Preemption Determination No. PD-18(R); Broward County, Florida's
Requirements on the Transportation of Certain Hazardous Materials to or
From Points in the County
[Federal Register: December 27, 2000 (Volume 65, Number 249)]
[Notices]
[Page 81950-81960]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27de00-141]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
[Docket No. RSPA-98-3577 (PDA-18 (R))]
Preemption Determination No. PD-18(R); Broward County, Florida's
Requirements on the Transportation of Certain Hazardous Materials to or
From Points in the County
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Administrative determination of preemption by RSPA's Associate
Administrator for Hazardous Materials Safety.
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Applicant: Association of Waste Hazardous Materials Transporters
(AWHMT) and American Trucking Associations (ATA).
Local Laws Affected: Broward County, Florida Code of Ordinance No.
1999-53 Secs. 27-352; 27-355(a)(1); 27-356(b)(4)d.1; 27-436; 27-439(b);
27-439(e)(2); 27-439(e)(3); 27-439(e)(4); 27-439(f)(1); 27-439(g)(1)
and 27-439(g)(2).
Applicable Federal Requirements: Federal hazardous material
transportation law, 49 U.S.C. 5101 et seq. and the Hazardous Materials
Regulations (HMR), 49 CFR Parts 171-180.
Modes Affected: Highway and rail.
SUMMARY: Federal hazardous material transportation law preempts Broward
County, Florida's requirements pertaining to certain hazardous material
definitions and all requirements that rely on those definitions,
written notification of a hazardous material release, shipping paper
retention for certain hazardous materials transporters, licensing fees
for hazardous waste transporters and monthly transportation activity
reporting. Federal hazardous material transportation law does not
preempt Broward County, Florida's requirements pertaining to oral
notification of a hazardous material release, packaging standards for
hazardous waste transport vehicles, shipping paper retention for
hazardous waste transporters, periodic vehicle inspection and vehicle
marking.
FOR FURTHER INFORMATION CONTACT: Donna L. O'Berry, Office of the Chief
Counsel, Research and Special Programs Administration, U.S. Department
of Transportation, Washington, DC 20590-0001 (Tel. No. 202-366-6136).
I. Background
On April 9, 1998, AWHMT applied for a determination that the
Federal hazardous material transportation law preempts the following
provisions of the Broward County Ordinance (Ordinance) 93-47, Chapter
27:
--Ordinance 27-352 containing the definition of ``Hazardous
Materials'',
--Ordinance 27-355(a)(1) containing release reporting requirements,
--Ordinance 27-356(b)(4) d.1 and Ordinance 27-356(d)(4) a.1 containing
shipping paper retention requirements,
--Ordinance 27-356(d)(4) a.2 containing standards for waste-hauling
vehicles,
--Ordinance 27-356(d)(4) a.3 containing periodic vehicle inspection
requirements,
--Ordinance 27-356(d)(4) a.4 containing requirements that waste-hauling
vehicles be marked with an identification tag issued by the County,
--Ordinance 27-356(d)(4) a.6 containing training requirements for
drivers and other appropriate personnel,
--Ordinance 27-356(d)(4) a.7 containing fee requirements for a license
to transport discarded hazardous material within the County,
--Ordinance 27-356(d)(4) b.1 containing requirements to request a
modification from the County prior to utilizing a vehicle for
transporting a type of waste that is not specified on the current
license, and
--Ordinance 27-356(d)(4) c.1 containing reporting requirements for
monthly activity reports to be submitted to the County.
On August 6, 1998, RSPA published a public notice and invitation to
comment on AWHMT's application (63 FR 42098). The notice set forth the
text of AWHMT's application and asked that comments be filed with RSPA
on or before September 21, 1998, and that rebuttal comments be filed on
or before November 4, 1998. Comments were submitted by Nufarm, the
Hazardous Materials Advisory Council (HMAC), Freehold Cartage, Inc.,
the Association of American Railroads (AAR), Mr. Tony Tweedale, and the
Institute of Makers of Explosives (IME). AWHMT submitted rebuttal
comments.
On October 26, 1998, the County requested that RSPA stay its review
of AWHMT's application for six to eight months. The County requested a
stay because it was proposing changes to the Ordinance that would
possibly resolve the preemption issues raised in AWHMT's application.
In a December 23, 1998 letter, AWHMT opposed the County's request for a
stay and requested that RSPA proceed to issue a ruling in the matter.
On March 15, 1999, RSPA granted the County's request for a stay. The
stay was effective until July 1, 1999.
On September 28, 1999, the Broward County Commissioners adopted
Ordinance No. 1999-53 (the revised Ordinance), which amended Chapter
27. In the previous version of the Ordinance, all of the regulations at
issue in this proceeding were contained in Chapter 27, Article XII,
``Hazardous Material.'' In the revised Ordinance, the County retained a
modified version of Article XII and created a new article, Chapter 27,
Article XVII, ``Waste Transporters.'' Article XVII applies solely to
waste transporters. Some of the regulations originally challenged in
this proceeding were modified and moved to Article XVII, some were
deleted from the revised Ordinance, and others remained where they were
in the previous Ordinance.
On November 2, 1999, RSPA published a public notice reopening the
comment period and invited interested parties to comment on the
County's revised Ordinance (64 FR 59231). Comments were due by December
17, 1999, and rebuttal comments were due by January 31, 2000. RSPA
limited additional comments to a discussion of
[[Page 81951]]
the revised Ordinance. Because it appeared that the County had
substantially modified the Ordinance, RSPA requested that AWHMT
supplement its application to reflect the revisions to the Ordinance.
ATA, on behalf of AWHMT, submitted the revised application (herein
referred to as ATA/AWHMT). In addition, IME and AAR submitted comments.
On March 22, 2000, the County submitted its comments to the revised
Ordinance. On May 5, 2000, ATA/AWHMT submitted rebuttal comments to the
County's comments.
As a result of the County's changes in the revised Ordinance, ATA/
AWHMT withdrew its challenge to four of the County's requirements. ATA/
AWHMT continues to challenge the County's definitions of certain
hazardous materials and the County's requirements pertaining to release
reporting, standards for packaging, fees, monthly reporting, and
vehicle inspection. In addition, AAR continues to challenge the
County's shipping paper and vehicle marking requirements. This decision
addresses only the challenges to the revised Ordinance.
II. Federal Preemption
The Hazardous Materials Transportation Act (HMTA) was enacted in
1975 to give the Department of Transportation greater authority ``to
protect the Nation adequately against the risks to life and property
which are inherent in the transportation of hazardous materials in
commerce.'' Pub. L. 93-633 Section 102, 88 Stat. 2156, amended by Pub.
L. 103-272 and codified as revised in 49 U.S.C. 5101. The HMTA
``replace[d] a patchwork of state and federal laws and regulations * *
* with a scheme of uniform, national regulations.'' Southern Pac.
Transp. Co. v. Public Serv. Comm'n, 909 F.2d 352, 353 (9th Cir. 1980).
On July 5, 1994, the HMTA was among the many Federal laws relating to
transportation that were revised, codified and enacted ``without
substantive change'' by Public Law 103-272, 108 Stat. 745. The Federal
hazardous materials transportation law is now found at 49 U.S.C. 5101
et seq.
A statutory provision for Federal preemption was central to the
HMTA. In 1974, the Senate Commerce Committee ``endorse[d] the principle
of preemption in order to preclude a multiplicity of State and local
regulations and the potential for varying as well as conflicting
regulations in the area of hazardous materials transportation.'' S.
Rep. No. 1102, 93rd Cong. 2nd Sess. 37 (1974). A Federal Court of
Appeals affirmed that uniformity was the ``linchpin'' in the design of
the HMTA, including the 1990 amendments that expanded the preemption
provisions. Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1575
(10th Cir. 1991).
The 1990 amendments to the HMTA codified the ``dual compliance''
and ``obstacle'' criteria that RSPA had applied in issuing
inconsistency rulings before 1990.\1\ The dual compliance and obstacle
criteria are based on U.S. Supreme Court decisions on preemption. Hines
v. Davidowitz, 312 U.S. 52 (1941); Florida Lime & Avocado Growers, Inc.
v. Paul, 373 U.S. 132 (1963); Ray v. Atlantic Richfield, Inc., 435 U.S.
151 (1978). As now set forth in 49 U.S.C. 5125(a), these criteria
provide that, in the absence of a waiver of preemption by DOT under 49
U.S.C. 5125(e) or unless it is authorized by another Federal law, ``a
requirement of a State, political subdivision of a State, or Indian
tribe'' is explicitly preempted if:
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\1\ While advisory in nature, these inconsistency rulings were
``an alternative to litigation for a determination of the
relationship of Federal and State or local requirements'' and also a
possible ``basis for an application . . . [for] a waiver of
preemption.'' Inconsistency Ruling (IR), No. 2, Rhode Island Rules
and Regulations Governing the Transportation of Liquefied Natural
Gas and Liquefied Propane Gas, 44 FR 75566, 76657 (Dec. 20, 1979).
