24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2024 (Argued: December 10, 2024 Decided: August 5, 2025) Docket No. 24-1780
DCC PROPANE, LLC, Plaintiff–Appellant,
v.
KMT ENTERPRISES, INC., Defendant–Appellee,
Before: SACK, CHIN, AND ROBINSON, Circuit Judges. Plaintiff-Appellant DCC Propane LLC (“DCC Propane”) appeals from a judgment of the United States District Court for the District of Connecticut (Sarala V. Nagala, Judge), which granted KMT Enterprises, Inc.’s (“KMT”) motion to dismiss, concluding that DCC Propane’s Connecticut common-law claims for negligence and recklessness were preempted by the Hazardous Materials Transportation Act (“HMTA”), 49 U.S.C. § 5101 et seq., and, in the alternative, that DCC Propane failed to state a recklessness claim. We conclude that the HMTA does not preempt DCC Propane’s common- law claims because those common-law claims are “substantively the same” as the requirements imposed on hazardous-materials transporters by federal law. We therefore VACATE the district court’s judgment and REMAND for further proceedings consistent with this opinion. GERALD T. GIAIMO (David J. Monz, on the brief), Updike, Kelly & Spellacy, P.C., New No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
Haven, CT, for Plaintiff-Appellant DCC Propane LLC;
KENNETH R. SLATER, JR. (Thomas A. Plotkin, Paul D. Meade, on the brief), Halloran & Sage, LLP, Hartford, CT, for Defendant- Appellee KMT Enterprises, Inc. SACK, Circuit Judge:
Plaintiff-Appellant DCC Propane, LLC (“DCC Propane”) allegedly
suffered significant damage to its property in Putnam, Connecticut, during a
delivery of heating oil by Defendant-Appellee KMT Enterprises, Inc. (“KMT”).
DCC Propane subsequently sued KMT in the United States District Court for the
District of Connecticut for common-law negligence and recklessness under
Connecticut law, alleging that KMT negligently and recklessly damaged DCC
Propane’s property. As evidence of KMT’s alleged breaches of its duties of care,
DCC Propane cited several Hazardous Materials Regulations (“HMRs”), 49
C.F.R. §§ 171–185, promulgated by the United States Department of
Transportation (“DOT”) under the Hazardous Materials Transportation Act of
1975 (“HMTA”), 49 U.S.C. § 5101 et seq. KMT moved to dismiss DCC Propane’s
Complaint, arguing that DCC Propane’s claims were preempted by the HMTA.
The district court (Sarala V. Nagala, Judge) granted KMT’s motion to dismiss,
2 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
concluding that, under our decision in Buono v. Tyco Fire Products, LP, 78 F.4th
490 (2d Cir. 2023), DCC Propane’s claims were preempted by the HMTA. See
DCC Propane, LLC v. KMT Enters., Inc., No. 3:23 Civ. 950, 2024 WL 2941635, at *2–
7 (D. Conn. June 11, 2024).
On appeal, we conclude that the HMTA does not preempt DCC Propane’s
common-law claims of negligence and recklessness against KMT because they
would impose no requirement on KMT inconsistent with federal law. For the
reasons set forth in further detail below, we therefore VACATE the district
court’s order dismissing DCC Propane’s Complaint and REMAND the matter
for further proceedings consistent with this opinion.
BACKGROUND I. Factual History The following facts are drawn from the Complaint’s allegations, which we
accept as true for the purposes of a defendant’s Rule 12(b)(6) motion to dismiss.
See Lynch v. City of N.Y., 952 F.3d 67, 74–75 (2d Cir. 2020). When evaluating a
preemption argument in the context of a motion to dismiss, we view “the factual
allegations relevant to preemption . . . in the light most favorable to the plaintiff.”
Galper v. JP Morgan Chase Bank, N.A., 802 F.3d 437, 444 (2d Cir. 2015).
3 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
DCC Propane provides oil and propane for residential, agricultural,
commercial, and industrial uses. On February 15, 2022, DCC Propane hired
KMT, a trucking business, to deliver 10,000 gallons of No. 2 heating oil to DCC
Propane’s premises in Putnam, Connecticut. DCC Propane alleges that, during
the delivery, “[t]he KMT employee who was charged with the delivery of the oil
did not monitor the filling and sat inside the cab of his truck while the tank
overflowed for at least seven minutes.” App’x 10 ¶ 10. According to DCC
Propane, “[t]he overflow of the oil from the tank permeated the ground beneath
the tank, contaminating and polluting the soil and groundwater.” Id. at 10 ¶ 11.
DCC Propane claims that it has incurred and will continue to incur more than
$500,000 to remediate the oil-contaminated soil, plus expenses “related to the
investigation, defense, and compliance with environmental regulation
enforcement.” Id. at 11–12.
