PHMSA Rules Tort Claim for Haz Mat Package Warning Preempted

The USDOT's Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a ruling, published in today's Federal Register, which preempts a common law tort action for design, manufacture and marking (including warnings) for a haz mat package.

The underlying event was the explosion of a DOT specification 39 cylinder, which exploded in January 2003 when placed in 180 deg. water. The explosion killed Kenneth Elder, whose survivors brought a product liability action against the cylinder manufacturer.

PHMSA's ruling came after the manufacturer petitioned the agency to make a preemption ruling on the underlying tort claims. The Hazardous Materials Transportation Act gives the agency authority to make such rulings, under 49 U.S.C. 5125(d).

Under the HMTA, claims relating to design, manufacture and labeling are preempted if the "non-federal requirement (i.e. a lawsuit seeking to impose an additional warning) is not "substantively the same" as federal regulation under the haz mat act. This is a somewhat different standard than preemption under the Federal Rail Safety Act (FRSA) - 49 U.S.C. 20106 - which permits more stringent state regulation covering the same subject matter as federal rail regulations if the state regulation is meant to address a local safety hazard and does not burden interstate commerce.

PHMSA determined that any "state requirement, including a State's common law" which is not substantively the same as the federal regulations on the design, manufacturing, or marking of a haz mat package is preempted, and thus, the underlying claim that Mr. Elder's death was a result of an improper design, marking, or warning of the cylinder was preempted. PHMSA did emphasize, however, that the HMTA preemption provision does not insulate anyone from violating a haz mat regulation or when the packaging does not conform to a specification under the haz mat regulations.

The procedure utilized by the defendant manufacturer, filing an administrative petition with PHMSA seeking a preemption ruling, is interesting. Unlike the FRSA, the HMTA specifically permits PHMSA to make a preemption decision on the legal claims brought Mr. Elder's survivors. So, in effect, an administrative agency has made a preemption decision which presumably will end a legal case pending in the Courts.