(1) Complying with a requirement of the State, political
subdivision or tribe and a requirement of [Federal hazardous
materials transportation law] or a regulation prescribed under
[Federal hazardous materials transportation law] is not possible; or
(2) The requirement of the State, political subdivision, or
Indian tribe, as applied or enforced, is an obstacle to
accomplishing and carrying out [Federal hazardous materials
transportation law] or a regulation prescribed under [Federal
hazardous materials transportation law].
In the 1990 amendments to the HMTA, Congress also added preemption
provisions on the following subject areas:
(A) the designation, description, and classification of hazardous
material.
(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.
(E) the design, manufacturing, fabricating, marking, maintenance,
reconditioning, repairing, or testing, of a package or a container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
49 U.S.C. 5125(b)(1). Unless it is authorized by another Federal
law or a DOT waiver of preemption, a non-Federal requirement on any of
these subjects is preempted when it is not ``substantively the same''
as a provision of this chapter or a regulation prescribed under this
chapter. 49 U.S.C. 5125(b)(1). REPA has defined ``substantively the
same'' to mean ``conforms in every significant respect to the Federal
requirement. Editorial and other similar de minimis changes are
permitted.'' 49 CFR 107.202(d).
In addition, 49 U.S.C. 5125(g)(1) provides that a State, political
subdivision, or Indian tribe may
impose a fee related to transporting hazardous material only if the
fee is fair and used for a purpose relating to transporting
hazardous material, including enforcement and planning, developing,
and maintaining a capability for emergency response.
Under 49 U.S.C. 5125(d)(1), any directly affected person may apply
to the Secretary of Transportation for a determination whether a State,
political subdivision or Indian tribe requirement is preempted. The
Secretary of Transportation has delegated authority to issue preemption
determinations that concern highway routing to the Federal Motor
Carrier Safety Administration (FMSCA) and those concerning all other
hazardous materials transportation issues to RSPA. 49 CFR 1.53(b) and
1.73(d)(2). Under RSPA's regulations, preemption determinations are
issued by RSPA's Associate Administrator for Hazardous Materials
Safety. 49 CFR 107.209(a).
Section 5125(d)(1) requires that notice of an application for a
preemption determination be published in the Federal Register. 49
U.S.C. 5125(d)(1). Following the receipt and consideration of written
comments, RSPA publishes its determination in the Federal Register. See
49 CFR 107.209(d). A 20-day period is allowed for filing petitions for
reconsideration. 49 CFR 107.211. Any party to the proceeding may seek
judicial review in a Federal district court. 49 U.S.C. 5125(f).
RSPA's authority to issue preemption determinations does not
provide a means for review or appeal of State enforcement proceedings,
nor does RSPA consider any of the State's procedural requirements
applied in an enforcement proceeding. The filing of an application for
a preemption determination does not operate to stay a State enforcement
proceeding.
Preemption determinations do not address issues of preemption
arising
[[Page 81952]]
under the Commerce Clause of the Constitution or under statutes other
than the Federal hazardous materials transportation law unless it is
necessary to do so in order to determine whether a requirement is
authorized by another Federal law. A State, local or Indian tribe
requirement is not authorized by another Federal law merely because it
is not preempted by another Federal statute. Colorado Pub. Util. Comm'n
v. Harmon, above, 951 F.2d at 1581 n.10.
In making preemption determinations under 49 U.S.C. 5125(d), RSPA
is guided by the principles and policy set forth in Executive Order No.
13132, entitled ``Federalism'' (64 FR 43255, Aug. 4, 1999). Section
4(a) of that Executive Order authorizes preemption of State laws only
when a statute contains an express preemption provision, there is other
clear evidence that Congress intended to preempt State law, or the
exercise of State authority directly conflicts with the exercise of
Federal authority. Section 5125 contains express preemption provisions
that RSPA has implemented through its regulations.
One commenter to this proceeding urges DOT to ``interpret its
discretionary or implied preemption authorities narrowly, specifically
its obstacle criteria.'' He states that DOT ``should only allow
[preemption] if it believes it is specifically statutorily required to,
or if there is an evident obstacle to the purpose of a federal HMT
regulatory requirement.'' The commenter contends that ``[i]f the
question is ambiguous but can be resolved by subdividing, that is
better than preempting the entire issue.'' This, he argues, is the
intent of Congress and the Federalism Executive Order.
RSPA must consider ATA/AWHMT's application under the express
preemption standards of 49 U.S.C. 5125. RSPA will analyze each issue
raised in this proceeding to determine if any of the non-Federal
requirements meet the preemption criteria in 49 U.S.C. 5125. If
preemption of a non-Federal regulation is required, RSPA, to the extent
possible, will only preempt that portion of the non-Federal regulation
that conflicts with the Federal regulation.
III. Comments and Decision
A. Definition of a Hazardous Material
1. County Definitions
The County, in Secs. 27-352 and 27-436 of the revised Ordinance,
defines the challenged definitions as follows:
Biomedical waste--also referred to as ``biohazardous waste,''
has the meaning given it in Chapter 27, Article VI, Section 214, of
the Code, as Amended.
Section 27-352. [The definition in 27-214 is substantially the same as
the definition for biomedical waste contained in 27-436, below.]
Biomedical waste--means any solid or liquid waste which may
present a threat of infection to humans. Examples include non-liquid
tissue and body parts from humans and other primates; laboratory and
veterinary waste which may contain human disease-causing agents;
discarded sharps; and blood, blood products and body fluids from
humans and other primates. The following are also included;
(a) Used, absorbent materials saturated with blood, body fluids,
or excretions or secretions contaminated with blood and absorbent
materials saturated with blood or blood products that have dried.
Absorbent material includes items such as bandages, gauzes and
sponges.
(b) Non-absorbent disposable devices that have been contaminated
with blood, body fluids or blood contaminated secretions or
excretions and have not been sterilized or disinfected by an
approved method.
(c) Other contaminated solid waste materials which represent a
significant risk of infection because they are generated in medical
facilities which care for persons suffering from diseases requiring
Strict Isolation Criteria and used by the U.S. Department of Health
and Human Services, Centers for Disease Control, CDC Guideline for
Isolation Precautions in Hospitals, July/August 1983.
Section 27-436.
Combustible liquid--is defined as a liquid having a flash point
at or above one hundred (100) degrees Fahrenheit (37.8 degrees
Celsius).
Section 27-352 (as posted on the County's Internet site on June 1,
2000).
Discarded hazardous material--means any hazardous material which
has served its original intended purpose and has been or is in the
process of being rejected, disposed of or recycled, or hazardous
material stored or accumulated in order to be eventually rejected,
disposed of or recycled. Such material may include, but is not
limited to, hazardous waste, used oil, used oil filters, waste
radiator fluid, industrial wastewater, petroleum contaminated media
and water, contaminated soils, waste fuel, leachate, or waste
photographic fixer.
Section 27-352 and Section 37-436 (with one minor variation that does
not affect the definition).
Flammable liquid--is a liquid having a flash point below one
hundred (100) degrees Fahrenheit (37.8 degrees Celsius) and having a
vapor pressure not exceeding forty (40) pounds per square inch
(absolute) (2,068 mm Hg) at one hundred (100) degrees Fahrenheit
(37.8 degrees Celsius).
Section 27-352 (as posted on the County's Internet site on June 1,
2000).
Hazardous Material--is defined as any substance or mixture of
substances which meets any one (1) of the following criteria:
(1) Hazardous waste as defined in this article.\2\
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\2\ The County defines Hazardous Waste as ``any substance
defined or identified as a hazardous waste in 40 CFR parts 260-265
and appendices, promulgated pursuant to the Resource Conservation
and Recovery Act, 42 U.S.C. Sec. 6901, et seq., as amended, and rule
730, F.A.C., as amended.'' 27-352.
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(2) Any substance listed in article XIII, appendix A of this
chapter.\3\
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\3\ Article XII regulates Wellfield Protection. Appendix A to
Article XIII contains a list of regulated substances, an indication
whether the particular substance is or is not an EPA toxic
pollutant, and EPA signal word for the substance, and the amount, in
gallons and pounds, required for a reportable spill.
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(3) any petroleum product or any material or substance
containing discarded petroleum products.
(4) Any substance identified as hazardous in the most current
version of the following regulations:
a. Comprehensive Environmental Response Compensation, and
Liability Act (42 U.S.C. Sec. 9601, et seq.).
b. Emergency Planning and Community Right-to-Know Act (42 U.S.C.