II. Procedural History DCC Propane filed its Complaint against KMT in the United States District
Court for the District of Connecticut on July 19, 2023. The Complaint contained
common-law claims for negligence and recklessness under Connecticut law, with
federal jurisdiction premised on the parties’ diversity of citizenship. DCC
Propane alleged that KMT acted negligently when it “failed to offload the
4 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
heating oil with a reasonable standard of care” and cited several HMRs that KMT
allegedly violated as evidence of KMT’s duties of care and breach thereof. App’x
10 ¶ 12(a). As part of its recklessness count, DCC Propane further alleged that
KMT was recklessly indifferent to those same HMRs. The HMRs cited in the
Complaint provide that “[a] motor carrier who transports hazardous materials
by a cargo tank must ensure that the cargo tank is attended by a qualified person
at all times during unloading,” 49 C.F.R. § 177.834(i)(2), and that “[t]he qualified
person attending the unloading of a cargo tank must be alert and have an
unobstructed view of the cargo tank and delivery hose to the maximum extent
practicable during the unloading operation,” id. § 177.834(i)(3)(i).
KMT moved to dismiss the Complaint under Rule 12(b)(6), arguing that
(1) the HMTA preempts DCC Propane’s common-law claims for negligence and
recklessness, and (2) even if the claims are not preempted and the allegations in
the Complaint are true, KMT’s alleged conduct did not rise to the level of
recklessness as a matter of law. On May 10, 2024, the district court held a
hearing on KMT’s motion to dismiss, see App’x 29–68 (hearing transcript), and,
on June 11, 2024, granted KMT’s motion to dismiss, see DCC Propane, 2024 WL
2941635. We discuss the district court’s decision further below.
5 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
DISCUSSION We begin by discussing the applicable law before turning to DCC
Propane’s arguments on appeal.
I. Standard of Review We review de novo the district court’s grant of a motion to dismiss on a
preemption question. Critcher v. L'Oreal USA, Inc., 959 F.3d 31, 34 (2d Cir. 2020).
“When a federal law contains an express-preemption clause,” such as the one at
issue in the HMTA, 49 U.S.C. § 5125, “we focus on the plain wording of the
clause, which necessarily contains the best evidence of Congress’ preemptive
intent,” Chamber of Com. of U.S. v. Whiting, 563 U.S. 582, 594 (2011) (citations and
quotation marks omitted), and do not invoke any presumption against
preemption, see Buono, 78 F.4th at 495 (citing Puerto Rico v. Franklin Cal. Tax-Free
Tr., 579 U.S. 115, 125 (2016)).
II. The Hazardous Materials Transportation Act In the early 1970s, Congress became concerned that “those who
transported hazardous materials through interstate commerce were forced to
navigate a patchwork of sometimes conflicting state regulations.” Roth v.
Norfalco LLC, 651 F.3d 367, 370 (3d Cir. 2011) (quotation marks omitted). In 1975,
Congress enacted the HMTA to “protect the Nation adequately against the risks
6 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
to life and property which are inherent in the transportation of hazardous
materials in commerce.” Pub L. No. 93–633, § 102, 88 Stat. 2156, 2156 (1975). A
“major purpose of the HMTA was the development of a uniform, national
scheme of regulation regarding the transportation of hazardous materials.” CSX
Transp., Inc. v. Williams, 406 F.3d 667, 674 (D.C. Cir. 2005) (Henderson, J.,
concurring) (quotation marks omitted). In 1990 and 2005, Congress amended the
HMTA and expanded upon this objective of promoting uniformity. See Roth, 651
F.3d at 370–71 (first citing Hazardous Materials Transportation Uniform Safety
Act of 1990, Pub. L. No. 101–615, 104 Stat. 3244, 3244 (1990); and then Hazardous
Materials Transportation Safety and Security Reauthorization Act of 2005, Pub. L.
No. 109–59, § 7101, 119 Stat. 1144, 1891 (2005)).
The relevant structure of the HMTA is as follows: The HMTA authorizes
the Secretary of Transportation to designate certain materials as hazardous and
to promulgate appropriate HMRs. See Buono, 78 F.4th at 496 (citing 49 U.S.C. §
5103)). The enforcement provision provides that the Secretary of Transportation
or Attorney General may bring a civil action in federal court to enforce the
HMTA or HMRs, see 49 U.S.C. § 5122; there is no federal cause of action for
private parties, express or implied, under the HMTA, see, e.g., Borough of
7 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
Ridgefield v. N.Y. Susquehanna & W. R.R., 810 F.2d 57, 60 (3d Cir. 1987); accord
Alessio v. United Airlines, Inc., No. 18-4251, 2019 WL 12631628, at *2 (6th Cir. June
24, 2019).
Sections 5123 and 5124 of the statute prescribe the required mental states
for civil and criminal liability, respectively, under the HMTA. See 49 U.S.C.
§§ 5123–24. Section 5123 provides that “[a] person that knowingly violates this
chapter or a regulation, order, special permit, or approval issued under this
chapter is liable to the United States Government for a civil penalty of not more
than $75,000 for each violation.” Id. § 5123(a)(1). The statute defines
“knowingly” as either when “the person has actual knowledge of the facts giving
rise to the violation” or “a reasonable person acting in the circumstances and
exercising reasonable care would have that knowledge.” Id. § 5123(a)(1)(A)–(B).
