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Application by Association of Waste Hazardous Materials Transporters for a Preemption Determination as to Broward County, Florida's Requirements on the Transportation of Certain Hazardous Materials to or From Points in the County
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: August 6, 1998 (Volume 63, Number 151)]
[Notices]
[Page 42098-42106]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06au98-119]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
[Docket No. RSPA-98-3577 (PDA-18(R))]
Application by Association of Waste Hazardous Materials
Transporters for a Preemption Determination as to 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: Public notice and invitation to comment.
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SUMMARY: Interested parties are invited to submit comments on an
application by the Association of Waste Hazardous Materials
Transporters (AWHMT) for an administrative determination whether
Federal hazardous materials transportation law preempts requirements
enforced by Broward County, Florida, concerning the transportation of
certain hazardous materials to or from points in the County.
DATES: Comments received on or before September 21, 1998, and rebuttal
comments received on or before November 4, 1998, will be considered
before an administrative ruling is issued by RSPA's Associate
Administrator for Hazardous Materials Safety. Rebuttal comments may
discuss only those issues raised by comments received during the
initial comment period and may not discuss new issues.
ADDRESSES: The application and all comments received may be reviewed in
the Dockets Office, U.S. Department of Transportation, Room PL-401, 400
Seventh Street, SW, Washington, DC 20590-0001. The application and all
comments are also available on-line through the home page of DOT's
Docket Management System, at ``http://dms.dot.gov.''
Please submit comments to the Dockets Office at the above address.
Comments may also be submitted by E-mail to
``rspa.counsel@rspa.dot.gov.'' Each comment should refer to the Docket
Number set forth above. A copy of each comment must also be sent to
[[Page 42099]]
(1) Mr. Michael Carney, Chairman, Association of Waste Hazardous
Materials Transporters, 2200 Mill Road, Alexandria, VA 22314, and (2)
Mr. John J. Copelan, Jr., County Attorney, 115 S. Andrews Avenue, Suite
423, Fort Lauderdale, FL 33301. A certification that a copy has been
sent to these persons must also be included with the comment. (The
following format is suggested: ``I certify that copies of this comment
have been sent to Messrs. Carney and Copelan at the addresses specified
in the Federal Register.'')
A list and subject matter index of hazardous materials preemption
cases, including all inconsistency rulings and preemption
determinations, are available through the home page of RSPA's Office of
the Chief Counsel, at ``http://rspa-atty.dot.gov.'' A paper copy of
this list and index will be provided at no cost upon request to Ms.
O'Berry, at the address and telephone number set forth in ``For Further
Information Contact'' below.
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. 202-366-4400).
SUPPLEMENTARY INFORMATION:
I. Application for a Preemption Determination
AWHMT has applied for a determination that Federal hazardous
material transportation law, 49 U.S.C. 5101 et seq., preempts certain
provisions of the Broward County Code of Ordinances 93-47 (``Code'').
The Code is an extensive set of regulations that is designed to protect
the Biscayne Aquifer from possible harm due to the infiltration of
hazardous materials into the aquifer. The Code was amended in 1993 to
address concern pertaining to generation, use, storage, handling,
processing, manufacturing and disposal of hazardous materials in
Broward County. The text of AWHMT's application and a list of
attachments are set forth in Appendix A. A paper copy of the
attachments to AWHMT's application will be provided at no cost upon
request to Ms. O'Berry, at the address and telephone number set forth
in ``For Further Information Contact'' above.
AWHMT's challenges the definition of ``Hazardous Materials'' and
related terms used in the Code and nine specific requirements:
--Code Sec. 27-355(a)(1) containing release reporting requirements,
--Code Sec. 27-356(b)(4)d.1 and Code Sec. 27-356(d)(4)a.1 containing
shipping paper retention requirements,
--Code Sec. 27-356(d)(4)a.2 containing standards for waste-hauling
vehicles,
--Code Sec. 27-356(d)(4)a.3 containing periodic vehicle inspection
requirements,
--Code Sec. 27-356(d)(4)a.4 containing requirements that waste-hauling
vehicles be marked with an identification tag issued by the County,
--Code Sec. 27-356(d)(4)a.6 containing training requirements for
drivers and other appropriate personnel,
--Code Sec. 27-356(d)(4)a.7 containing fee requirements for a license
to transport discarded hazardous material within the County,
--Code Sec. 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
--Code Sec. 27-356(d)(4)c.1 containing reporting requirements for
monthly activity reports to be submitted to the County.
The following discussion is based upon the copy of Broward County's
Code, Chapter 27 attached to AWHMT's application.
