2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-4-2007

NY Susquehanna v. Jackson

Precedential or Non-Precedential: Precedential

Docket No. 07-1675

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-1675

 

NEW YORK SUSQUEHANNA AND WESTERN

RAILWAY CORPORATION,

Plaintiff/Fourth Party Defendant

v.

LISA P. JACKSON, in her official capacity as 

Commissioner of the New Jersey Department of

Environmental Protection; 

NEW JERSEY MEADOWLANDS COMMISSION;

ROBERT R. CEBERIO, in his official capacity as Executive

Director of the New Jersey Meadowlands

Commission; JAMES ANZEVINO, in his official capacity as

a Commissioner of the Meadowlands Commission;

MICHAEL J. GONNELLI, in his official capacity as a

Commissioner of the New Jersey Meadowlands Commission;

LEONARD R. KAISER, in his official capacity as a

Commissioner of the New Jersey Meadowlands Commission;

MIA M. MACRI, in her capacity as a Commissioner of the

New Jersey Meadowlands Commission;

ELEANORE NISSLEY, in her official capacity as 

a Commissioner of the New Jersey Meadowlands
2

Commission; CHARLES A. RICHMAN, in his official

capacity as a Commissioner of the New Jersey Meadowlands

Commission; ARLENE WALTHER, in her 

official capacity as a Commissioner of the New Jersey

Meadowlands Commission,

Appellants

Defendants/Counterclaimants/

Third Party Plaintiffs

v.

CARDELLA TRUCKING CO., INC.; CROSSROADS

RECYCLING, INC.; HUDSON-NATIONAL, LLC; MHF

LOGISTICAL SOLUTIONS, INC.;

MILLENIUM RESOURCE RECOVERY, LTD.; 

ONTRACK LOADING COMPANY, INC.;

PRECISE CONSTRUCTION CONTRACTING, INC.;

RAIL-TECH, LLC.; SCOTT EXCAVATING, LLC; SLANE

RAIL TRANSPORT, LLC; SUSQUEHANNA BULK

SYSTEMS; X-PRESS RAIL TRANSFER, LLC d/b/a 94th

Street Rail Transfer, LLC,

Third Party Defendants

v.

SLANE RAIL TRANSPORT, INC.,

Fourth Party Plaintiff
Honorable Norma L. Shapiro, Senior District Judge for *

the Eastern District of Pennsylvania, sitting by designation.

3

 

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 05-cv-04010)

District Judge: Honorable Katharine S. Hayden

 

Argued July 10, 2007

Before: AMBRO and HARDIMAN, Circuit Judges,

SHAPIRO, District Judge *

 (Opinion filed September 4, 2007) 

 

Stuart Rabner

 Attorney General of New Jersey

Nancy Kaplen

 Assistant Attorney General

Kevin P. Auerbacher (Argued)

 Deputy Attorney General

Jung W. Kim

 Deputy Attorney General

R.J. Hughes Justice Complex

25 Market Street, P.O. Box 093

Trenton, NJ 08625-0093
4

 Counsel for Appellants

G. Paul Moates, Esquire (Argued)

Paul A. Hemmersbaugh, Esquire

Matthew J. Warren, Esquire

Sidley Austin LLP

1501 K. Street, N.W.

Washington, DC 20005

Counsel for Appellee

NY Susquehanna and Western Railway Corp.

John M. Scagnelli, Esquire (Argued)

Kathleen J. Devlin, Esquire

Scarinci & Hollenbeck, LLC

1100 Valley Brook Avenue, P.O. Box 790

Lyndhurst, NJ 07071-0790

Counsel for Appellee

Third-Party Defendant

MHF Logistical Solutions, Inc.

Carter H. Strickland, Jr., Esquire (Argued)

Rutgers Environmental Law Clinic

123 Washington Street

Newark, NJ 07102-3094

Counsel for Amicus Curiae Appellant

Raritan Baykeeper, Inc., Hackensack Riverkeeper, Inc.

and Pinelands Preservation Alliance
5

Harold L. Segall, Esquire

Beveridge & Diamond, P.C.

1350 I Street N.W., Suite 700

Washington, DC 209995-3311

Stephen M. Richmond, Esquire

Marc J. Goldstein, Esquire

Beveridge & Diamond, P.C.

45 William Street, Suite 120

Wellesley, MA 02481

Counsel for Amicus Curiae Appellant

National Solid Wastes Management Association

Susan Shinkman, Esquire

Richard P. Mather, Sr., Esquire

Susan M. Seighman, Esquire

Commonwealth of Pennsylvania,

Department of Environmental Protection

Rachel Carson State Office Building

P.O. Box 8464

Harrisburg, PA 17105-8464

Counsel for Amici Curiae Appellant

Commonwealth of Pennsylvania, Commonwealth of

Massachusetts, State of New York, State of Maine, and

State of Colorado

Christine D. Petruzzell, Esquire

Wilentz, Goldman & Spitzer

90 Woodbridge Center Drive
6

P.O. Box 10, Suit 900

Woodbridge, NJ 07095

 Counsel for Appellees

 OnTrack Loading Co., Cardella Trucking Co.

 

OPINION OF THE COURT

 

AMBRO, Circuit Judge 

Shipping solid waste to Midwestern landfills has become

big business—particularly in places like New Jersey where

capacity at in-state landfills is scarce. Railroads are prime

beneficiaries of the increased demand for the means of shipping

waste across the country. Many railroads accommodate this

demand by building facilities within their rights-of-way for the

storage and loading of waste, which often is brought to the

loading facility by truck. As one might imagine, transferring

solid waste from truck to rail car is not the cleanest of

businesses, and so the State of New Jersey has tried to regulate

it. Railroading, however, is historically the subject of federal

regulation, so any state regulation affecting it raises the question

of preemption. Because we conclude that the District Court’s

factfinding does not support its conclusion that all of the State’s

environmental regulations at issue are preempted here, we

remand for consideration of each regulation individually.
 “Transloading” is a term of art in the bulk transportation 1

industry. It means “[t]ransferring bulk shipments from the

vehicle/container of one mode to that of another at a terminal

interchange point.” U.S. Dep’t of Transp., Fed. Highway

Admin., Freight Prof’l Dev. Prog., Freight Glossary, available

at http://ops.fhwa.dot.gov/freight/FPD/glossary/index.htm. In

the context of this case, it refers to transferring solid waste from

trucks (which carried it from its point of origin) to Susquehanna

rail cars (for carriage to landfills).