The criminal-penalty section provides that criminal liability may attach if a
person acts (1) knowingly, defined identically to the two definitions for civil
liability recited above; (2) willfully; or (3) recklessly, defined as “when the person
displays a deliberate indifference or conscious disregard to the consequences of
that person’s conduct.” Id. § 5124.
8 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
The “linchpin in Congress’ efforts to impose nationwide regulatory
uniformity,” Roth, 651 F.3d at 378, is the HMTA’s preemption provision, 49
U.S.C. § 5125, which provides in relevant part that:
a law, regulation, order, or other requirement of a State, political subdivision of a State, or Indian tribe about [the packing, repacking, handling, labeling, marking, and placarding of hazardous material], that is not substantively the same as a provision 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 preempted.
49 U.S.C. § 5125(b) (emphasis added).
Courts, including ours, have interpreted this language to establish that the
HMTA preempts a nonfederal law—including state common law, see Buono, 78
F.4th at 499 (citing Riegel v. Medtronic, Inc., 552 U.S. 312, 324 (2008))—when two
conditions are present, see id. at 496–97; accord Roth, 651 F.3d at 376–77.
First, to be preempted, the nonfederal law must be “about” one of the
enumerated subjects in § 5125(b)(1)(A)–(E) (the “subject-matter requirement”).
Buono, 78 F.4th at 496–97. Section 5125(b)(1) lists the following subjects:
(A) the designation, description, and classification of hazardous material.
9 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
(B) the packing, repacking, handling, labeling, marking, and placarding of hazardous material. (C) the preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents. (D) the written notification, recording, and reporting of the unintentional release in transportation of hazardous material and other written hazardous materials transportation incident reporting involving State or local emergency responders in the initial response to the incident. (E) the designing, manufacturing, fabricating, inspecting, marking, maintaining, reconditioning, repairing, or testing a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce. 49 U.S.C. § 5125(b)(1).
Second, under the “substantive-similarity requirement,” a nonfederal law
will be preempted if it does not “conform[] in every significant respect to the
Federal requirement. Editorial and other similar de minimis changes are
permitted.” Buono, 78 F.4th at 499–500 (quoting 49 C.F.R. § 107.202(d)).
Although the substantive duties imposed by the HMTA and HMRs on
hazardous-materials transporters are undoubtedly “federal requirements”
relevant to the preemption analysis, see id. at 499; Roth, 651 F.3d at 376, it is an
open question whether, to avoid preemption, the mental states required for state-
10 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
law tort claims must be “substantively the same” as the HMTA’s enumerated
mental states for civil or criminal violations, see 49 U.S.C. §§ 5123–5124. For the
purposes of this appeal, we assume but do not decide that the mental states
under state and federal law must be substantively the same. 1
1 We note our doubts about this assumption. Section 5125, which governs HMTA preemption, provides in subsection (h) that the “[preemption] section does not apply to any procedure, penalty, required mental state, or other standard utilized by a State, political subdivision of a State, or Indian tribe to enforce a requirement applicable to the transportation of hazardous material.” 49 U.S.C. § 5125(h) (emphasis added). The carveout for “required mental state[s]” suggests that states may maintain laws enforcing the substantive requirements of the HMTA and HMRs, even if the state law imposes mental states that are not “substantively the same” as those of federal law. In other words, so long as the duties incorporated into state law—such as compliance with the HMR—are substantively the same as under federal law, the state law avoids preemption, even if it seeks to impose a distinct, or lesser, mental state than required by the HMTA for civil violations.
There appears to be scant authority interpreting this provision, although the Department of Transportation (“DOT”) has issued one relevant preemption determination pursuant to its authority under the HMTA’s preemption provision “to decide whether a state or local statute that conflicts with the regulation of hazardous waste transportation is pre-empted.” Wyeth v. Levine, 555 U.S. 555, 576 n.9 (2009) (citing 49 U.S.C. § 5125(d)). The DOT concluded that the HMTA did not preempt the state of Oregon from enforcing a regulation modeled after a federal HMR but including a strict liability standard because § 5125’s preemption authority did not extend to a “required mental state . . . used by a state . . . to enforce hazardous material transportation requirements.”. See Hazardous Materials: Oregon Hazardous Waste Management Regulation, 84 Fed. Reg. 50882-01, 50883, 2019 WL 4671466 (Sept. 26, 2019) (quoting § 5125(h)). KMT contends that this provision applies only to “exemption from preemption of sovereign enforcement actions, with no mention of private lawsuits,” such that the state of Connecticut could bring a strict-liability enforcement action for HMR violations, but a private party could not bring a strict-liability lawsuit under Connecticut law. Appellee’s Br. at 33. We ultimately need not interpret § 5125(h) because we conclude
11 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
To summarize, the HMTA preempts a nonfederal law if that nonfederal
law (a) is “about” a subject matter enumerated in the HMTA and (b) does not
conform in every significant respect to the federal requirements, such as the
duties imposed on hazardous-materials transporters by the HMRs.