Sec. 11001, et seq.).
c. Hazardous Material Transportation Act (49 U.S.C. Sec. 1801,
et seq.).
d. Federal Insecticide, Fungicide, and rodenticide Act (7 U.S.C.
Sec. 136(a)-(y)).
Section 27-352 (as posted on the County's Internet site on June 1,
2000).
Sludge--means a solid waste pollution control residual which is
generated by any industrial or domestic wastewater treatment plant,
water supply treatment plant, air pollution control facility, septic
tank, grease trap, portable toilet or related operation, or any
other such waste having similar characteristics. Sludge may be
solid, liquid, or semisolid waste but does not include the treated
effluent from a wastewater treatment plant.
Section 27-436.
2. Comments
Several commenters argue that some of the County's definitions are
not substantively the same as the definitions in the HMR. Specifically,
ATA/AWHMT points out that the County's definition of ``hazardous
material'' is broader than ``hazardous material'' as defined in the
HMR. In addition, ATA/AWHMT contends that the County's definitions for
``combustible liquid,'' ``flammable liquid'' and ``biomedical waste''
are not substantively the same as the HMR definitions of these
materials. AAR notes that the County's definitions of ``biomedical
waste'' and ``discarded hazardous materials'' also differ from the HMR.
In addition, AAR points out that the County's definition of ``sludge''
does not have a counterpart in the HMR. Nufarm argues that the County's
inclusion in its definition of ``hazardous material'' of (1) any
petroleum product
[[Page 81953]]
or any material or substance containing discarded petroleum products
and (2) any substance identified as hazardous in the most current
version of the Federal Insecticide, Fungicide and rodenticide Act are
two examples of how the County's definition is too broad and,
therefore, not substantively the same as the HMR definition.
The County explains that the definitions in Article XVII, Sec. 27-
436, were modified to recognize other federal, state, municipal and
county agencies that have adopted rules regulating waste transporters.
In addition, the County points out that the transportation of hazardous
material in its virgin state, as product rather than waste, is not
regulated under Article XVII. In article XII, Sec. 27-352, the County
modified its definition of a hazardous material by removing one of its
five criteria. The County states that this revised definition is now
consistent with the Federal regulations.
3. Decision
Federal hazardous material transportation law preempts a non-
Federal requirement on the ``designation, description, and
classification of hazardous material'' that is not ``substantively the
same as'' the HMR. 49 U.S.C. 5125(b)(1)(A). RSPA agrees that the six
definitions of concern to the industry commenters are not
``substantively the same as'' their counterparts in the HMR or do not
have counterparts in the HMR.
Specifically:
The HMR definition of ``regulated medical waste'' at 49
CFR 173.134 appears to be most comparable to the County's definition of
``biomedical waste''. However, the County's definition is broader in
scope than the HMR definition.
The HMR define ``combustible liquid'' as ``any liquid that
does not meet the definition of any other hazard class specified in
[the HMR] and has a flash point above 60.5 deg.C (141 deg.F) and below
93 deg.C (200 deg.F). 49 CFR 173.120(b). Under the County's definition,
a combustible liquid must have a flash point at or above 37.8 deg.C
(1090 deg.F).
The HMR define ``flammable liquid'' as ``having a flash
point of not more than 60.5 deg.C (141 deg.F), or any material in a
liquid phase with a flash point at or above 37.8 deg.C (100 deg.F) that
is intentionally heated and offered for transportation or transported
at or above its flash point in a bulk packaging,'' with certain
exceptions. 49 CFR 173.120(a). Under the County's definition, a
flammable liquid must have a flash point below 37.8 deg.C (100 deg.F)
and a vapor pressure that does not exceed 40 psi at 37.8 deg.C.
The HMR define ``hazardous material'' as
a substance or material, which has been determined by the Secretary
of Transportation to be capable of posing an unreasonable risk to
health, safety, and property when transported in commerce, and which
has been so designated. The term includes hazardous substances,
hazardous wastes, marine pollutants, and elevated temperature
materials as defined in this section, materials designated as
hazardous under the provisions of Sec. 172.101 of [the HMR], and
materials that meet the defining criteria for hazard classes and
divisions in part 173 of [the HMR]. 49 CFR 171.8.
As previously mentioned, the County's definition of hazardous
material includes substances or mixtures of substances that are
hazardous wastes (as defined by the County), substances listed by the
County, petroleum products, or substances ``identified as hazardous''
in certain listed Federal ``regulations,'' which actually are Federal
statutes. The references to the ``Hazardous Materials Transportation
Act (49 U.S.C. Sec. 1801, et seq.)'' is over five years out of date and
should have been the ``Federal hazardous materials transportation law
(49 U.S.C. Sec. 5101 et seq.).''
Discarded hazardous material and sludge do not have
counterparts in the HMR.
The Six County definitions challenged by AWHTA/ATA are not
``substantively the same as'' the Federal definitions. The differences
between the County's definitions and the HMR definitions are not de
minimis, nor are they mere editorial changes. However, in order to be
preempted under the Federal hazardous materials transportation law, the
definitions as applied and enforced must relate to the areas regulated
by DOT, as set forth above.
Article XII regulates the ``generation, use, storage, handling,
processing, manufacturing, and disposal of hazardous materials.''
Revised Ordinance 27-351. The Department of Planning and Environmental
Protection (DPEP) is authorized to license, evaluate, review and
administer all hazardous materials activities * * * performed in
Broward County. Id. Article XVII regulates the transportation of
discarded hazardous material, sludge, and biomedical waste and applies
to ``all persons conducting activities within geographic boundaries of
Broward County, who transport discarded hazardous material, sludge, or
biomedical waste to, from, and within Broward County.'' Revised
Ordinance 27-435.
These two sections indicate that the County uses the challenged
definitions in defining the applicability of its regulation of
transportation in commerce. Therefore, the County's definitions of
biomedical waste, combustible liquid, discarded hazardous materials,
flammable liquid, hazardous materials and sludge are preempted under
the ``substantively the same as'' test to the extent that they relate
to transportation in commerce. In addition, all County hazardous
materials requirements that apply these six definitions are also
preempted.\4\
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\4\ In discussing these requirements later in this document,
RSPA ignores this definitional problem and assumes that the County's
definitions pertaining to hazardous materials and hazardous
materials transportation in commerce would be made consistent with
the HMR.
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This holding is consistent with prior RSPA decisions and with case
law. RSPA has consistently held that state and local hazard class and
hazardous material definitions differing from those in the HMR and used
to regulate in areas regulated by DOT are preempted because the Federal
role is exclusive.\5\ In addition, RSPA has previously determined that
non-Federal definitions
[[Page 81954]]
and classifications that result in regulating the transportation,
including loading, unloading or storage incidental thereto, of more,
fewer or different hazardous materials than the HMR, are obstacles to
uniformity in transportation regulation and thus are preempted.\6\
Recently, a Federal district court found that states are precluded from
designating, describing or classifying hazardous materials in a manner
that differs substantively from the Federal designation, description or
classification. Union Pacific R.R. v. California Publ. Util. Comm'n,
No. C-97-3660-THE (N.D. Cal. June 18, 1998), vacated in part on other
grounds, (N.D. Cal. Dec. 14, 1998).
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\5\ See generally, IR-18, Prince George's County, MD; Code
Section Governing Transportation of Radioactive Materials, 52 FR 200
(Jan. 2, 1987); IR-18(A) Prince George's County, MD; Code Section
Governing Transportation of Radioactive Materials, Decision on
Appeal, 53 FR 28850 (July 29, 1988); IR-19, Nevada Public Service
Commission Regulations Governing Transportation of Hazardous
Materials, 52 FR 24404 (June 30, 1987); IR-19(A), Nevada Public
Service Commission Regulations Governing Transportation of Hazardous
Materials, Decision on Appeal, 53 FR 11600 (April 7, 1988); IR-20,
Triborough Bridge and Tunnel Authority Regulations Governing
Transportation of Radioactive Materials and Explosives, 52 FR 24396
(June 30, 1987), correction, 52 FR 29468 (Aug. 7, 1987); IR-21,
Connecticut Statute and Regulations Governing Transportation of
Radioactive Materials, 53 FR 37072 (Oct. 2, 1987), Decision on
Appeal, 53 FR 46735 (Nov. 18, 1988); IR-26, California Department of
Motor Vehicles Regulations on Training Requirements for Operators on
Vehicles Carrying Hazardous Materials, 54 FR 16314 (Apr. 21, 1989),
correction, 54 FR 21526 (May 19, 1989); IR-28, City of San Jose,
California; Restrictions on Storage of Hazardous Materials, 55 FR
8884, (Mar. 8, 1990), appeal dismissed as moot, 57 FR 41165 (Sept.