7

I. Facts and Procedural History

In business since the mid-19th century, the New York

Susquehanna and Western Railway Corporation

(“Susquehanna”) operates 400 track-miles in New York, New

Jersey, and Pennsylvania. This dispute centers on activities at

five of its New Jersey solid waste transloading facilities.1

Four of the facilities at issue dealt primarily or

exclusively in solid waste generated at construction and

demolition sites (“C&D waste”). Susquehanna built these

facilities itself and either leased or owned the land. At each

facility, Susquehanna sold most of its shipping capacity to a

primary customer. These primary customers, known as

“shippers,” acted as middlemen between the generators of waste

and the railroad. For a fee, they took title to C&D waste from

the operators of the sites that generated it and hauled it by truck

to Susquehanna’s C&D transloading facilities. They then paid
 Susquehanna notes that the facilities are now much 2

cleaner than they were when they opened. Given the question

presented (to what extent the State may regulate the facilities

under federal railroad law), we believe that Susquehanna’s

voluntary efforts to clean up the facilities, while perhaps

laudable, are not relevant to our disposition of the case.

8

Susquehanna to load the waste onto rail cars and ship it to outof-state landfills (which they paid to take final title to the waste).

Because the shippers’ value added was their ability to move

waste efficiently from C&D sites to landfills, they used

guaranteed-capacity contracts with Susquehanna to ensure that

they could do so. Rather than operating the transloading

facilities itself, Susquehanna hired a loading company to unload

the trucks bringing in the waste, oversee its storage, and load it

onto rail cars. 

The fifth facility dealt only in contaminated soil, which

was stored in sealed containers and emptied directly into sealed

rail cars. The loading agent at that facility was a Susquehanna

subsidiary, and the shipper had an exclusive contract with

Susquehanna. Because the facility catered to only one customer,

that customer controlled access to the facility.

At least initially, the transloading facilities were a mess.2

Nearby residents complained that their houses and yards were

covered in dust and grime, the noise was excessive, and the

wastewater and stormwater runoffs were dirty. Of equal (if not
9

more) concern to state officials was that the facilities posed, in

the officials’ judgment, potentially deadly fire hazards. The

pollution and its perceived danger caused a public outcry, and

New Jersey officials responded by promulgating a series of

health, safety, and environmental rules that have come to be

known as the “2D regulations”. See N.J.A.C. § 7:26-2D.1.

For transloading facilities that deal only in containerized

solid waste, the 2D regulations require that: 

• the rail carrier provide the State with a

narrative from an officer of the rail carrier

describing the facility operations and

certifying that containers will not be

opened and that employees, the public or

the environment will not be exposed to

solid waste except as allowed in

accordance with state law;

• nonputrescible [not decaying] solid waste

not remain at the rail facility for more than

10 days, putrescible [decaying] solid waste

for not more than 72 hours, and nonhazardous liquid waste in sealed containers

not more than 180 days;

• solid waste received, stored or transferred

at the rail facility be contained in sealed
10

containers that do not leak any liquids or

solid materials and are not opened for any

purpose at the facility, except that a

container holding liquid waste may be

opened briefly for the purpose of sampling

the liquid provided the container is

immediately resealed;

• the operation not result in the migration of

odors outside the confines of the rail

carrier’s property;

• all solid waste containers staged or stored

at the facility be secured at all times in a

manner that prevents unauthorized access

to the containers and their contents;

• an adequate water supply and adequate

fire-fighting equipment be maintained or

be readily available to extinguish any and

all types of fires;

• solid waste vehicles not be queued or

staged on any public roadway;

• the queuing and staging of solid waste

vehicles be conducted so as to prevent

traffic backups and related traffic hazards
11

on access roads servicing the facility;

• facilities and all appurtenances, other than

those owned or operated by rail carriers,

including vehicles while on-site, be

positioned and buffered in such a manner

that sound levels generated by the

operation not exceed limits established

pursuant to noise control rules;

• only solid waste vehicles properly

registered and displaying the appropriate

registration number and solid waste decal

be admitted at the facility;

• the State’s designated representatives and

inspectors be admitted to inspect any

building, or any other portion of the rail

facility, at any time;

• any release or discharge of any solid waste

that would harm human health and the

environment at the facility be immediately

reported by the facility operator or its

designee to the State;

• an on-site emergency coordinator be

designated who will be available during all
 Because much of the language in the regulations is 3

technical and unnecessary for our purposes, we have

paraphrased them rather than quoting them directly.

 “Tipping” refers to the process of unloading waste from 4

a truck into a storage facility. The “tipping floor” is the place

where the waste is placed after it is unloaded from a truck and

before it is loaded onto a rail car. Cf. LaFleur v. Whitman, 300

F.3d 256, 259–60 (2d Cir. 2002).

12

hours of operation for the purpose of

handling emergency situations, such as,

but not limited to, spills, discharges or

releases of solid wastes at the facility; and

• the facility maintain daily records of waste

and submit quarterly reports within 20

days of the end of each calendar quarter

summarizing waste receipts.

See generally N.J.A.C. § 7:26-2D.1(c). 

3

For facilities that deal in waste that is not confined to

sealed containers, the regulations provide that:

• all facility processing, tipping, sorting, 4

loading, storage and compaction of

materials (that is, solid waste and mixtures

of solid waste and recyclable materials)
13

occur within the confines of an enclosed

building that complies with all

requirements of the Uniform Construction

Code;

• the facility have concrete or equivalent

tipping floors or ramps to ensure proper

containment and channeling of wastewater

to sanitary sewer connections or holding

tanks and be constructed to withstand

heavy vehicle usage, in compliance with

applicable rules regarding the discharge of

wastewater and the use of holding tanks;

• the facility have a system that collects,

stores, and properly disposes of

wastewater generated during normal

operations, including wash-out and

cleaning of equipment, trucks, and floors,

in compliance with the applicable rules

regarding wastewater and stormwater

management;

• the operator clean each area where waste

has been deposited or stored within each

24-hour period;

• no waste be stored overnight without
14

effective treatment to prevent odors

associated with putrefaction;

• the facility property surrounding the actual

waste management area be maintained free

of litter, debris, and accumulations of

unprocessed waste, process residuals, and

effluents, and methods (such as fencing) of

effectively controlling windblown papers

and other lightweight materials be

implemented;

• methods of effectively controlling dust be

implemented in order to prevent migration

outside the enclosed building and off-site;