III. Analysis We turn to the parties’ arguments on appeal. We note, at the outset, that
DCC Propane concedes that its claims meet the subject-matter requirement of the
HMTA preemption test, 2 so the sole preemption issue on appeal is whether DCC
Propane’s claims are substantively the same as the HMTA’s requirements. See
Appellant’s Br. at 15–16. If DCC Propane’s common-law claims are not
substantively the same as the federal requirements, they are preempted. Again,
we assume but do not decide that the mental-state elements of DCC Propane’s
tort claims must be substantively the same as the mental-state elements for civil
violations of the HMTA to avoid preemption.
that the HMTA’s prescribed mental states for civil violations are substantively the same as for DCC Propane’s state common-law claims.
2 Section 5125(b) lists various subjects, including the “packing, repacking, handling, labeling, marking, and placarding of hazardous material.” 49 U.S.C. § 5125(b)(1). It is undisputed that DCC’s claims are “about” the “handling” of hazardous materials. 12 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
A. Whether Buono Governs this Appeal We must first determine whether Buono’s remarks about the HMTA’s
enumerated mental states for civil violations control our analysis. 3 We conclude
that they do not.
Buono principally concerned the first prong of the HMTA preemption test,
the subject-matter requirement, rather than the second prong—and the issue now
before us—the substantive-similarity requirement. The plaintiff, Franklin Buono,
lost his leg at work when a cylinder tank filled with compressed air exploded.
Buono, 78 F.4th at 493–94. Buono brought New York common-law claims for
strict liability and negligence against Tyco Fire Products, LP (“Tyco”), which sold
the tank to Buono’s employer. See id. In holding that the HMTA preempted
Buono’s claims, the district court concluded that Buono “conced[ed] tacitly that
the duties he seeks to impose are ‘not substantively the same’ as those imposed
by the federal law,” Buono, 2022 WL 744050, at *6, because Buono’s theory of
liability would have imposed labeling duties on the defendant beyond those
required by federal law, id. at *7, *9.
3The district court in the case before us on appeal relied on Buono in holding that DCC Propane’s common-law negligence claim was preempted. See DCC Propane, 2024 WL 2941635, at *4. 13 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
On appeal, Buono did not contest that he had conceded before the district
court that his claims failed to meet the substantive-similarity requirement. See
generally Brief for Appellant at 28–33, 46, Buono v. Tyco Fire Prods., LP, 78 F.4th
490 (2d Cir. 2023) (No. 22-754); see also Brief for Appellee at 10, Buono v. Tyco Fire
Prods., LP, 78 F.4th 490 (2d Cir. 2023) (No. 22-754) (stating that Buono made this
concession). Instead, Buono contended that the HMTA’s subject-matter
requirement for preemption did not apply, arguing, for example, that the tank
was not used to transport hazardous materials in interstate commerce. See Brief
for Appellant at 2, 27, Buono, 78 F.4th 490 (No. 22-754).
In affirming the district court, we first resolved the principal issue on
appeal by rejecting Buono’s arguments that his claims were not “about” one of
the HMTA’s enumerated subjects. See Buono, 78 F.4th at 497–500. We then
resolved the appeal in Tyco’s favor by holding that Buono’s claims also did not
meet the substantive-similarity requirement because Buono did “not allege what,
if any, provision of the HMTA or HMR is ‘substantively the same’ as his
common-law claims.” Id. at 500. While we remarked in passing that, “[i]n any
event,” the mental state required for negligence was different from the HMTA’s
14 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
“knowingly” requirement for civil violations, 4 id., our comment was “not
essential to [our] holding . . . and therefore not binding on us [in this appeal].”
Willis Mgmt. (Vt.), Ltd. v. United States, 652 F.3d 236, 243 (2d Cir. 2011). As we
ruled in Tyco’s favor on the substantive-similarity requirement because Buono
failed to argue that his state-law claims were substantively the same as the
federal requirements, and the parties neither raised nor briefed whether the
HMTA’s definition of “knowingly” is akin to a negligence standard, we must
therefore turn to DCC Propane’s negligence claim and the statutory language of
the HMTA afresh. See Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 363 (2006)
(Although a court’s prior observations are often persuasive, a court is “not
bound to follow [its] dicta in a prior case in which the point now at issue was not
fully debated.”).
B. DCC Propane’s Negligence Claim Turning to the merits of this appeal, we must determine whether the
HMTA’s definition of “knowingly” is substantively the same as the mental state
4 While the Buono Court correctly observed that “a civil violation of the HMTA or HMR must be committed ‘knowingly,’ 49 U.S.C. § 5123(a),” 78 F.4th at 500, it did not discuss the definitions of “knowingly” or acknowledge that constructive knowledge is included in the statutory definition. 15 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
required by a Connecticut common-law negligence claim. We conclude that it
plainly is.