9, 1992); IR-29, State of Maine Statutes and Regulations on
Transportation of Hazardous Materials, 55 FR 9304 (Mar. 12, 1990);
IR-30, Oakland, California; Nuclear Free Zone Act, 55 FR 9676 (Mar.
14, 1990), correction, 55 FR 12111 (Mar. 30, 1990); IR-31, State of
Louisiana Statutes and Regulations on Hazardous Materials
Transportation, 55 FR 25572 (June 21, 1990), appeal dismissed as
moot, 57 FR 41165 (Sept. 9, 1992); IR-32, City of Montevallo,
Alabama Ordinance on Hazardous Waste Transportation, 55 FR 36736
(Sept. 6, 1990), appeal dismissed as moot, 57 FR 41165 (Sept. 9,
1992). See also, Missouri Pacific R.R. Co. v. Railroad Commission of
Texas, 671 F. Supp. 466 (W.D. Tex. 1987), aff'd on other grounds,
850 F.2d 264 (5th Cir. 1988), cert. denied, 109 S. Ct. 794 (1989).
\6\ IR-5, City of New York Administrative Code Governing
Definitions of Certain Hazardous Materials, 47 FR 51991 (Nov. 18,
1982); IR-6, City of Covington Ordinance Governing Transportation of
Hazardous Materials by Rail, Barge, and Highway Within the City, 48
FR 760 (Jan. 6, 1983); IR-28 (San Jose), above; IR-29 (Maine),
above; IR-31 (Louisiana), above; and (IR-32 (Montevallo), above.
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B. Release-reporting Requirements
1. County Requirements
The revised Ordinance contains two release-reporting sections,
Sec. 27-355(a)(1) in Article XII and Sec. 27-439(f)(1) in Article XVII.
Section 27-355(a)(1) provides:
[i]n the event of an unauthorized release of a hazardous material to
the environment in an amount that is above the reportable quantity
threshold * * * the responsible party shall * * * immediately report
such incidents by telephone to DPEP. Written notification of verbal
reports to DPEP must be provided within seven (7) calendar days.
Written notification shall include at a minimum the location of the
release, a brief description of the incident that caused the release
or discovery, a brief description of the action taken to stabilize
the situation, and any laboratory analysis, if available.
Section 27-439(f)(1) provides:
[t]he owner or operator shall report any unintentional releases
during transportation to the local emergency operator (911)
immediately upon learning of the release in accordance with federal
and state regulations. All other releases shall be reported to the
DPEP in accordance with the requirements set forth in Sec. 27-
355(a)(1) of the Code, as amended.
2. Comments
ATA/AWHMT and IME challenge the County's written release-
notification requirement. They argue that the County's requirement for
a ``responsible party'' to provide written notification of an
unauthorized release that is above the reportable quantity threshold
should be preempted because it is not ``substantively the same as''
DOT's notification requirements.
ATA/AWHMT and AAR challenge the County's telephonic release
notification requirement. While ATA/AWHMT does not challenge the
County's 911 telephonic notification requirement, it does object to the
requirement to telephonically notify a DPEP operator in the absence of
a 911 emergency telephone number. ATA/AWHMT argues that if this
practice is permitted and other local jurisdictions adopt this policy,
it would result in transporters being required to maintain and
continuously update a directory of emergency numbers for local
jurisdictions. ATA/AWHMT maintains that it would take years to compile
such a directory and the task would create a tremendous burden on the
transporter.
AAR contends that the County's requirement to immediately notify a
911 operator of a hazardous material release is not the same as DOT's
immediate notification requirement. AAR states that 911 notification
satisfies the Environmental Protection Agency's (EPA) requirements but
that the HMR require immediate notification to DOT of a release of a
hazardous material that is not an EPA hazardous substance. Therefore,
AAR argues that the 911 telephonic notification requirement should be
preempted under the ``substantively the same as'' test.
The County points out that it no longer requires all transporters
to notify DPEP of transportation-related releases. Section 27-439(f)(1)
requires that the owner/operator of a motor vehicle carrying hazardous
waste immediately notify the ``911-operator or in the absence of a 911-
emergency telephone number * * * the * * * DPEP operator.'' The County
states that releases of all other materials that do not involve
transportation are regulated by Article XII. The commenters do not
discuss how the County regulations are applied and enforced.
3. Decision
RSPA has consistently held that Federal hazardous material
transportation law generally preempts only non-Federal regulations
pertaining to written reporting and not those pertaining to oral
reporting. This decision will address each type of release reporting
separately.
a. Written release reporting.
Federal hazardous material transportation law preempts a non-
Federal requirement on the ``written notification, recording, and
reporting of the unintentional release in transportation of hazardous
material'' that is not ``substantively the same as'' the HMR. 49 U.S.C.
5125(b)(1)(D). The Federal written incident-reporting requirements are
in 49 CFR 171.16. Section 171.16 requires a carrier that transports
hazardous material to submit to RSPA, within 30 days from the date of
discovery, a written report on certain incidents that occur during the
course of transportation. Such incidents include the ``unintentional
release of hazardous materials from a package (including a tank) or
[when] any quantity of hazardous waste has been discharged during
transportation.'' The report must be submitted directly to RSPA on DOT
Form F 5800.1. 49 CFR 171.16(a).\7\
---------------------------------------------------------------------------
\7\ RSPA has initiated a rulemaking to propose changes to the
incident reporting requirements and to DOT Form F 5800.1. See RSPA's
advance notice of proposed rulemaking, 64 FR 13943 (March 23, 1999).
---------------------------------------------------------------------------
As previously mentioned, Sec. 27-355(a)(1) requires a ``responsible
party'' to provide written notification of verbal reports to the County
of hazardous material releases. The written reports must be submitted
within seven calendar days and must contain specified information about
the release and any laboratory analysis that is available. The portion
of Section 27-355(a)(1) pertaining to written notification of a release
is not substantively the same as 49 CFR 171.16. The County states in
its comments that Article XII regulates releases that do not involve
transportation. However, that is not apparent from the face of the
revised Ordinance, Article XII could be construed as applying to
hazardous materials transportation or storage incidental to
transportation.
Therefore, RSPA finds that Sec. 27-355(a)(1), as it pertains to
written notification, is preempted, but only to the extent that it
relates to transportation in commerce, including storage incidental to
transportation in commerce.
This determination is consistent with previous RSPA decisions
involving non-Federal requirements for submission of written incident
reports. In Preemption Determination (PD)-21, RSPA held that a state
may require a carrier to file a written incident report with RSPA under
the same conditions specified in 49 CFR 171.16 but that it may not
require the carrier to file a copy of the Federal form or a separate
incident report directly with the State. Tennessee Hazardous Waste
Transporter Fee and Reporting Requirements, 64 FR 54474, 54481 (Oct. 6,
1999), judicial review pending, Tennessee v. U.S. Dept. of
Transportation, Civil Action No. 3-99cv-1126 (M.D. Tenn.).
In IR-2, RSPA determined that a state requirement for immediate
notification of a hazardous materials incident to
[[Page 81955]]
local emergency responders was not preempted but that the follow-up
written report was. RSPA stated that:
The written notice required to be supplied to [DOT] pursuant to
49 CFR 171.16 precludes the State from requiring additional written
notice directed to hazardous materials carriers. * * * In light of
the Federal written notice requirement * * * it is inappropriate for
a State to impose an additional written notice requirement to apply
solely to carriers already subject to the Hazardous Materials
Regulations. The detailed hazardous materials incident reports files
with [DOT] are available to the public.
64 FR at 54480, quoting, IR-2 (Rhode Island), above, affirmed on appeal
in IR-2(A), 45 FR 71881, 71884 (Oct. 30, 1980), and in National Tank
Truck Carriers, Inc. v. Burke, 535 F. Supp. 509 (D.R.I. 1982), aff'd,
698 F.2d 559 (1st Cir. 1983).
In IR-3, RSPA stated that a State or locality could not require a
carrier to directly submit a copy of DOT Form F 5800.1. RSPA said:
Subsequent written reports required within 15 days by DOT are not
necessary to local emergency response. The reports themselves are
publicly available, and [RSPA] is prepared to routinely send copies
of written reports to a designated State agency on request. Copies
of written reports required by DOT under 49 CFR 171.15 may not be
required by [the City's ordinance].
64 FR at 54480, quoting from, IR-3, City of Boston Rules Governing
Transportation of Certain Hazardous Materials by Highway Within the
City, 46 FR 18918, 18924 (Mar. 26, 1981). On appeal, RSPA reaffirmed
its position that Boston's requirement for a carrier to submit written
reports was redundant, unnecessary, and inconsistent with the HMTA and
HMR. 64 FR at 54480, citing to, IR-3(A), 47 FR 18457, 18462 (Apr. 28,
1982).
b. Oral release reporting.