• the operation not result in the migration of

odors outside the confines of the enclosed

building;

• an adequate water supply and adequate

fire-fighting equipment be maintained or

be readily available to extinguish any and

all types of fires;

• the operator effectively control insects,

other arthropods and rodents at the facility

by means of a program implemented by an
15

applicator of pesticides, certified in

accordance with the New Jersey Pesticide

Control Code;

• the facility operate certified scales for the

reporting requirements for waste

transported by trucks;

• facilities’ on-site roadways and storage

areas have concrete or asphalt paving in

those areas subject to vehicle loading and

unloading activities;

• the facility not queue or stage solid waste

vehicles on any public roadway;

• the queuing and staging of solid waste

vehicles be conducted so as to prevent

traffic backups and related traffic hazards

on access roads servicing the facility;

• the facility and all appurtenances be

positioned and buffered in such a manner

that sound levels generated by the

operation shall not exceed limits

established pursuant to applicable noise

control rules;
16

• only solid waste vehicles properly

registered and displaying the appropriate

registration number and solid waste decal

be admitted for loading or unloading of

any solid waste at the facility;

• the facility designate a secure area under

the facility’s control, located at a safe

distance from the tipping area, where solid

waste may be unloaded from those solid

waste vehicles that are either exempt from

state registration requirements or which

must be manually unloaded;

• the facility not accept or in any manner

handle hazardous waste or regulated

medical waste as defined by state law,

except in compliance with all applicable

requirements for such activities;

• nonputrescible solid waste not remain at

the rail facility for more than 10 days,

liquid solid waste not more than 180 days

in sealed containers, and putrescible solid

waste not more than 72 hours;

• effective security procedures be

implemented to control entry to the rail
17

facility, and exit from it, at all times;

• the State’s designated representatives and

inspectors be admitted to inspect any

building or other portion of a rail facility at

any time; 

• any release or discharge of any solid waste

at the rail facility be immediately reported

by the facility operator or its designee to

the State;

• an on-site emergency coordinator be

designated who will be available during all

hours of operation for the purpose of

handling emergency situations such as, but

not limited to, spills, discharges, or

releases of solid wastes at the facility;

• the rail carrier maintain daily records of

wastes received, a waste origin/disposal

form for each load of solid waste received,

and submit to the State monthly summaries

of wastes received no later than 20 days

after the last day of each month.

See generally N.J.A.C. § 7:26-2D.1(d).
18

Susquehanna asserted from the outset that it did not need

to comply with the 2D regulations because they were preempted

by the Interstate Commerce Commission Termination Act, 49

U.S.C. § 10501(b). After negotiations between Susquehanna

and the State failed, the State, alleging multiple violations of the

regulations at each site that continued for 250 days, assessed a

civil penalty against Susquehanna of $2.5 million—$2,000 per

day per site. Specifically, the State alleged that one or more of

the sites:

• did not store waste in a fully enclosed

building complying with the Uniform

Construction Code (all sites); 

• did not properly channel wastewater from

the tipping floor into sewer system

connections (all sites); 

• did not properly collect, store, and dispose

of wastewater generated through normal

facility operations (all sites);

• did not properly control dust migration (all

sites);

• failed to operate certified scales for

purposes of reporting waste transported by

trucks (all sites);
19

• spilled hazardous waste onto tracks and

adjoining areas rather than keeping it

contained (one site);

• failed to clean waste storage areas every

24 hours (four sites);

• failed to keep property surrounding waste

management areas free of litter and debris

(four sites);

• did not properly control odor emissions

(four sites);

• did not properly control insects and

rodents (four sites);

• failed to pave roadways and areas where

waste was loaded or unloaded (two sites);

• allowed particulates to be released into the

atmosphere causing air pollution (one

site);

• allowed nonputrescible waste to remain

on-site for more than 10 days (one site),

and
 The District Court had jurisdiction under 28 U.S.C. 5

§ 1331. We have appellate jurisdiction under 28 U.S.C. § 1291.

20

• failed adequately to control access to the

facility (one site).

App. at Aa217–28.

In response to the civil penalty, Susquehanna sued the

State in the federal District Court for the District of New Jersey,

asking the Court to declare that all of the 2D regulations were

preempted by federal law and to enjoin New Jersey from

enforcing the penalty. After the parties took limited discovery,

the District Court held a hearing in December 2005 to assess the

then-current conditions of the facilities and the issue of federal

preemption. Two days into the hearing, after Susquehanna had

called all of its witnesses but the State had only begun

examining its first, the Court discontinued the hearing to attend

to other matters. Over the next eight months, the parties tried to

settle the dispute. In August 2006, they gave up. The Court

asked for a final round of briefing and proposed to rule on

preemption without concluding the hearing. Neither party

objected, and the Court held that the Termination Act preempted

all of the 2D regulations. The State appeals.5

Because the District Court heard live testimony and

resolved disputed factual issues on that basis, we treat this case
 In the usual case, to rule for one side on legitimately 6

disputed, material factual issues without taking the adverse

side’s evidence would not be “according to Hoyle.” (Moreover,

the Federal Rules of Civil Procedure only allow judgment after

partial findings against a party that has been fully heard on the

relevant issue. See Fed. R. Civ. P. 52(c).) But because the State

had notice of the Court’s intention to rule without additional

testimony and did not object or otherwise raise the issue until

now, any defect is waived. Brenner v. Local 514, United Bhd.

of Carpenters & Joiners, 927 F.2d 1283 (3d Cir.1991) (“It is

well established that failure to raise an issue in the district court

constitutes waiver of the argument.”). 

21

as though it comes to us after a bench trial. Thus we review the 6

Court’s factual findings for clear error and its conclusions of

law de novo. Frederick L. v. Dep’t of Pub. Welfare of Pa., 422

F.3d 151, 154 (3d Cir. 2005).

II. Whether Susquehanna’s Activities Are Covered by

the Termination Act’s Preemption Clause

In relevant part, the Termination Act provides that “[t]he

jurisdiction of the [Surface Transportation] Board over

transportation by rail carrier . . . is exclusive. . . . [T]he remedies

provided under this part with respect to the regulation of rail

transportation are exclusive and preempt the remedies provided

under Federal and State law.” 49 U.S.C. § 10501(b) (internal

paragraph divisions omitted). The Act defines “transportation”
22

as 

(A) a locomotive, car, vehicle, vessel,

warehouse, wharf, pier, dock, yard, property,

facility, instrumentality, or equipment of any kind

related to the movement of passengers or

property, or both, by rail, regardless of ownership

or an agreement concerning use; and

(B) services related to that movement,

including receipt, delivery, elevation, transfer in

transit, refrigeration, icing, ventilation, storage,

handling, and interchange of passengers and

property[.]