The HMTA provides that a person is liable for civil penalties when she
“knowingly violates this chapter or a regulation, order, special permit, or
approval issued under this chapter.” Id. § 5123(a)(1) (emphasis added). Perhaps
counterintuitively, the statute then provides two distinct definitions of when a
person acts “knowingly”: when “the person has actual knowledge of the facts
giving rise to the violation” or “a reasonable person acting in the circumstances
and exercising reasonable care would have that knowledge.” Id. § 5123(a)(1)(A)–
(B). The first definition sounds in actual knowledge, rather than negligence, so
we must decide whether the second definition of “knowingly” maps onto the
meaning of negligence under Connecticut law.
We conclude that the second definition of “knowingly” is “substantively
the same” as the required mental state for a common-law negligence claim under
Connecticut law. Compare id. § 5123(a)(1)(B) (“knowingly” means “a reasonable
person acting in the circumstances and exercising reasonable care would have
that knowledge”) with Doe v. Saint Francis Hosp. & Med. Ctr., 72 A.3d 929, 944
(Conn. 2013) (negligence is “the failure to use reasonable care under the
16 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
circumstances,” and reasonable care “is the care that a reasonably prudent
person would have used in the same circumstances”), and Restatement (Second)
of Torts § 283 (standard of conduct for an actor to avoid negligence liability is
“that of a reasonable [person] under like circumstances”). This definition of
negligence is substantively the same as the definition of “knowingly” in
§ 5125(a)(1)(B) because it “conforms in every significant respect to the Federal
requirement.” Buono, 78 F.4th at 499–500 (quoting 49 C.F.R. § 107.202(d)). Thus,
DCC Propane’s negligence claim does not seek to impose liability on KMT under
a mental state different from that imposed by federal law.
Unlike in Roth—a leading HMTA preemption case from the Third
Circuit—and Buono, DCC Propane’s negligence claim escapes preemption
because its allegations are premised on violations of a duty of care expressly
defined with reference to HMRs, thereby foreclosing any contention that it seeks
to impose requirements beyond those provided by federal law. 5 In Roth, the
Third Circuit held preempted the plaintiff’s common-law claims that the court
construed to mean that the defendant had a “common law duty to design a safer
5 To emphasize, DCC Propane is not suing under the HMTA, which supplies no private right of action, but is rather suing under Connecticut common law and seeking to introduce the federal standards under the HMRs as evidence of KMT’s duties of care. 17 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
tank car.” 651 F.3d at 376. Under the “substantively the same” prong of the
HMTA preemption test, the court concluded that the design requirement that the
plaintiffs sought to impose—i.e., installation of two safety devices—was not
required by the HMTA or HMRs. Id. Because the plaintiff’s theory of liability
would “impose conditions beyond those imposed by the HMR,” the plaintiff’s
claims did “not conform in every significant respect to the federal regulatory
scheme.” Id. at 377. Similarly, in Buono, Buono’s failure-to-warn claims would
have imposed labeling duties beyond those required by federal law, and he did
not assert that any provision of the HMTA or HMRs was substantively the same
as his common-law claims. 78 F.4th at 500.
Here, in stark contrast, DCC Propane’s negligence claim is predicated on
KMT’s alleged violations of specific HMRs. DCC Propane’s Complaint, see
App’x at 10-11 ¶ 12, alleges that KMT was negligent and cited as evidence of that
negligence KMT’s alleged violations of 49 C.F.R. § 177.834(i)(2), which requires
KMT to “ensure that the cargo tank is attended by a qualified person at all times”
while unloading the oil at DCC’s property, and 49 C.F.R. § 177.834(i)(3)(iii),
which requires that “qualified person” to “be alert and have an unobstructed
view of the cargo tank and delivery hose to the maximum extent practicable”
18 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
during unloading. DCC Propane’s Complaint therefore seeks to recover
damages for negligent violations of common-law duties identical to federal
regulatory duties; as the Supreme Court held in a case involving a similar
express-preemption provision under the Medical Device Amendments of 1976, 6
“[n]othing in [the preemption provision] denies [a state] the right to provide a
traditional damages remedy for violations of common-law duties when those
duties parallel federal requirements.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 495
(1996); see also Otis-Wisher v. Medtronic, Inc., 616 F. App’x 433, 434 (2d Cir. 2015)
(summary order) (common-law claims survive preemption in this context “if
they constitute so-called ‘parallel’ claims, such as claims premised on a violation
of [federal] regulations where state law provides a damages remedy for such
violations” (quotation marks omitted)). The vast majority of federal district
courts to consider whether a plaintiff can bring a tort claim premised on
6 Compare 49 U.S.C. § 5125(b)(1) (a state law “about any of the following subjects, that is not substantively the same as a provision 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 preempted”), with 21 U.S.C. § 360k(a) (“[N]o State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement (1) which is different from, or in addition to, any requirement applicable under [the act] to the device, and (2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under [the act].”). 19 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
violations of the HMRs have similarly concluded that that claim is not
preempted. 7
The DOT’s interpretation of the HMTA is consistent with our conclusion.