The legislative history of the 1990 amendments to the HMTA
discloses that Congress did not intend 49 U.S.C. 5125 (b)(1)(D) to
cover oral incident reporting. In a report, the House Committee on
Energy and Commerce stated that:
Written notification, recording, and reporting of the
unintentional release in transportation of hazardous materials.--The
Committee believes uniform requirements for written notices and
reports describing hazardous materials incidents will allow for the
development of an improved informational database, which in turn may
be used to assess problems in the transportation of hazardous
materials. Without consistency in this area, data related to
hazardous materials incidents may be misleading and confusing.
Additional State and local requirements would also be burdensome on
those involved in such incidents and may lead to liability for minor
deviations. The oral notification and reporting of unintentional
releases has specifically been excluded from this paragraph in order
to permit State and local jurisdictions to develop the full range of
possible alternatives in emergency response capabilities (such as
requiring carriers to telephone local emergency responders).
H.R. Report No. 101-444, Par I, at 34-35 (1990) (emphasis added).
In following Congress' intent, RSPA and the courts have
consistently held that requirements for immediate, oral accident/
incident reports for emergency response purposes generally are
consistent with Federal law and regulations and, thus, not preempted.
See, IR-2 (Rhode Island), above; IR-3 (Boston), above; National Tank
Truck Carriers, Inc. v. Burke, above; Union Pacific R.R. v. California
Public Util. Comm'n, above.\8\ In IR-2 (Rhode Island), RSPA sustained a
state requirement to immediately notify the state police and two
specific state agencies of any accident. RSPA determined that
``[although the Federal Government can regulate in order to avert
situations where emergency response is necessary, and can aid in local
and State planning and preparation, when an accident does occur,
response is, of necessity, a local responsibility.'' 44 FR at 75568.
RSPA further concluded that ``a requirement for immediate notification
in certain situations furthers the State's activity in protecting
persons and property through emergency response measures.'' Id. at
75572.
---------------------------------------------------------------------------
\8\ See also, IR-28 (San Jose), above; IR-31 (Louisiana), above;
and IR-32 (Montevallo), above.
---------------------------------------------------------------------------
In IR-3 (Boston), RSPA sustained a city requirement for carriers to
immediately notify the city of a hazardous material incident. RSPA
stated:
Any immediate reporting requirement, applied differentially to
carriers of hazardous materials, that is necessary to support an
emergency response effort is not inconsistent with the HMTA. Thus
[Boston's ordinance] in requiring immediate reports for incidents
that must immediately be reported to DOT under 49 CFR 171.15 is not
inconsistent with the HMTA.
46 FR at 18924. RSPA affirmed its position on appeal by holding
that ``[f]or an incident that requires the City to undertake emergency
response, we reiterate our agreement that the City must be able to
require the carrier to notify it immediately. If the City wishes to
conduct a thorough investigation of the events at the scene, it may do
so then.'' 47 FR 18924.
Federal telephonic reporting requirements (49 CFR 171.15) are not
designed to elicit immediate on-the-scene emergency response, but
rather to assist the Federal Government in investigating and collecting
data on such incidents. In Union Pacific R.R. v. California Public
Util. Comm'n, above, at 7, the court held that ``the very substance of
the federal regulations reflect that they are not intended to address
the area of emergency `first response' but are designed to facilitate
the government's ability to promptly investigate and compile data on
major incidents involving hazardous materials.''
For the reasons discussed above, the portion of the County's
requirements in Secs. 27-355(a)(1) and 27-439(f)(1) pertaining to
immediate notification to a 911 operator of a hazardous materials
release are not preempted. However, 911 notification does not eliminate
the obligation to comply with Federal accident/incident notification
requirements.
In addition, Section 27-439(f)(1) contains a requirement that
``[a]ll other releases shall be reported to the DPEP in accordance with
the requirements set forth in Section 27-355(a)(1) of the Code, as
amended.'' RSPA has determined that the written reporting requirement
in Sec. 27-355(a)(1), as it relates to the transportation of hazardous
materials in commerce, is preempted. Therefore, the requirement in
Sec. 27-439(f)(1) to report in accordance with written reporting
requirement in Sec. 27-355(a)(1) is also preempted to the extent that
it relates to transportation of hazardous materials in commerce,
including loading, unloading and storage incidental to transportation.
In its comment, that County indicates that Sec. 27-439(f)(1)
contains a provision for reporting directly to DPEP in the absence of
911 emergency telephone number. ATA/AWHMT objects to this provision
because of the potential burden it would create for a transporter to
compile a list of secondary emergency response numbers for the various
jurisdiction in which it operates. It is not clear to RSPA what
regulation the parties are referring to. The provision for notifying a
DPEP operator in the absence of a 911 operator is not in the current
version of the revised Ordinance, which was submitted by the County to
RSPA on October 12, 1999. In addition, RSPA consulted the version of
Sec. 27-439(f)(1) currently listed on the County's Internet site and
did not find any language that was different from the County's October
1999 version of the revised Ordinance. Because RSPA does not have any
evidence that this regulation is in effect, RSPA will not address the
issue.
[[Page 81956]]
C. Shipping paper requirements.
1. County requirement.
The revised Ordinance has two sections that address recordkeeping,
including shipping paper retention requirements, Sec. 27-356(b)(4)d.1
in Article XII and Sec. 27-439(g)(1) in Article XVII. Section 27-356,
in general, sets forth the requirements for obtaining and operating
under certain types of licenses and approvals. This section applies to
(1) hazardous materials facility licenses, (2) sludge, discarded
hazardous material and biomedical waste transfer station licenses, (3)
environmental assessment and remediation licenses, and (4) special
licenses. Section 27-356(b)(4)d.1 sets forth the specific recordkeeping
and reporting requirements for hazardous material facilities that are
subject to the licensing requirements. Section 27-356(b)(4)d.1 provides
that:
[r]eports and records, including hazardous waste manifests,
bills of lading, or other equivalent manifesting for all hazardous
material disposal, shall be maintained on-site for five (5) years,
and shall be available upon request for inspection by DPEP. The
records, at a minimum, must identify the facility name and address,
type and quantity of waste, the shipping date of the waste, and the
hauler's name and address.
Section 27-439(g) contains the requirements and standards for
obtaining and operating under a waste transporter license. Section 27-
439(g)(1) requires that the owner or operator shall:
[m]aintain reports, and records, including waste manifest, bills of
lading, or other equivalent manifesting for all discarded hazardous
material, sludge, and biomedical waste disposal. Reports and records
shall be maintained for three (3) years, and shall be available upon
request for inspection by DPEP. The records, at a minimum must
identify the generator's name and address, type and quantity of
waste, the shipping date of the waste.
2. Comments
AAR argues that the County's recordkeeping requirements in Sec. 27-
439(g)(1) should be preempted as they apply to rail transporters of
hazardous waste. AAR states that neither RSPA nor the EPA imposes any
recordkeeping requirements on intermediate rail transporters of
hazardous waste. In addition, AAR states that the County has not
addressed AWHMT's initial objections to Sec. 27-356(b)(4)d.1.
Initially, AWHMT, HMAC and Freehold Cartage, Inc. objected to the
County's five-year requirement for waste manifest retention. These
organizations did not reassert their objections to the revised
Ordinance.
3. Decision
Federal hazardous material transportation law preempts a non-
Federal requirement on ``the preparation, execution, and use of
shipping documents related to hazardous material and requirements
related to the number, contents, and placement of those documents''
that is not ``substantively the same as'' the HMR. 49 U.S.C.
5125(b)(1)(C). RSPA has determined that a hazardous waste manifest is a
shipping document covered by 49 U.S.C. 5125(b)(1)(C). PD-2(R), Illinois
Environmental Protection Agency's Uniform Hazardous Waste Manifest, 58
FR 11176 (Feb. 23, 1993). In addition, 49 CFR 172.205(h) provides that
``[a] hazardous waste manifest required by 40 CFR part 262, containing
all of the information required by this subpart, may be used as the
shipping paper required by this subpart.'' Therefore, any non-Federal
requirements pertaining to hazardous waste manifests that are not
``substantively the same'' as the Federal requirements are preempted.
The Federal requirements for hazardous waste manifests are at 49
CFR Sec. 172.205. This section requires, among other things, that a
copy of the manifest * * * must be ``[r]etained by the shipper
(generator) and by the initial and each subsequent carrier for three
years from the date the waste was accepted by the initial carrier.'' 49
CFR Sec. 172.205(e)(5). EPA also requires a three-year waste manifest
retention period for hazardous waste generators and transporters. See
40 CFR 262.40 and 263.22. Neither RSPA nor EPA specifies where a
manifest must be kept.
