfares.

Accidents must be reported to the Fire Commissioner. Failure to comply with any of the regulations is punishable by a fine of up to $1,000 and imprisonment for up to a year.

This regulatory scheme, although it applies only to a small portion of the trucks traveling through Boston, will necessarily impose burdens on the trucking industry. After a careful review of the record, we find the greatest of these burdens to be the requirement that every truck subject to the regulations carry identification decals and that every truck operating pursuant to a permitted exception carry a decal and a copy of the permit (Regulations §§ 7.1.6, 7.1.7, and 8.1.7). According to the Affidavit of F. Edward Barry, Boston Terminal manager for Ryder Truck Lines, Inc., decals and permits would be required for the company's entire national fleet of 5,000 trailers and 1,000 tractors, any of which could be used for transporting hazardous materials in Boston. The choice between equipping each vehicle with appropriate permits and decals or forgoing hazardous materials shipping through Boston would cause irreparable harm to motor carriers.

The second factor we must consider is the harm likely to be inflicted on the defendants, the City of Boston and its officials, if the regulations are enjoined pending trial. The added 30-day delay that would result from a preliminary injunction is small when compared to the year that intervened between the passage of the ordinance on December 19, 1979 and the effective date of the regulations [12 ELR 20790] on March 2, 1981. The city itself has twice acquiesced to extensions of our temporary restraining order, originally scheduled to expire on March 13, 1981. Even a 30-day delay, however, poses risks to the public that we cannot ignore.

Boston's unique geography and the accidents of its historical development have resulted in a highway system that is peculiarly vulnerable to the dangers of transporting hazardous materials. A major interstate highway, U.S. route I-93, passes through the City of Boston and through its downtown area, the most densely populated area in New England. Because of Boston's early growth, portions of the highway section passing through the city are underground or elevated up to 30 feet above city streets.² Trucks carrying hazardous materials must, under existing law, leave the highway before entering the Dewey Square tunnel and navigate narrow and congested downtown streets before reentering the highway. North of the tunnel, trucks must pass above the city's main downtown area, with a working day population density of 99,625 person per square mile.³ From these facts, it is obvious that the continued transportation of flammable, explosive, and radioactive materials through the City of Boston poses serious risks to the city and to the public.

The last factor which we must consider in our ruling on the preliminary injunction is the plaintiffs' likelihood of success on the merits. The plaintiffs' main challenges to the regulations are that they are preempted under the HMTA by reason of being inconsistent with federal law and that they impose an unreasonable burden on interstatecommerce in violation of the Commerce Clause.

The HMTA provides for federal regulation, by the DOT, of the interstate transportation of hazardous materials. The Act, however, expressly permits state regulations that do not conflict with the HMTA.⁴ Such consistent state regulations are not pre-empted by the HMTA. Although the Act is silent as to who is to make the determination of inconsistency, the First Circuit has held that "either the agency or the courts" may so determine and that "a district court is not required to defer to the DOT for determinations of inconsistency." National Tank Truck Carriers, Inc. v. Burke, 608 F.2d 819, 822 (1st Cir. 1979). Prudential considerations of deference to the Executive Branch may nevertheless be appropriate here, where the DOT has actually ruled that the ban on through travel and the "curfew" regulations are inconsistent with the HMTA.

The DOT's ruling, however, states:

We think it possible that use of routes which avoid Boston may be appropriate. For consistency with the HMTA, however, Boston must act through a process the adequately weighs the full consequences of its routing choices and ensures the safety of citizens is other jurisdictions that will be affected by its rules. We do not believe that Boston possesses institutions or has used analytical methods that can adequately and reliably accomplish this. Consequently, we have concluded that to the extent that they prevent motor vehicles from transporting hazardous materials into or through that jurisdiction, the Boston implementing regulations may cause a delay or a diversion of traffic through other jurisdictions and in this respect are inconsistent with the HMTA.

Inconsistency Ruling IR-3 at 18 (March 19, 1981). The regulation thus may not be inconsistent if the City of Boston has acted through a process that ensures the representation and approval of other jurisdictions. In fact, the regulations were submitted to a state agency, the Department of Public Safety, for approval and were commented upon by the Fire Marshalls of neighboring jurisdictions, information not made available to the DOT. We therefore believe that we may find the regulations fully consistent with federal law, to the extent that they require the skirting of Boston and the curfew on its Downtown Area, without rejecting the considered and expert views expressed by the DOT.⁵

The question of the regulations' burden on commerce requires a balancing of safety benefits with burdens on interstate commerce. Raymond Motor Transportation Co., Inc. v. Rice, 434 U.S. 429 (1978). Again, the regulations' blanket decal and permitting requirements for all vehicles appear burdensome on this record, while their prohibition of unnecessary through traffic and working day downtown traffic appears less burdensome to the trucking industry and of extreme importance to public safety.

After carefully studying all the regulations in light of the factors that we must consider in ruling on preliminary injunctions, we find that the plaintiffs have met their burden to show that preliminary injunctive relief is warranted for §§ 7.1.6, 7.1.7, and 8.1.7, requiring each affected vehicle to carry decals and copies of necessary permits. To that extent, the motion for preliminary injunction is granted.

As to the remainder of the regulations, including the traffic restrictions and the requirement that trucking companies obtain permits to operate contrary to the traffic restrictions, the motion for preliminary injunction is denied. This matter is set down for expedited trial.

SO ORDERED.

1. These materials are described more precisely at 49 C.F.R. §§ 173.53, 173.88, 173.326, and 172.403.

2. After route I-93 enters Boston from the south, in a section called the Southeast Expressway, it passes into the Deway Square tunnel for approximately 1/4 mile. Soon thereafter the highway becomes elevated, in a section called the John F. Fitzgerald Expressway. After passing over the major downtown area of the city, between the business district and the historic North End, and from one to three blocks from monuments such as the Custom House, Fanueil Hall, and Quincy Market, the highway crosses a bridge over the Charles River and passes in elevated sections over Charlestown as it continues northwest. Another highway section splits from I-93 and runs northeast towards route I-95, crossing the Mystic River via the Tobin Bridge.

3. Figures, derived from 1975 State Census, reported in E. COMER, BOSTON REDEVELOPMENT AUTHORITY REPORT (April 1977). See Defendants' Memorandum Appendix I (filed March 3, 1981).

4. Conflicting state regulations are also permitted if the Secretary of DOT makes an exemption:

(a) General. — Except as provided in subsection (b) of this section, any requirement, of a State or political subdivision thereof, which is inconsistent with any requirement set forth in this title, or in a regulation issued under this title, is preempted.

(b) State laws. — Any requirement, or a State or political subdivision thereof, which is not consistent with any requirement set forth in this title, or in a regulation issued under this title, is not preempted if, upon the application of an appropriate state agency, the Secretary determines, in accordance with procedures to be prescribed by regulation, that such requirement (1) affords an equal or greater level of protection to the public than is afforded by the requirements of this title or of regulations issued under this title and (2) does not unreasonably burden commerce. Such requirement shall not be preempted to the extent specified in such determination by the Secretary for so long as such State or political subdivision thereof continues to administer and enforce effectively such requirement.

49 U.S.C. § 1811(a), (b).

5. See 49 C.F.R. § 397.9(a), requiring vehicles with hazardous cargo to avoid "heavily populated areas, places where crowds are assembled, tunnels, narrow streets, [and] alleys" unless no practicable alternative exists.