49 U.S.C. § 10102(9). It defines “rail carrier,” in relevant part,

as “a person providing common carrier railroad transportation

for compensation.” 49 U.S.C. § 10102(5). 

The first question to which we turn is whether the

activities at issue are “transportation by rail carrier,” and thus

subject to the Termination Act. We begin with whether

Susquehanna engages in “transportation” activities, and follow

up with whether it acts as a “rail carrier.”

A. Whether Susquehanna’s Activities are

“Transportation”
Though both sides rely on Board decisions, neither has 7

argued that we owe it deference under Chevron U.S.A., Inc. v.

Natural Res. Def. Council, 467 U.S. 837, 843–44 (1984).

Because we believe the Board’s interpretation of the Act’s

preemption clause is correct in all respects pertinent to this case,

we need not decide whether formal deference is required.

23

It is undisputed that operations of the facilities include

dropping off cargo, loading it onto Susquehanna trains, and

shipping it. Thus the facilities engage in the receipt, storage,

handling, and interchange of rail cargo, which the Termination

Act explicitly defines as “transportation.” See 49 U.S.C. §

10102(9)(B). These operations fit within the plain text of the

Termination Act preemption clause.

The State, however, argues that the operations must be

“integrally” or “closely” related to providing rail service to

qualify as “transportation” under the Surface Transportation

Board’s prevailing interpretation of the Act. But the State’s 7

position seems based on a misreading of the Board’s caselaw.

It is true that the Board wrote in Borough of Riverdale, 4 S.T.B.

380 (1999) (declaratory order), that “facilities not integrally

related to the provision of interstate rail service are not subject

to our jurisdiction or subject to federal preemption.” Id. at 387.

But consider the entire paragraph:

Finally, it should be noted that manufacturing

activities and facilities not integrally related to the

provision of interstate rail service are not subject
24

to our jurisdiction or subject to federal

preemption. According to the Borough,

[Susquehanna] has established a corn processing

plant. If this facility is not integrally related to

providing transportation services, but rather

serves only a manufacturing or production

purpose, then, like any non-railroad property, it

would be subject to applicable state and local

regulation. Our jurisdiction over railroad

facilities, like that of the former [Interstate

Commerce Commission], is limited to those

facilities that are part of a railroad’s ability to

provide transportation services, and even then the

Board does not necessarily have direct

involvement in the construction and maintenance

of these facilities. See Growers Marketing Co. v.

Pere Marquette Ry., 248 I.C.C. 215, 227 (1941).

We cannot determine from the current record

whether this facility is actually a corn processing

plant or some sort of transloading operation (for

the transfer of corn syrup, for example) that is

related to transportation services.

Id. (emphasis added). In other words, the Board distinguished

“manufacturing,” which is not sufficiently related to

transportation by rail, and “transloading,” which is. 

Accepting the factual findings of the District Court in our
25

case as true, it deals with “transloading.” Hence, whatever the

legal effect of the Board’s adverb “integrally” (which we

suspect is minimal or none), transloading qualifies as

transportation.

In addition, the Court of Appeals for the Second Circuit

has held that transloading activities fall within the Termination

Act’s definition of “transportation.” See Green Mountain R.R.

Corp. v. Vt. (Green Mountain 2d Cir.), 404 F.3d 638, 642 (2d

Cir. 2005) (“Certainly, the plain language [of the Termination

Act] grants the [Surface] Transportation Board wide authority

over the transloading and storage facilities undertaken by Green

Mountain.”). Thus we hold that transloading operations are

“transportation” under the Termination Act.

The State claims, however, that the District Court erred

in not recognizing that Susquehanna engages in waste sorting

and processing as well as transloading at its facilities. Sorting

and processing, it argues, are not “transportation” because they

do not have the requisite nexus to the movement of property by

rail. Rather, those activities can be done anywhere and need not

have anything to do with the loading or shipment of solid waste.

Amicus curiae National Solid Wastes Management Association,

a trade association of solid waste collectors and processors,

agrees. It explains that separating recyclables from other C&D

waste is part of its members’ function as waste processors.

Nat’l Solid Waste Mgmt. Ass’n Br. at 12–14. According to the

Association, the food chain works as follows: people with waste
26

pay a shipper to take title to it. The shipper then delivers the

waste to a processor who, for a fee, separates out valuable

materials, such as scrap metal, wood, and appliances. The

shipper sells the valuables to recycling plants. It also engages

a railroad to take the remaining waste to a landfill, and it pays

the landfill to take title to the waste. Shippers make money by

getting more for the waste—from the initial owner and from

recycling plants—than they pay for processing, transport, and

ultimate disposal. Here, according to the Association, we have

a railroad acting as transport company, transloader, and

processor. By charging a low combined transloading/sorting fee

(Susquehanna’s expert refers to the transloading process as a

“loss leader”), the railroad increases demand for its real service,

which is hauling waste to landfills. But here’s the rub: waste

processing is a heavily regulated industry. According to the

Association, the railroad gains a competitive advantage if it can

shield its processing activities from regulation by characterizing

them as “transportation by a rail carrier” and thus preempting

burdensome state regulations. Id.

The District Court characterized the sorting activities at

the facilities as the de minimis removal of items that did not

comply with the shipper and landfill’s disposal contract. It

further found that because sorting and loading took place at the

same time, they were actually one process, the dominant

character of which was loading. App. at Aa38 (D. Ct. Op.).

The Court likened it to a loader removing a Toyota Camry from

a shipment it knew was supposed to be Ford Explorers. Id.
27

Determining how to review the Court’s characterization is

difficult because the line between fact and law here is blurry.

On one hand, Susquehanna’s expert plausibly characterized the

removal of some items as an incidental and normal part of the

loading process, id. (quoting App. at Aa1390–91 (Test. of

William Rinnicke)), and the District Court, as factfinder, was

entitled to credit that testimony. See T.R. v. Kingwood Twp. Bd.

of Educ., 205 F.3d 572, 577 (3d Cir. 2000). Moreover, the

Association’s characterization of this kind of sorting as “waste

processing” with value independent of the transloading process,

while perhaps persuasive, is not in the record. On the other

hand, even accepting the facts underlying Susquehanna’s

characterization as true, we must apply those facts to the

Termination Act’s definition of “transportation” to decide

whether they fit. See Evans v. United Arab Shipping Co. S.A.G.,

4 F.3d 207, 213 (3d Cir. 1993) (noting that “whether the facts

meet [a] statutory standard is an issue of law” (citations

omitted)).