Pursuant to 49 U.S.C. § 5125(d)(1), a person “directly affected by a requirement of
7 See, e.g., In re E. Palestine Train Derailment, No. 23 Civ. 242, 2024 WL 1094616, at *8 (N.D. Ohio Mar. 13, 2024) (“[The plaintiff’s] negligence claims . . . are not preempted under federal law because [the plaintiff] alleges that [the defendant] failed to comply with the requirements of the HMTA, and [the plaintiff] does not seek to impose duties on [the defendant] exceeding those requirements.”) (footnote omitted); Merritt v. BASF Corp., 21 Civ. 67, 2023 WL 3230983, at *5 (S.D. Ohio May 3, 2023) (denying motion to dismiss “as to claims where an HMTA or HMR violation has occurred” and noting that administrative violations could be evidence of negligence); Diehl v. CSX Transp., Inc., 349 F. Supp. 3d 487, 505 (W.D. Pa. 2018) (rejecting supposition that “complying with both Pennsylvania tort law and a requirement of the HMTA would not be possible or that Pennsylvania tort law ‘is an obstacle to accomplishing and carrying out’ the HMTA” (quoting 49 U.S.C. § 5125(a)(2)); Tipton v. CSX Transp., Inc., 15 Civ. 311, 15 Civ. 337, 15 Civ. 497, 15 Civ. 346, 2016 WL 11501426, at *15 (E.D. Tenn. July 7, 2016) (“[T]he Court finds that the duties plaintiffs allege [the defendant] negligently violated are substantively the same as those in the HMR, and should not be preempted.”); Henderson v. GATX Corp., 9 Civ. 2312, 2012 WL 12905101, at *4 (M.D. Fla. Mar. 22, 2012) (denying defendant’s motion for summary judgment on negligence claim because of disputed issues of material fact as to whether the defendant complied with the HMTA and HMR); Riley v. Ala. Great S. R.R. Co., 2 Civ. 1620, 2002 WL 31175209, at *4 (E.D. La. Sept. 27, 2002) (holding that the “[p]laintiffs’ state negligence action poses no obstacle to accomplishing or carrying out the prescribed federal regulations [under the HMTA]” if the defendant’s products did not comply with federal law); Ordner ex rel. Ordner v. K-H Corp., 74 F. Supp. 2d 150, 156 (D.R.I. 1999) (on the defendant’s motion for summary judgment, holding that “[the] [p]laintiffs’ design defect claims may proceed to enforce the [HMR], leaving the preemption provisions of § 5125(b) inviolate”). But see Parrish v. JCI Jones Chems., Inc., 17 Civ. 518, 2019 WL 1410880, at *5 (D. Haw. Mar. 28, 2019) (holding that “imposing tort liability on [the defendant] would not be ‘substantively the same as’ the federal law requirements” because “[t]he HMTA requires that the law be violated ‘knowingly’ or ‘willfully or recklessly,’ a higher mens rea standard than that required of negligence and strict liability claims.”). 20 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
a State, political subdivision, or tribe may apply to the Secretary [of
Transportation], as provided by regulations prescribed by the Secretary, for a
decision on whether the requirement is preempted.” Pursuant to this authority,
the DOT has stated that the HMTA’s “‘knowingly’ standard in § 5123(a) is akin
to a negligence standard,” In the Matter of Mountain States Trailer, Inc. (DOT No.
1010685), No. FMCSA-2009-0133, 2013 WL 7086986, at *2–3 (Dec. 31, 2013)
(applying standard developed in previous DOT decision), and that the HMTA
“does not preempt tort claims [alleging] . . . that a person who offered a
hazardous material for transportation in commerce or transported a hazardous
material in commerce failed to comply with applicable requirements in the
HMR,” Common Law Tort Claims Concerning Design and Marking of DOT
Specification 39 Compressed Gas Cylinders, 77 Fed. Reg. 39567, 39570 (July 3, 2012).
The legislative history of the HMTA “puts extra icing on a cake already
frosted.” Yates v. United States, 574 U.S. 528, 557 (2015) (Kagan, J., dissenting); see
also Art & Antique Dealers League of Am., Inc. v. Seggos, 121 F.4th 423, 432 (2d Cir.
2024) (in a preemption case, “look[ing] to . . . legislative history to confirm our
interpretation of the text”). In 1990, when Congress amended the HMTA, it
added the present definition of “knowingly” for civil violations. See Hazardous
21 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
Materials Transportation Uniform Safety Act of 1990, Pub L. No. 101–615, § 12,
104 Stat. 3244, 3259 (1990). A House Report accompanying the HMTA
amendments stated:
Section 13 also defines the word “knowingly” to mean that (1) a person has actual knowledge of the facts giving rise to the violation; or (2) a reasonable person acting in the circumstances, exercising due care, would have such knowledge. Currently, the term is not defined in the HMTA. By including this provision, the Committee intends to cover violations that are committed negligently (as well as violations which are committed by persons who have actual knowledge).