Section 172.205(f) of 49 CFR applies to the transportation of
hazardous waste by rail. This section requires, among other things,
that rail carriers ``[r]etain one copy of the manifest and rail
shipping paper in accordance with 40 CFR Sec. 263.22.'' 49 CFR
172.205(f)(iv). Section 263.22 states that ``[i]ntermediate rail
transporters are not required to keep records pursuant to these
regulations.''
As mentioned above, Sec. 27-356(b)(4)d.1 requires that specified
licensees maintain waste manifests, bills of lading or other equivalent
manifesting, for all hazardous material disposal on-site for five
years. Since the County's requirement imposes a longer retention period
than does the HMR, five years instead of three years, and it applies to
intermediate rail transporters, which are exempt from this type of
record retention under the HMR, the County's requirement is preempted
under the ``substantively the same as'' test to the extent that the
requirement differs from the HMR (and EPA) requirements for hazardous
waste manifest retention.
Section 27-439(g)(1) requires that hazardous waste transporters
maintain for three years waste manifests, bills of lading, or other
equivalent manifesting for all hazardous material, sludge, and
biomedical waste disposal. This regulation is ``substantively the same
as'' the Federal requirements for motor vehicle transporters and,
therefore, is not preempted. However, this section is not
``substantively the same'' as the HMR requirements for record retention
by intermediate rail transporters and, therefore, is preempted as it
relates to intermediate rail transporters.
D. Standards for Packaging
1. County Requirement
The County requirement provides that:
[a]ll waste transport vehicles shall be designed to effectively
contain any release of discarded hazardous material, sludge, or
biomedical waste during transportation. Routine maintenance to
ensure the integrity of transport vehicles shall be performed by the
owner or operator. Revised Ordinance 27-439(e)(2).
2. Comments
ATA/AWHMT opposes the County's requirement for packaging standards
on the basis that DOT-required packagings are intended to effectively
contain releases of hazardous materials during transport. ATA/AWHMT
argues that the County cannot be allowed to impose packaging standards
on vehicles because it believes DOT-required packagings may fail.
ATA/AWHMT contends that it is unclear how the standards will apply
to packagings mounted on vehicles, such as cargo tanks, because they
are equipped with pressure relief valves. In addition, ATA/AWHMT argues
that the County's requirement virtually eliminates the use of flatbed
trailers and other vehicles that cannot be sealed for transportation.
ATA/AWHMT asserts that the requirement implies that a standard trailer
design is unacceptable and vehicle modifications are necessary to use
trailers for hazardous waste shipments. Finally, ATA/AWHMT states that,
since there is no equivalent regulation for carriers of virgin
hazardous material, the County is unfairly burdening waste hazardous
materials transporters.
The County states that it deleted the reference to the term
``product-tight'' in the revised Ordinance to be consistent with DOT's
packagings standards. The County contends that its revised
[[Page 81957]]
regulation is now consistent with DOT's requirements for packaging
standards.
3. Decision
Federal hazardous material transportation law preempts a non-
Federal requirement on ``the design, manufacturing, fabricating,
marking, maintenance, reconditioning, repairing, or testing of a
packaging or a container represented, marked, certified, or sold as
qualified for use in transporting hazardous material'' that is not
``substantively the same as'' the HMR. 49 U.S.C. 5125(b)(1)(E). The HMR
contain specific packaging requirements for various types of hazardous
materials packagings. See generally, 49 CFR Parts 173, 178, 179 and
180. These provisions prescribe specific design, manufacturing and
testing requirements for the hazardous material packagings.
On its face, the County's requirement appears to be more general
than the specification packaging requirements contained in the HMR and,
therefore, is not ``substantively the same as'' the Federal
requirements. However, there is no information that the County is
applying or enforcing its requirement in a manner that conflicts with
packaging provisions contained in HMR.
ATA/AWHMT raises the issue of whether certain vehicles, such as
DOT-authorized cargo tanks, flatbed trailers and other vehicles that
cannot be sealed for transportation, would meet the County's standard.
However, ATA/AWHMT has not provided any evidence that the County has
applied or enforced its packaging standard in 27-439(e)(2) to deny a
license to cargo tank motor vehicles, flatbed trailers, or any other
type of vehicle that cannot be sealed for transportation. RSPA has
developed standards for the design, manufacturing, and fabrication of
specific types of packages, such as cargo tanks. If the County's
requirement, as applied or enforced, differs from RSPA's regulations,
then the County's requirement will be preempted under the
``substantively the same as'' test.
Additionally, ATA/AWHMT initially argued that the County keys its
requirements to ``vehicles,'' which suggests that vehicles not
authorized as packagings, such as trailers, must meet packaging
standards. Again, ATA/AWHMT has not provided any evidence that the
County's packaging standards have been applied to vehicles that are not
packagings. Since there does not appear to be an actual controversy
over this issue, RSPA will not address this issue at this time.
Finally, ATA/AWHMT claims that the County's regulation imposes an
unfair burden on hazardous waste transporters because it applies only
to them and not to carriers of virgin hazardous materials. Again, RSPA
does not have sufficient evidence on how this regulation is applied and
enforced to determine if any actual burden exists. However, RSPA has
previously determined that a State or locality may regulate hazardous
materials in a manner that is consistent with the HMR even if it does
not reach as broadly as the HMR.\9\
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\9\ For a historical discussion of this issue see PD-13, Nassau
County, New York, Ordinance on Transportation of Liquefied Petroleum
Gases, Decision on Petition for Reconsideration (publication
pending).
---------------------------------------------------------------------------
E. Periodic Vehicle Inspection Requirements
1. County Requirement
The County's vehicle inspection requirement provides that:
[t]he owner or operator shall, upon request of DPEP, provide to DPEP
the licensed vehicle for inspection for compliance with the
provision of this section at any reasonable time, interval, or
location. Revised Ordinance 27-439(e)(3).
2. Comments
In its revised application, ATA/AWHMT states that it understands
that the County now waives the vehicle inspection requirement at
Sec. 27-439(e)(3) when a motor carrier supplies proof of compliance
with the Federal periodic inspection provision at 49 CFR Sec. 396.17
and 49 CFR part 180. Assuming that is so, ATA/AWHMT withdraws its
objection to the requirement. However, ATA/AWHMT states that it
continues to oppose multiple vehicle inspection requirements. AAR
continues to object to the revised Ordinance as it is written. Although
AAR does not believe that rail cars are considered ``vehicles'' under
the statute, it contends that the regulation should be preempted for
the reasons presented in AWHMT's original application.
The County states in its comments that Article XVII no longer
requires vehicle inspections prior to utilizing a vehicle for waste
transportation.
3. Decision
This issue appears to be moot. The County states that it no longer
requires inspections prior to using a vehicle for waste transportation.
The applicant and commenters provide no evidence or information to the
contrary. Additionally, ATA/AWHMT states that it understands the County
now waives the inspection requirements when a carrier demonstrates
compliance with 49 CFR Sec. 396.17 and Part 180. Since there is no
information or evidence that the County requirement is being applied or
enforced, a preemption determination concerning this requirement is not
appropriate at this time. If, in the future, there is evidence that the
County has begun applying or enforcing this requirement, then
interested parties may request a preemption determination.
F. Vehicle Marking Requirements
1. County Requirement
The County's marking requirement in Sec. 27-439(e)(4) provides
that:
[t]he owner or operator shall obtain an identification tag from DPEP
prior to utilizing a vehicle for hauling discarded hazardous
material, sludge, or biomedical waste. The identification tag must
be clearly displayed on the rear of the hauling vehicle at all
times. If the tag is lost or destroyed, the owner or operator must
apply for a new tag accompanied by the appropriate replacement fee.
This section does not apply to vehicles which solely transport
hazardous waste.
2. Comments
ATA/AWHMT did not challenge the County's marking requirement in its
revised application. AAR asserts that the County's marking requirement
should be preempted because it is not ``substantively the same as'' the
Federal marking requirements. However, AAR does not identify the
allegedly different Federal requirements.
HMAC and Freehold Cartage initially challenged the County's
requirement. Both organizations raised a concern about the regulation's
applicability to a tank truck containing certain materials in the
``heel'' of the truck. HMAC and Freehold Cartage pointed out that the
County requirement pertains to vehicles used to transport discarded
hazardous waste, which the County defines as products which have served
their original intended purpose and are in the process of being
rejected, disposed of or recycled. HMAC and Freehold Cartage argued
that ``the `heel' in a tank truck that has unloaded its cargo and is
returning to the chemical plant or proceeding to a cleaning facility
for processing the residue could be considered a `discarded hazardous
waste' and the vehicle required to display a County identification
tag.'' Both organizations contended that this would be unreasonable and
impractical. However, neither organization reiterated this objection to
the revised Ordinance. The County did not address its vehicle marking
requirement in its comments.