Given all of the record evidence, we conclude that

whether the District Court’s characterization of the sorting

process was correct is immaterial. The 2D regulations do not

specifically regulate the sorting/processing aspect (to whatever

extent there is one) of Susquehanna’s facilities, nor does the

civil penalty order have anything specifically to do with sorting

or processing as opposed to storage and loading. Thus the

question of whether a state could specifically regulate the

sorting process (apart from the loading process) is not before us.
28

The regulations and penalty assessment here broadly regulate

storage and transloading, irrespective whether the rail carrier

also processes waste. Since both storage and transloading fall

within the definition of “transportation,” we need not consider

whether the incidental processing activities do as well.

B. Whether the Transloading Activities Are

Undertaken “by a Rail Carrier”

The State argues that Susquehanna is not acting as a “rail

carrier” when it ships waste from the transloading facilities for

two reasons: (1) Susquehanna does not operate the transloading

facilities itself, and (2) it grants virtually all of its hauling

capacity at each facility to one shipper. 

1. Susquehanna’s Control over the

Transloading Process

Our Hi Tech decision dealt with whether transloading

activities were performed “by a rail carrier.” Hi Tech Trans,

LLC v. N.J., 382 F.3d 295, 308–10 (3d Cir. 2004). In that case,

we noted that Hi Tech, the transloader, operated the transloading

facility under a license agreement with CPR, the rail carrier and

owner of the land. Id. at 308. Hi Tech constructed and

maintained the facility. Id. Moreover, the license agreement

established that Hi Tech was not CPR’s agent, and CPR

disclaimed any liability from Hi Tech’s operations. Id. CPR did

not charge shippers a fee for using the Hi Tech transloading
29

facility (presumably, the shippers paid Hi Tech for the service).

Id. 

This case is different because (1) the rail carrier owned

(or leased) the land and built the transloading facilities, (2)

shippers pay the rail carrier to load their freight, and (3) the rail

carrier does not disclaim liability for the loading process. The

Board noted that the Hi Tech situation was “substantially

different from a situation in which a rail carrier builds and owns

a truck-to-rail transloading facility, and holds it out to the public

as its own facility, but chooses to have a contract operator,”

which, presumably, would qualify as transportation by rail

carrier. Hi Tech Trans, LLC (Hi Tech STB), 2003 WL

21952136, at *5 n.13 (denying request for a declaratory order).

Relying on this language, the District Court concluded that our

case is just what the Board describes: a rail carrier

(Susquehanna) building, owning, and advertising its own

transloading facilities, which it uses a contract agent to operate.

While the District Court’s conclusion that this case is

distinguishable from Hi Tech is correct, a footnote from our Hi

Tech decision complicates the issue. We wrote that “[w]e do

not . . . suggest that a party can contractually determine its status

as a railroad carrier for regulatory purposes.” 382 F.3d at 308

n.19. This is a perplexing statement because the contract before

us obviously plays some role in determining the “nature of [the

loader’s] . . . relationship to [the railroad].” Id. That is, after all,

why it exists—to define the parties’ relationship. Our point in
30

Hi Tech, though, was that railroads and loaders may not change

by contract what in practice is a substantively different

relationship. 

Here, Susquehanna contracts with shippers to load their

waste, which it then pays a loading agent to do on its behalf. In

Hi Tech, the loader contracted with shippers directly. The State

argues that this is a distinction without a material difference, as

Susquehanna essentially just funneled money from shipper to

loader (often the exact same amount). The difference, however,

is that Susquehanna, by contracting directly with the shipper,

assumed more liability than the Hi Tech rail carrier.

Susquehanna could be sued for breach of contract (or potentially

negligence or some other tort) if something went wrong; the Hi

Tech railroad could not, as it was not a party to the shippers’ and

loaders’ agreements. We regard this as a substantive difference

between the Hi Tech case and this one, and therefore conclude

that the District Court appropriately distinguished it. 

2. Susquehanna’s Guaranteed-Capacity

Contracts

The State also argues that Susquehanna does not qualify

as a rail carrier when it hauls freight from the transloading

facilities because it does not act as a common carrier (though the

State concedes that Susquehanna does so in other contexts).

This is relevant because only common carriers fit the

Termination Act’s definition of “rail carrier.” 49 U.S.C.
31

§ 10102(5). The statute does not further define the term

“common carrier,” but the general definition is “[a] carrier that

is required by law to transport passengers or freight, without

refusal, if the approved fare or charge is paid.” BLACK’S LAW

DICTIONARY 205 (7th ed. 1999). The core of the State’s

argument is that, because Susquehanna sells in advance all (the

contaminated-soil facility) or nearly all (the C&D facilities) of

its capacity to one shipper, it offers nothing to the general

public, as the definition of “common carrier” requires. 

The common law differentiates between “private

carriers” and “common carriers.” See, e.g., York Co. v. Cent.

R.R., 70 U.S. 107, 112 (1865) (holding that common carriers

may limit their liability by undertaking private carriage). We

have held that

[t]he distinctive characteristic of a common

carrier is that he undertakes to carry for all people

indifferently, and hence is regarded in some

respects as a public servant. The dominant and

controlling factor in determining the status of one

as a common carrier is his public profession as to

the service offered or performed.

Kelly v. Gen. Elec. Co., 110 F. Supp. 4, 6 (E.D. Pa.), aff’d and

adopted as circuit precedent, 204 F.2d 692, 692 (3d Cir. 1953).

A private carrier, on the other hand, offers services to limited

customers under limited circumstances and assumes no
32

obligation to serve the public at large. Lone Star Steel Co. v.

McGee, 380 F.2d 640, 645 (5th Cir. 1967) (citing Ward Transp.,

Inc. v. Pub. Untils. Comm’n, 376 P.2d 166, 169 (Colo. 1962)).

Susquehanna was certified by the Interstate Commerce

Commission as a common carrier decades ago, and that

certification is current. But, as then-Circuit Judge Warren

Burger noted, “a common carrier may in some circumstances

operate as a private carrier.” Overseas Nat’l Airways, Inc. v.