H.R. Rep. No. 101–444, pt. 1, at 47 (1990) ((emphasis in original). Another House
Report noted that “states may maintain and enforce laws, regulations, rules,
standards or orders that are the same as their Federal counterparts.” Roth, 651
F.3d at 377 (quoting H.R. Rep. No. 101–444, pt. 2, at 24 (1990)). This legislative
history suggests that Congress not only intended for the “knowingly” definition
to encompass negligence, but it also contemplated states maintaining and
enforcing their own negligence laws running parallel to the HMRs.
KMT resists this conclusion by arguing that DCC Propane’s negligence
claim would undermine the uniformity considerations that are undoubtedly at
the heart of the HMTA preemption scheme. See Appellee’s Br. at 41–44; see also
22 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
Buono, 78 F.4th at 496 (describing the purpose of HMTA preemption as
promoting “regulatory uniformity”). As an initial matter, we reject the premise
that policy considerations can “trump the best interpretation of the statutory
text.” Olivieri v. Stifel, Nicolaus & Co., 112 F.4th 74, 90 (2d Cir. 2024) (quoting Patel
v. Garland, 596 U.S. 328, 346 (2022)). But we reject this argument on the merits,
too: as alleged in its Complaint, DCC Propane merely seeks to enforce duties
already prescribed by federal law. 8 See App’x 10–12, Count One, ¶ 12(c) and (d),
and Count Two, ¶ 12(a) and (b). And, as the Supreme Court has observed in
other preemption contexts, the “presence of a [state-law] damages remedy . . .
merely provides another reason for [defendants] to comply with identical
existing ‘requirements’ under federal law.” Lohr, 518 U.S. at 495; see also Drake v.
Lab’y Corp. of Am. Holdings, 458 F.3d 48, 65 (2d Cir. 2006) (“It is difficult to see
how state-law remedies for violation of the [federal] regulations would detract
from the uniformity of the program or interfere with its effective
8 To the extent that any of DCC Propane’s allegations rely on duties not encompassed within the HMRs, such allegations could be preempted. But they would not be preempted because the required mental state under Connecticut law is different from the required mental state for civil violations of the HMTA; rather, they would be preempted if they do not conform to the substantive requirements under federal law, such as the HMRs. We leave the district court to consider that question on remand and as DCC Propane’s legal theories develop. 23 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
administration.”). We therefore see DCC Propane’s present suit as wholly
consistent with the policies underlying HMTA preemption—namely,
uniformity—and conclude that, to the extent DCC Propane alleges that KMT
negligently violated the HMTA or HMRs, its negligence claim is not preempted.
C. DCC Propane’s Recklessness Claim We next consider whether the HMTA preempts DCC Propane’s
recklessness claim. Noting that it found “scant authority” on whether the HMTA
preempts common-law recklessness claims, the district court looked to the two
definitions of “knowingly” required for civil violations—either (1) that a person
have “actual knowledge,” or (2) that a reasonable person would have such
knowledge, see 49 U.S.C. § 5123(a)(1)(A)–(B)—and concluded that recklessness is
not “substantively the same” as either definition because it “falls somewhere in
between those two,” DCC Propane, 2024 WL 2941635, at *6. Although a common-
law recklessness claim would require a more culpable mental state than
“knowingly” as defined by § 5125(a)(1)(B) of the HMTA (i.e., a negligence
standard), the court explained that “[t]he preemption provision of § 5125(b) does
not distinguish between requirements that are more or less restrictive than the
HMTA or HMR—it excludes from its scope only those requirements that are
‘substantively the same.’” Id. Even assuming without deciding that we must
24 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
compare the mental state required for a Connecticut recklessness claim with the
defined mental states for civil violations of the HMTA under § 5123(a), rather than
for criminal violations under § 5124(a), 9 we conclude that the HMTA does not
preempt DCC Propane’s recklessness claim.
Under Connecticut common law, recklessness is “such conduct as
indicates a reckless disregard of the just rights or safety of others or of the
consequences of the action,” Doe v. Hartford Roman Cath. Diocesan Corp., 119 A.3d
462, 483 (Conn. 2015) (citations and quotation marks omitted), and more than
mere or even “gross negligence,” Matthiessen v. Vanech, 836 A.2d 394, 402 (Conn.