3. Decision
Federal hazardous material transportation law preempts a non-
Federal requirement on the ``design, manufacturing, fabricating,
marking, maintenance, reconditioning, repairing, or testing of a
packaging or container
[[Page 81958]]
represented, marked, certified, or sold as qualified for use in
transportation hazardous material'' that is not ``substantively the
same as'' the HMR. 49 U.S.C. Sec. 5125(b)(1)(E). The issue here is
whether the marking requirement at issue is designed to represent that
a packaging or container is qualified for use in transporting hazardous
material or whether it is intended to certify that the vehicle itself
has passed inspection.
RSPA held in PD-13 that a permit sticker placed on a vehicle,
rather than on a cargo tank, is not a hazardous materials marking and
is not preempted in the absence of information that the sticker is an
obstacle to accomplishing and carrying out Federal hazardous material
transportation law and the HMR. Nassau County, New York, Ordinance on
Transportation of Liquefied Petroleum Gases, 63 FR 45283, 45287 (Aug.
25, 1998). Nassau County, New York, was not a ``marking'' of hazardous
material as contemplated in 49 U.S.C. 5125(b)(1)(B), as the applicant
had claimed. RSPA reiterated this position in its decision on
reconsideration. PD-13 (Nassau County), above, n.7.
RSPA reaches a similar conclusion in this case. According to the
information provided with AWHMT's initial application, the
identification tag is a license identification tag that is required for
haulers of biomedical waste, discarded hazardous material or sludge.
See Attachment E to AWHMT's initial application. The identification tag
must be displayed on the rear of the vehicle. Id. Based on the limited
information provided, it appears that the County is not attempting to
identify the contents of, or qualify the hazardous materials packaging,
but rather the transport vehicle. Thus, the identification tag at issue
does not appear to be a ``marking'' as contemplated in 49 U.S.C.
5125(b)(1)(E) and therefore is not subject to the ``substantively the
same as'' test.
Anticipating this outcome, AWHMT, in a subsequent letter, requested
that RSPA evaluate the County's requirement under the ``obstacle'' test
if RSPA determined that the ``substantively the same as'' test did not
apply. RSPA has made this analysis and has determined that the County's
marking requirement does not create an obstacle to carrying out Federal
hazardous material transportation law or the HMR. As in PD-13, the
applicant and industry commenters have not provided evidence that the
requirement to obtain and display the required identification tag
creates any obstacle. AWHMT argued that RSPA ``has to anticipate that
without restraint more and more non-federal entities will require such
marking turning vehicles into bulletin boards and drawing attention
away from the most important marking--namely that which is required by
DOT.'' RSPA does not find this argument a sufficient basis for
justifying preemption. Therefore, based on the evidence submitted, RSPA
determines that there is insufficient information to find that the
Federal hazardous material transportation law preempts the County's
marking requirement in Sec. 27-439(e)(4).
G. Fee Requirements
1. County Requirement
Section 27-439(a) the revised Ordinance requires that ``[u]nless
otherwise exempted by this article, prior to any person transporting
to, from, and within Broward County any discarded hazardous material,
sludge, or biomedical waste, that person shall first obtain a waste
transporter license.'' Section 27-439(b) provides, in part, that
``[a]pplications [for a waste transporter license] shall be accompanied
by required fee(s) as established by the Board in Chapter 41 of the
Broward County Code of Ordinances, as amended.'' AWHMT stated that the
current fee is $175 annually per vehicle for all applicants.
2. Comments
In its original application, AWHMT argued that the County's fee
structure was inherently ``unfair'' and should be preempted under the
``obstacle'' test in 49 U.S.C. 5125(a)(2). AWHMT stated that the
County's per-vehicle fee was flat and unapportioned and pointed out
that the American Trucking Ass'ns v. Scheiner, 483 U.S. 266, 97 S. Ct
2829 (1987), the Supreme Court held that flat and unapportioned fees
violated the Commerce Clause ``internal consistency'' test and were
therefore unconstitutional. In addition, AWHMT asserted that because
they are unapportioned, flat fees could not be considered to be
``fairly related'' to a fee-payer's level of presence or activity in
the fee-assessing jurisdiction. Id. AWHMT cited several subsequent
court decisions that relied on these holdings to invalidate hazardous
materials flat fees and taxes.
AWHMT also argued that a flat fee structure violates Federal
hazardous materials transportation law, because some motor carriers
would not be able to afford multiple flat fees and would be excluded
from operating in some jurisdictions. AWHMT provided affidavits from
carriers that claimed to have limited their operations in Broward
County because of the per-vehicle fees. AWHMT argues that if the
County's fee scheme is allowed, similar fees must be allowed in the
other 30,000 non-federal jurisdictions. AWHMT stated that ``[t]he
cumulative effect of such outcome would be not only a general
undesirable patchwork of regulations necessary to collect the various
fees, but the balkanization of carrier areas of operation and
attendant, unnecessary handling of hazardous materials as these
materials are transferred from one company to another at jurisdictional
borders.''
Finally, AWHMT argued that the County was unfairly burdening motor
carriers of hazardous waste. AWHMT stated that it had reviewed the
hazardous materials incident reports filed with DOT from 1992 to 1996
and found that none of the reports involved hazardous waste releases.
AWHMT indicated that there were, however, 160 non-waste hazardous
materials incidents reported. AWHMT stated that 21 percent of these
incidents resulted from shipments traveling through the County. Of
these shipments, 12 involved air transportation and two involved rail
transportation. Thus, AWHMT asserted that the regulation and fee
burdens placed on hazardous waste motor carriers were not supported by
the risks to the County.
In its revised application, ATA/AWHMT continues to challenge the
County's licensing fees requirement for hazardous waste transporters.
ATA/AWHMT contends that ``the County's per-vehicle, flat, annual fee is
not `fair' within the meaning of 49 U.S.C. 5125(g)(1) because it is
unapportioned and thus not based on some fair approximation of use of
the services provided by the County and should be preempted.'' In
addition, ATA/AWHMT states that the County still has not provided
information about how it uses the fee. ATA/AWHMT reiterates its request
that the County provide an account of the fee usage and it reserves the
right to challenge the County's fee system under the ``used for'' test
once the County provides this information.
The County states that its fee structure for a hazardous waste
transporter license is currently being revised. The County anticipates
that the revised fees will be based on ``use of service.''
3. Decision
Federal hazardous materials transportation law provides that ``A
State, political subdivision of a State, or Indian tribe may impose a
fee related to transporting hazardous material only if the fee is fair
and used for a purpose related to transporting hazardous material,
including enforcement and
[[Page 81959]]
planning, developing, and maintaining a capability for emergency
response.'' 49 U.S.C. 5125(g)(1).
a. Fairness test. In PD-21, RSPA held that an annual remedial
action fee that transporters must pay to pick up or deliver hazardous
waste within the State is preempted as not ``fair'' when (1) it is the
same for both interstate and intrastate transporters and has no
approximation to the transporter's use of roads or other facilities
within the State and (2) genuine administrative burdens do not prevent
the application of a more finely graduated user fee. Tennessee
Hazardous Waste Transporter Fee and Reporting Requirements, above. In
that case, Tennessee imposed a $650 annual remedial action fee on
hazardous waste transporters picking up or delivering in Tennessee,
regardless of whether they were intrastate or interstate transporters.
RSPA determined that Tennessee's remedial action fee was not fair under
49 U.S.C. 5125(g)(1), and therefore was preempted, because the fee was
not based on some fair approximation of the use of facilities and it
discriminated against interstate commerce. Id. at 54478 RSPA noted that
``it is not simply a potential for multiple fees, but the lack of any
relationship between the fees paid and the respective benefits received
by interstate and intrastate carriers, that establishes discrimination
against interstate commerce.'' Id.
The present case presents a similar situation. As mentioned
previously, the County requires that any person transporting discarded
hazardous material, sludge or biomedical waste ``to, from and within''
the County must obtain a waste transporter license. The fee for
obtaining the waste transport license apparently is the same for every
transporter. Thus, the County's fee is not fair as contemplated in 49
U.S.C. 5125(g)(1) because it is not based on some fair approximation of
use of facilities and because it discriminates against interstate
commerce. Therefore, the County's fee requirement in 27-439(b) is
preempted. The County states that it anticipates its revised fee
structure will be based on the use of service. However, that is not
currently the case, and the existing regulation is preempted.
b. ``Used for'' test. As previously mentioned, Federal hazardous
material transportation law requires that a State, local or Indian
tribe fee related to hazardous material transportation must be used for
a purpose related to transporting hazardous material, including
enforcement and planning, developing, and maintaining a capability for
emergency response. 49 U.S.C. 5125(g)(1). ATA/AWHMT stated that it has
asked the County on several occasions to provide an explanation of how
it used the fee at issue, but the County never responded. However,
AWHMT did allege in a previous letter that the County used the fee as
``reimburse[ment] * * * for a variety of administrative and other
unidentified costs related to its general regulation of hazardous
materials transporters.'' The County has not provided any evidence of
how it uses the waste transporter licensing fees that it collects. In
the absence of any evidence from the County on this issue, RSPA cannot
find that the fees are used for purposes related to hazardous materials
transportation, and therefore the County's fee requirement is preempted
under the ``used for'' test.
c. ``Obstacle'' test. Because the County's requirement fails the
fairness and ``used for'' tests in 49 U.S.C. Sec. 5125(g)(1), it
creates an obstacle to carrying out the Federal hazardous materials
transportation law and thus fails the ``obstacle'' test in 49 U.S.C.