Civil Aeronautics Bd., 307 F.2d 634, 636 (D.C. Cir. 1962); see

also York Co., 70 U.S. at 112. Even so, “a claim of such private

carriage must show that the private activity is distinguishable

from the public or common transportation business regularly

carried on. The claimed private carriage must be viewed in

relation to and against the background of the entire carrying

activity.” Overseas Nat’l Airways, 307 F.2d at 636.

Here, though the record on this issue is scant, a

Susquehanna officer testified that it publishes its charges for

hauling waste, App. at Aa1216, which indicates that it holds

itself out to the public as available to transport waste. Cf. 49

U.S.C. § 11101(b) (requiring that common carriers provide their

rates upon request). Moreover, as Susquehanna points out, there

is nothing in the record (and no apparent allegation) that it has

ever turned away a potential waste customer. Thus, if we follow

the D.C. Circuit Court of Appeals’s command to view

Susquehanna’s waste-hauling operation “against the background

of the entire carrying activity,” it appears merely part of its
33

overall common-carriage operation. Overseas Nat’l Airways,

307 F.2d at 636. Susquehanna holds itself out as willing to haul

waste for a reasonable and publicly available rate; it does, in

fact, haul waste for multiple customers; and there is no evidence

of it turning away a customer. Moreover, Susquehanna’s expert

testified (credited by the District Court) that the waste-hauling

industry lends itself to arrangements in which a middleman

“shipper” consolidates demand so as to generate multiple carloads that can be transported to a landfill as a group. This saves

the cost of car-switching down the line. Allowing multiple

shippers to load at a single transload facility would be difficult

because their waste would have to be stored separately (as they

presumably would not have contracts with the same landfills),

requiring more space than many facilities can easily muster

given the narrowness of railroad rights-of-way. Thus the norm

is for railroads to build large customers their own dedicated

facilities at different points on the same rail line (and to leave

some capacity open for smaller shippers).

In the context of shipping bulk waste, we believe the

concept of “common carrier” must be flexible enough to

accommodate reasonable commercial practice. Indeed, in its

decisions the Board merely defines the term “common carrier”

as “a person or entity that holds itself out to the general public

as engaged in the business of transporting persons or property

from place to place for compensation.” Am. Orient Express Ry.

Co., 2005 WL 3552968, at *3 (S.T.B. Dec. 27, 2005)

(declaratory order). “In determining whether there has been a
34

holding out, ‘one must look to the character of the service of the

party in relation to the public.’” Id. (quoting Penn. R.R. Co., 347

I.C.C. 536, 549 (I.C.C. 1974)). On this record it appears that

Susquehanna holds itself out to the public as providing waste

transport services in the manner common in the industry. This,

we believe, is sufficient to affirm the District Court’s

determination that Susquehanna acts as a common carrier.

III. Whether the 2D Regulations Fall Within the Scope of

Federal Preemption

A. The Scope of the Termination Act Preemption

Clause

Having established that Susquehanna’s storage and

transloading activities qualify as “transportation by a rail

carrier” under the Termination Act, the next question is whether

the Act preempts the State’s attempt to regulate the

environmental effects of these activities. The Termination Act

states that “the remedies provided under this part with respect to

the regulation of rail transportation are exclusive and preempt

the remedies provided under Federal and State law.” 49 U.S.C.

§ 10501(b) (internal paragraph divisions omitted). Keeping in

mind that a federal law does not preempt state laws “where the

activity regulated [by the state is] merely a peripheral concern”

of the federal law, San Diego Bldg. Trades Council, Millmen’s

Union, Local 2020 v. Garmon, 239 U.S. 236, 243 (1959), we

must look to the Termination Act’s “remedies . . . with respect
35

to the regulation of rail transportation,” 49 U.S.C. § 10501(b),

to determine its core concerns. The Termination Act regulates,

inter alia, rail carriers’ rates, terms of service, accounting

practices, ability to merge with one another, and authority to

acquire and construct rail lines. See generally 49 U.S.C.

§§ 10101–11908. Thus it regulates the economics and finances

of the rail carriage industry—and provides a panoply of

remedies when rail carriers break the rules. See 49 U.S.C.

§§ 11701–11707.

Because the Act’s subject matter is limited to

deregulation of the railroad industry, Fla. E. Coast Ry. Co. v.

City of W. Palm Beach, 266 F.3d 1324, 1337 (11th Cir. 2001),

courts and the Board have rightly held that it does not preempt

all state regulation affecting transportation by rail carrier. See

Green Mountain 2d Cir., 404 F.3d at 643; J.P Rail, Inc. v. N.J.

Pinelands Comm’n, 404 F. Supp. 2d 636, 652 n.31 (D.N.J.

2005); Vill. of Ridgefield Park v. N.Y., Susquehanna & W. Ry.

Corp., 750 A.2d 57, 63 (N.J. 2000); Riverdale, 1999 WL

715272, at *5 (“[S]tate or local regulation is permissible where

it does not interfere with interstate rail operations . . . .”).

Contrary to New Jersey and the amici’s argument, the

Termination Act does not preempt only explicit economic

regulation. Rather, it preempts all “state laws that may

reasonably be said to have the effect of managing or governing

rail transportation, while permitting the continued application of

laws having a more remote or incidental effect on rail

transportation.” Fla. E. Coast. Ry. Co., 266 F.3d at 1331
36

(internal quotation marks, citations, and alterations omitted).

What matters is the degree to which the challenged regulation

burdens rail transportation, not whether it is styled as

“economic” or “environmental.”

Soon after Congress enacted the Termination Act, the

newly created Surface Transportation Board ruled that, while

broad, the Act’s preemption clause “does not usurp the right of

state and local entities to impose appropriate public health and

safety regulation on interstate railroads,” so long as those

regulations do not interfere with or unreasonably burden

railroading. King County, 1996 WL 545598, at *3–4. In Cities

of Auburn & Kent, WA, 2 S.T.B. 330, 1997 WL 362017, at *6

(1997) (declaratory order), the Board expounded further: 

[T]here are areas with respect to railroad

activity that are reasonably within the local

authorities’ jurisdiction under the Constitution.

For example, even in cases where we approve a

construction or abandonment project, a local law

prohibiting the railroad from dumping excavated

earth into local waterways would appear to be a

reasonable exercise of local police power.