2003) (citations and quotation marks omitted). Rather, it is a form of “aggravated
9 Under the HMTA’s criminal-penalties section, 49 U.S.C. § 5124, a person may be fined or imprisoned for “recklessly violating this chapter or a regulation, order, special permit, or approval issued under this chapter,” id. § 5124(a) (emphasis added), where “recklessly” is defined as “when the person displays a deliberate indifference or conscious disregard to the consequences of that person's conduct,” id. § 5124(d). This definition of “recklessly” appears to be substantively similar to a common-law claim of recklessness under Connecticut law, as explained below. See Doe v. Hartford Roman Cath. Diocesan Corp., 119 A.3d 462, 483 (Conn. 2015) (recklessness is “reckless disregard of the just rights or safety of others or of the consequences of the action”) (quotation marks omitted) (citations and quotation marks omitted). However, because the parties have failed to raise and brief the question, we decline to decide whether the HMTA’s criminal-penalties provision, § 5124, may supply a “substantively the same” mental state for a state tort action. See DCC Propane, 2024 WL 2941635, at *7 (“[DCC Propane] does not contend that its claim avoids preemption because it is or could be substantively the same as a criminal HMTA claim.”). 25 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
negligence,” Frillici v. Town of Westport, 823 A.2d 1172, 1180 (Conn. 2003)
(citations and quotation marks omitted), “tend[ing] to take on the aspect of
highly unreasonable conduct, involving an extreme departure from ordinary
care,” Doe, 119 A.3d at 483 (citations and quotation marks omitted). Thus, in
relation to negligence, the greater includes the lesser: Reckless conduct is
necessarily at least negligent.
Because reckless conduct is more severe than negligent conduct, DCC
Propane’s recklessness claim imposes neither “certain nonfederal duties on the
defendant,” Buono, 78 F.4th at 501, nor “conditions beyond those imposed by the
HMR,” Roth, 651 F.3d at 377. As we explained above, a plaintiff may proceed
under a common-law tort theory because the HMTA’s definition of “knowingly”
under 49 U.S.C. § 5123(a)(1)(B) can be akin to a negligence standard. A plaintiff’s
recklessness claim is similarly not preempted because, for the plaintiff to succeed
on that claim, the defendant must have been at least negligent and therefore
potentially subject to a federal civil-enforcement action under the HMTA.
Indeed, by proceeding with a recklessness theory, DCC Propane is seeking to
prove that KMT not only negligently violated the HMRs, but also that it acted
with “reckless disregard,” a higher standard than that required by federal law.
26 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
See App’x at 11–12, Count Two, ¶ 12 (alleging reckless violations of the HMRs).
HMTA preemption therefore poses no obstacle to claims requiring proof of a
more culpable state of mind than is required to give rise to a violation of federal
law.
This conclusion is consistent with the Supreme Court’s case law construing
a similar express-preemption provision. In Lohr, the Court concluded that a
Florida tort claim was not “different from”—the language of the preemption
provision, 21 U.S.C. § 360k(a)(1)—the Food and Drug Administration’s
regulations on medical devices, even if Florida tort law required that additional
elements be proven for the plaintiff to recover damages. See 518 U.S. at 495.
Indeed, where a state-law cause of action would make “the state requirements
narrower [for the defendant], not broader, than the federal requirement,” the
narrower state-law requirements “might be ‘different from’ the federal rules in a
literal sense, [but] such a difference would surely provide a strange reason for
finding pre-emption of a state rule insofar as it duplicates the federal rule.” Id.;
see also Mink v. Smith & Nephew, Inc., 860 F.3d 1319, 1331 (11th Cir. 2017) (“[E]ven
if there are some additional elements that must be proven under Florida law, the
claim is not expressly preempted so long as the Florida elements do not implicate
27 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
any additional requirement on the device itself.”). Here, too, the additional
showing of “aggravated negligence” required for a Connecticut recklessness
claim makes the state requirements narrower, not broader, for KMT than the
federal requirements. It would make little sense indeed to allow a plaintiff to
proceed on a negligence theory, but not a recklessness theory, when the latter is
more demanding of the plaintiff.
Thus, a Connecticut recklessness claim is “substantively the same”—
meaning it “conforms in every significant respect to the Federal requirement,”
Buono, 78 F.4th at 499–500 (quoting 49 C.F.R. § 107.202(d))—as a civil violation of
the HMRs because the plaintiff will have to show at least negligent conduct by
the defendant. The HMTA therefore does not preempt DCC Propane’s
recklessness claim to the extent that it is predicated on KMT’s conduct in
violation of federal law. We express no opinion on whether DCC Propane did
indeed sufficiently state a claim under Rule 12(b)(6) for recklessness. 10
10 As noted above, the district court stated that if it concluded that DCC Propane’s recklessness claim were not preempted, it would “offer [DCC Propane] an opportunity to amend its complaint to revise its allegations of recklessness.” DCC Propane, 2024 WL 2941635, at *7 n.5. We leave it to the sound discretion of the district court to determine, on remand, whether DCC Propane should be permitted to amend its Complaint. 28 No. 24-1780 DCC Propane LLC v. KMT Enterprises, Inc.
CONCLUSION Based on the foregoing, we conclude that the HMTA does not preempt
DCC Propane’s common-law claims against KMT for negligence and
recklessness premised on KMT’s alleged violations of the HMRs. The judgment
of the district court is therefore VACATED, and this case is REMANDED to the
district court for further proceedings consistent with this opinion.