Sec. 5125(a)(2).
H. Reporting Requirements
1. County Requirement
The County requirement in Sec. 27-439(g)(2) requires that the owner
or operator:
[s]ubmit a monthly report to DPEP no later than the fifteenth (15)
day of the succeeding month. If no waste is transported during the
reporting month, the owner or operator shall send in a report
stating such.
The report shall include:
a. The waste transporter name and license number;
b. The month covered by the report;
c. The total quantity of material picked up by type;
d. The total quantity of material delivered, by type, to a
licensed disposal facility and identify the disposal location(s);
and
e. In addition to the requirements specified in a. through d.
above, waste transporters which solely transport hazardous waste
shall include in the monthly report the generator's name and
address, type and quantity of waste, and the date the waste was
collected.
2. Comments
ATA/AWHMT contends that the County's monthly reporting
requirement should be preempted under the ``obstacle'' test because
it presents an obstacle to the safe and efficient transportation of
hazardous materials. ATA/AWHMT cites the legislative history of
Federal hazardous materials transportation law and the holding in
Colorado Pub. Util. Comm'n v. Harmon, above, as justification for
its claim. Furthermore, ATA/AWHMT points out that, with the
exception of one item (the monthly totals), all of the information
required in the report can be obtained from the Uniform Hazardous
Waste Manifest.
The County asserts that it requires monthly reports so that it
can better track the transportation and disposal activities in the
County. In addition, the County states that it will use the
information from the reports to assess license fees.
3. Decision
Under the ``obstacle'' test, a non-Federal requirement, as
applied or enforced, is preempted if it creates an obstacle to
accomplishing and carrying out Federal hazardous materials law or
regulations. 49 U.S.C. 5125(a)(2). RSPA and the courts have held
numerous times that requirements for information or documentation in
excess of Federal requirements create potential delay, constitute an
obstacle to execution of the Federal hazardous materials law and the
HMR, and thus are preempted.\10\ There is no de minimis exception to
the ``obstacle'' test because thousands of jurisdictions could
impose de minimis information requirements. IR-8(A), Decision on
Appeal; State of Michigan Rules and Regulations Affecting
Radioactive Materials Transportation, 52 FR 13000, 13004 (Apr. 20,
1987).
---------------------------------------------------------------------------
\10\ See IR-2 (Rhode Island), above; IR-6 (Covington), above;
IR-8, State of Michigan; Radioactive Materials Transportation
Regulations of the State Fire Safety Board and the Department of
Public Health, 49 FR 46637 (Nov. 27, 1984); IR-8(A) (Michigan),
above; IR-15, State of Vermont; Rules for Transportation of
Irradiated Reactor Fuel and Nuclear Waste, 49 FR 46660 (Nov. 27,
1984); IR-15(A), State of Vermont; Rules for Transportation of
Irradiated Reactor Fuel and Nuclear Waste, Decision on Appeal, 52 FR
13062 (Apr. 20, 1987); IR-18 (Prince Georges County, MD, above; IR-
18(A) (Prince Georges County, MD), above; IR-19 (Nevada), above; IR-
19(A) (Nevada), above); IR-21 (Connecticut) above; IR-26 California
DMV), above; IR-27, Colorado Regulations on Transportation of
Radioactive Materials, 54 FR 16326 (Apr. 21, 1989), correction, 54
FR 20001 (May 9, 1989); IR-28 (San Jose), above; IR-30 (Oakland),
above; Chem-Nuclear Systems, Inc. v. City of Missoula, No. 80-18-M
(D. Mont. 1984); Southern Pac. Transport. Co. v. Public Serv. Comm'n
of Nevada, 909 F.2d 352 (9th Cir. 1990), reversing No. CV-N-86-444-
BRT (D. Nev. 1988); Colorado Pub. Utilities Comm'n v. Harmon, above,
reversing No. 88-Z-1524 (D. Colo. 1989).
---------------------------------------------------------------------------
The Court of Appeals held in Colorado Pub. Utilities Comm'n v.
Harmon, above, that:
[t]he Secretary's regulations contain hundreds of information and
documentation requirements, all of which have been established by
the Secretary to ensure the health and safety of citizens in every
jurisdiction. Congress specifically found that additional
documentation and information requirements in one jurisdiction
create `unreasonable hazards in other jurisdictions' and could
confound `shippers and carriers which attempt to comply with
multiple and conflicting regulations.' [Pub. L. 101-615 Sec. 2,
formerly 49 U.S.C. app. Sec. 1801].* * * In addition to obstructing
Congress' objective that safety be achieved through uniformity, the
expense of burdensome documentation and information requirements
also is contrary to Congress' intent that regulation of hazardous
materials be as cost-effective as possible. (951 F.2d at 1581).
As ATA/AWHMT points out, the County can get all of the information,
[[Page 81960]]
except for the monthly totals, from the Uniform Hazardous Waste
Manifest. To require a transporter to provide all of the information
again could create the type of confusion and lack of cost-effectiveness
contemplated in the Harmon case discussed above. Therefore, the
County's monthly reporting requirement under Sec. 27-439(g)(2) is
preempted under the ``obstacle'' test because it is in excess of the
Federal requirements.
IV. Ruling
Federal hazardous materials transportation law preempts the
following Broward County Code of Ordinances:
Portions of Ordinances 27-352 and 27-436 containing
hazardous material definitions. The definitions of biomedical waste,
combustible liquid, discarded hazardous materials, flammable liquid,
hazardous materials and sludge are preempted to the extent that they
relate to transportation in commerce. In addition, all County hazardous
materials transportation requirements that rely on these definitions
are also preempted.
Portions of Ordinances 27-355(a)(1) and 27-439(b)(1)
containing release reporting requirements. The written notification
requirements of these sections are preempted to the extent that they
relate to transportation in commerce. The oral notification
requirements of these sections are not preempted, as discussed below.
Ordinance 27-356(b)(4)d.1 containing shipping paper
retention requirements. The shipping paper requirements in this section
are preempted to the extent that they differ from HMR or EPA
requirements for shipping paper and waste manifest retention.
Ordinance 27-439(b) containing a fee requirement for
obtaining a waste transport license.
Ordinance 27-439(g)(2) containing monthly reporting
requirements. The reporting requirements in this section are preempted
to the extent that they relate to transportation in commerce.
Federal hazardous materials transportation law does not preempt the
following Broward County Code of Ordinances:
Portions of Ordinance 27-355(a)(1) and 27-439(f)(1)
containing release reporting requirements. The oral notification
requirements of these sections are not preempted. However, as discussed
above, the written notification requirement sections are preempted to
the extent that they relate to transportation in commerce.
Ordinance 27-439(g)(1) containing shipping paper retention
requirements for motor vehicle waste transporters. However, this
requirement is preempted to the extent that it applies to intermediate
rail transporters.
Ordinance 27-439(e)(2) containing standards for waste
transport vehicles.
Ordinance 27-439(e)(3) containing vehicle inspection
requirements.
Ordinance 27-439(e)(4) containing vehicle marking
requirements.
V. Petition for Reconsideration/Judicial Review
In accordance with 49 CFR 107.211(a), any person aggrieved by this
decision may file a petition for reconsideration within 20 days of
publication of this decision in the Federal Register. Any party to this
proceeding may seek review of RSPA's decision ``in any appropriate
district court of the United States * * * not later than 60 days after
the decision becomes final.'' 49 U.S.C. 5125(f).
This decision will become RSPA's final decision 20 days after
publication in the Federal Register if no petition for reconsideration
is filed within that time. The filing of a petition for reconsideration
is not a prerequisite to seeking judicial review of this decision under
49 U.S.C. 5125(f).
If a petition for reconsideration of this decision is filed within
20 days of publication in the Federal Register, the action by RSPA's
Associate Administrator for Hazardous Materials Safety on the petition
for reconsideration will be RSPA's final decision. 49 CFR 107.211(d).
Issued in Washington, DC on December 20, 2000.
Robert A. McGuire,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 00-32885 Filed 12-26-00; 8:45 am]
BILLING CODE 4910-60-M
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