Similarly, as noted by the Secretary [of

Transportation], a state or local government could

issue citations or seek damages if harmful

substances were discharged during a railroad

construction or upgrading project. A railroad that
37

violated a local ordinance involving the dumping

of waste could be fined or penalized for dumping

by the state or local entity. The railroad also

could be required to bear the cost of disposing of

the waste from the construction in a way that did

not harm the health or well being of the local

community. We know of no court or agency

ruling that such a requirement would constitute an

unreasonable burden on, or interfere with,

interstate commerce. Therefore, such

requirements are not preempted.

. . . .

[W]here the local permitting process could

be used to frustrate or defeat an activity that is

regulated at the Federal level, the state or local

process is preempted. 

For the Board, the touchstone is whether the state regulation

imposes an unreasonable burden on railroading. Id. at *5.

In subsequent cases, the Board has explained that

uniform building, plumbing, and electrical codes generally are

not preempted because they do not unreasonably interfere with

railroad operations. Riverdale, 1999 WL 715272, at *6. On the

other hand, some local zoning ordinances, local land-use

regulations, and environmental permitting requirements are
38

preempted because they unreasonably prevent, delay, or

interfere with activities protected by the Act. Id. at *5–6. The

Board has emphasized, however, that even pedestrian

regulations like building codes must be applied in a manner that

does not discriminate against railroad operations to avoid

preemption. Green Mountain R.R., 2002 WL 1058001, at *4

(S.T.B. 2002) (denial of request for a declaratory order). 

Thus, according to the Board, state regulation is

permissible if it passes a two-part test: (1) it is not unreasonably

burdensome, and (2) it does not discriminate against railroads.

See Maumee & W. Ry. Corp., 2004 WL 395835, at *2 (S.T.B.

2004) (denying request for declaratory order). This is a factintensive inquiry. For example, the Board has ruled that a state

may take easements over rail lines when the facts show that

doing so will not significantly interfere with the railroad’s

ability to conduct business. See id. On the other hand, the

Board has held that even compelling state concerns like

preventing terrorism will not save a local regulation that

imposes too heavy a burden. See CSX Transp., Inc., 2005 WL

584026, at *8 (S.T.B. 2005) (declaratory order) (ruling that a

D.C. law that prohibited transporting hazardous material within

2.2 miles of the U.S. Capitol without a permit was preempted).

The Court of Appeals for the Second Circuit has

endorsed the Board’s approach. In Green Mountain 2d Cir., it

stated that while pre-construction permitting programs often

unreasonably interfere with rail travel, less burdensome and
39

non-discriminatory regulations would pass muster. It explained

further:

It therefore appears that states and towns may

exercise traditional police powers over the

development of railroad property, at least to the

extent that the regulations protect public health

and safety, are settled and defined, can be obeyed

with reasonable certainty, entail no extended or

open-ended delays, and can be approved (or

rejected) without the exercise of discretion on

subjective questions. Electrical, plumbing and

fire codes, direct environmental regulations

enacted for the protection of the public health and

safety, and other generally applicable, nondiscriminatory regulations and permit

requirements would seem to withstand

preemption.

404 F.3d at 643.

We believe that the approach of the Board and the

Second Circuit Court is sound. In particular, we agree that a

state law that affects rail carriage survives preemption if it does

not discriminate against rail carriage and does not unreasonably

burden rail carriage. The nondiscriminatory prong is

particularly useful in determining whether a state is regulating

principally to discriminate against a specific industry. Much of
 The Green Mountain Court held that only regulations 8

that do not involve “the exercise of discretion on subjective

questions” are permissible. 404 F.3d at 643. We believe this

statement, taken alone, goes too far because, as we explain infra,

some discretion is inherent in even the clearest regulatory

schemes. 

40

the Board’s logic in finding that standard building, fire, and

electrical codes are not preempted is that, while the costs of

compliance may be high in some sense, they are “incidental”

when they are subordinate outlays that all firms build into the

cost of doing business. See Riverdale, 1999 WL 715272, at *6.

Thus, for a state regulation to pass muster, it must address state

concerns generally, without targeting the railroad industry. 

As for the unreasonably burdensome prong, the most

obvious component is that the substance of the regulation must

not be so draconian that it prevents the railroad from carrying

out its business in a sensible fashion. In addition, as the Green

Mountain Court held, regulations must be settled and definite

enough to avoid open-ended delays. See 404 F.3d at 643. The 8

animating idea is that, while states may set health, safety, and

environmental ground rules, those rules must be clear enough

that the rail carrier can follow them and that the state cannot

easily use them as a pretext for interfering with or curtailing rail

service. On this point, the Board’s decision in Cities of Auburn

& Kent is illustrative. See 1997 WL 362017, at *6. In that

case, the Board found it relevant that the cities’ real goal in

creating an environmental permitting process was to constrain
 In Green Mountain, the permitting scheme at issue was 9

so open-ended that it allowed the State to impose site-specific,

burdensome regulations as conditions for permit approval. This

process gave the State too much room to delay and burden rail

travel. See 404 F.3d at 643.

41

(rather than render safe) a railroad’s operations. Id. It noted

that one of the problems with the permitting process was that it

gave the cities too much room to give effect to their antirailroading policy in the guise of non-discriminatory

environmental regulation. Id. 

We do not hold that local regulations may not give state

and local officials any discretion at all, for that would be

impractical. Standard building, electrical, and fire codes no

doubt give local officials some discretion. See, e.g., Int’l Fire

Code § 304.2 (2000) (“Storage of combustible rubbish shall not

produce conditions that will create a nuisance or a hazard to the

public health, safety, or welfare.”); id. §§ 401.2 & 404 (giving

local code official discretion to determine if fire safety plan is

adequate). But such regulations may not (1) be so open-ended

as to all but ensure delay and disagreement, or (2) actually be

used unreasonably to delay or interfere with rail carriage. In

other words, some regulations, like those at issue in the Green

Mountain litigation, give too much discretion to survive a facial

challenge because they invite delay. In addition, even a 9

regulation that is definite on its face may be challenged asapplied if unreasonably enforced or used as a pretext to carry out

a policy of delay or interference.
42

B. Application to Susquehanna’s Activities

Against this backdrop, the District Court found six

problems with the 2D regulations. First, it noted that potential

fines of up to $50,000 per day per violation were excessive to

the point of threatening Susquehanna with immediate shutdown.

While this may be true, there appears to be little in the record

demonstrating the (un)reasonableness of this amount (and the

Court cites nothing). Nothing prevents a state from imposing a

significant fine on months of noncompliance with valid

regulations, Cities of Auburn & Kent, 1997 WL 362017, at *6,

and so one would expect some evidence to support the Court’s

factual finding. Moreover, the fine in this case is only $2,000

per day; nothing in the record indicates that it is unreasonable.

Second, the Court stated that the provisions dictating the

design, construction, and operation of the facilities made

immediate compliance nearly impossible. In effect, they

operated much like a permit system. This logic is sound: if a

state imposes new regulations on existing rail facilities without

giving reasonable time for them to come into compliance, then

it would cause a delay (likely unwarranted) in the provision of

rail service. Again, however, the District Court did not connect

its finding to anything in the record showing that the State’s

demands were unreasonable or were imposed without sufficient

notice.

Third and fourth, the Court found that the regulations
43

gave the State too much discretion and invited open-ended

delays. It noted that 

provisions authorize the State to penalize

[Susquehanna] if the company does not maintain

“[e]ffective security procedures . . . to control

entry and exit at all times,” and “adequate water

supply and adequate fire-fighting equipment”; or

if waste containers are not “secured at all times in

a manner that prevents unauthorized access”; or if

dust migrates outside the facilities; or if the

staging of waste vehicles causes “traffic backups

and related traffic hazards” on public roadways.

N.J.A.C. 7:26-2D.1(c)(2)(iv), (c)(2)(v),

(c)(2)(vii), (d)(7), (d)(9), (d)(22) (emphases

added).

App. at Aa 46. We agree that many of the 2D regulations

appear to grant significant discretion. The State protests that

many of the regulations are written to give the rail carrier

flexibility in determining how to comply, rather that set strict

standards. The problem comes when the goal to be achieved is

so subjective that the compliance process is open to

unreasonable delay. In making this determination, it is

important for a court to hone in on how wide the range of
 For example, it is possible that a standard like 10

“adequate fire protection” has a common enough meaning in the

relevant industry that the range of discretion is actually narrow

and compliance is straightforward. 

44

discretion really is. We leave to the District Court on remand 10

the task of determining whether a particular regulation is too

subjective. 

Fifth, the Court took issue with the State’s power to enter

and inspect rail facilities at any time to ensure compliance.

Perhaps this power is open to abuse (and thus might give rise to

an as-applied challenge). See Riverdale, 1999 WL 715272, at

*5. But, given the State’s interest in effectively enforcing its

regulatory scheme, such a rule is not per se unreasonable, and

the District Court did not find facts to suggest that it is in the

context of this case. 

Sixth, the Court noted that the 2D regulations are

discriminatory because by their terms they apply only to rail

carriers. The State counters that they are similar in kind to

regulations that apply to other solid waste facilities. See, e.g.,

N.J.A.C. § 7:26-2.11 (general operational requirements for solid

waste facilities); N.J.A.C. § 7:26-2B.5 (additional design

requirements for transfer stations and materials recovery

facilities); N.J.A.C. § 7:26-2B.9 (additional operational

requirements for transfer stations and materials recovery

facilities). At first glance, the regulations do appear to be

similar, but it is difficult to assess how similar they are without
45

knowing more about the industry. It appears, however, that the

2D regulations are, if anything, more relaxed than those that

apply to other solid waste facilities—probably because the State

was trying to steer clear of a preemption problem. Indeed,

permitting requirements abound for other solid waste facilities.

See, e.g., N.J.A.C. § 7:26-3.6 (specifying permitting

requirements for non-rail solid waste transfer facilities). As

those are not allowed in this context, it would be impossible for

the State to regulate rail facilities in the same way. Thus,

evaluating the nondiscriminatory prong requires comparing the

substance of the solid waste regulations that apply to railroads

with those that apply to similar industries that deal in solid waste

to determine if the State is discriminating against rail carriage.

As the record before us does not show that was done, we cannot

determine whether the 2D regulations are impermissibly

discriminatory at this point.

The core concern for us is that the District Court did not

make its findings regulation-by-regulation; rather, it found that

all were preempted. This determination is, we believe, too

broad. At least some of the regulations seem sufficiently certain

and identical to those applied to non-rail facilities. For example,

one of the regulations requires that all storage activities occur

“within the confines of an enclosed building that complies with

all the requirements of the Uniform Construction Code.”

N.J.A.C. § 7:26-2D.1(d)(1). Under Riverdale and Green

Mountain 2d Cir., this seems reasonable, certain, and
 We do not hold that this regulation is permissible, as 11

we leave that question for the District Court to resolve on

remand. We merely point it out as an example of a regulation

that appears permissible on its face. On remand, the District

Court is free to conclude otherwise with the benefit of a full

factual record.

46

nondiscriminatory. We, however, are not in a good position to 11

analyze each individual regulation because neither the briefing,

the District Court’s decision, nor the appellate record is

sufficiently detailed. Thus we remand for the District Court to

make a determination of preemption for each regulation in the

first instance. It may turn out that most of the regulations are

preempted, but it would be premature to invalidate those (like

the construction-code requirement) that might survive on a more

developed record. 

At oral argument, Susquehanna objected to this sort of

remand by arguing that the State did not ask the District Court

to examine the regulations individually. That is irrelevant.

Susquehanna approached the District Court as a declaratoryjudgment plaintiff asking the Court to strike down all of the 2D

regulations. New Jersey answered, asking the Court to uphold

all of them. The Court sided with Susquehanna. Nothing

prevents us, in our de novo review of the District Court’s

application of law to facts, see VFB LLC v. Campbell Soup Co.,

482 F.3d 624, 632 (3d Cir. 2007), from recognizing that the law

in this area admits of more nuance than any of the parties (or the

amici) argued and fashioning our remand accordingly. Nor does
As to the civil penalty, if it is based in part or in whole 12

on preempted regulations, the District Court should enjoin its

enforcement. If this happens, New Jersey may, subject to

relevant state laws and regulations, assess a new penalty based

only on the regulations that survive.

47

anything prevent us from concluding that the District Court’s

factfinding does not appear to support the breadth of the

injunction it entered, and thus remanding for a more detailed

inquiry.

* * * * *

We hold that the Termination Act does not preempt state

regulation if it is nondiscriminatory and not unreasonably

burdensome. Because it appears from this record that some, but

not all, of the 2D regulations may meet this test, we vacate the

District Court’s order permanently enjoining the State from

enforcing the regulations, and remand for consideration of

whether each regulation is preempted.12