Definition of ``Hazardous Material'' and Related Terms
Code Sec. 27-352 defines a hazardous material to include, among
other things, any substance identified as hazardous in the most current
version of the HMR, as well as other Federal regulations, and any other
substance not previous specific that is known to be a hazard due to
quantity, concentration, physical, chemical or infectious
characteristics and which the Department of Natural Resources
Protection (DNRP) determines to pose an actual threat or potential risk
to water supply, the environment or health and safety. Secs 27-352
(4)and (5). AWHMT contends that the County's definition of hazardous
material is broader than the definition of a hazardous material
contained in the HMR. In addition, AWHMT contends that the definitions
of combustible liquid and flammable liquid found in Code Sec. 27-352
are not consistent with the Federal standards. AWHMT challenges the
Ordinance's provisions concerning the designation, description and
classification of hazardous materials as not ``substantially the same''
as DOT's designation and classification system found at 49 CFR 172.
Release Reporting
Code 27-355(a)(1) requires the responsible party of an unauthorized
hazardous material release to immediately report the release by
telephone to the DNRP and to file written notification of its verbal
report with the DNRP within seven calendar days. The Code defines
responsible party as, among other things, the owner or operator of a
facility or any person who accepts or accepted any hazardous material
for transport. The Code defines facility to include, among other
things, any motor vehicle, vessel, rolling stock, or aircraft.
AWHMT states that the written requirements are not substantially
the same as the requirements of 49 CFR 171.16, which require a carrier
to report in writing to DOT each incident of an unintentional release
of a hazardous materials or discharge of hazardous waste that occurs
during the course of transportation. The written report must be filed
with DOT within 30 days of the discovery of the release.
Concerning the oral notification requirement, AWHMT also challenges
the specific requirement that the notification must go to the DNRP,
rather than a local emergency operator. AWHMT contends that the time
required to locate the proper local agency number would create an
unreasonable delay in reporting. Thus, AWHMT requests that the County's
requirement to notify a specific local agency, rather than the local
emergency operator, be preempted under the obstacle test.
Shipping Paper Requirements
Code Secs. 27-356(b)(4)d.1 and 27-356(d)(4)a.1 and Sec. 27-
356(b)(4)d.1 require owners and operators of hazardous material
facilities to retain copies of hazardous waste manifests on-site for
five years. AWHMT cites to EPA regulations that require generator and
transporters to retain copies of the Uniform Manifest for three years.
AWHMT further asserts that there is no Federal requirement for the
location where such records must be maintained. AWHMT contends that
because DOT recognizes the Uniform Manifest as a shipping paper, the
County's requirements should be preempted under the ``substantively the
same as'' test.
Standards for Packagings
Code Sec. 27-356(d)(4)a.2 requires all waste hauling vehicles to be
product-tight or to be designed to effectively contain any release of
hazardous material during transportation. AWHMT
[[Page 42100]]
contends that terms such as ``product-tight'' and ``any release'' may
exclude DOT-authorized cargo tanks, since those tanks are equipped with
pressure relief valves. AWHMT also contends that, by specifically
referring to vehicles, the County Ordinance suggests that vehicles not
authorized as packagings, such as trailers, must meet packaging
standards. AWHMT contends that the County Ordinance does not grant
equivalency to the HMR's packaging standards contained in 49 CFR 173,
178 and 180, and, therefore, should be preempted as not ``substantively
the same as'' the Federal requirement.
Periodic Vehicle Inspection Requirement
Code Sec. 27-356(d)(4)a.3 gives the County the option to inspect
licensed vehicles. The Ordinance provides that the DNRP can waive the
inspection of such vehicles if the licensee submits evidence that the
vehicle has passed an inspection conducted pursuant to applicable
Federal or state regulations. AWHMT asserts that the County's periodic
inspection regulation causes a delay in the transportation of hazardous
materials and should be preempted under the obstacle test.
Vehicle Marking Requirements
Code Sec. 27-356(d)(4)a.4 requires that vehicles used to transport
discarded hazardous materials be marked with a County identification
tag. AWHMT contends that this provision should be preempted under 49
U.S.C. 5125(b)(1)(E) because it is not substantively the same as the
Federal requirements for marking a package or container qualified for
transporting hazardous materials.
Training Requirements
Code Sec. 27-356(d)(4)a.6 requires that a licensee provide ``all
drivers and other appropriate personnel * * * classroom instruction
and/or on the job training that ensures compliance with the provisions
of the [Code].'' Training must include annual training in the
implementation of the licensee's spill contingency plan and procedures.
The Ordinance requires that records, containing the name of each
employee trained and dates of training must be kept for three years
following the employee's last day of work or until the carrier goes out
of business. AWHMT contends that localities do not have the authority
to impose training requirements on hazmat employees, and, therefore,
Code Sec. 27-356(d)(4)a.6 should be preempted under the obstacle test.
Fee Requirements
Code Sec. 27-357(a) authorizes the DNRP to charge fees for
licenses. Code Sec. 27-356(d)(4)a.7 requires an annual fee for a
discarded hazardous materials license. Currently the fee is $175 per
vehicle. Section 5125(g)(1) of 49 U.S.C. permits a State, political
subdivision of a State, or Indian tribe to impose a fee related to
transporting hazardous material only if the fee is fair and used for
purposes related to transporting hazardous material. AWHMT challenges
the County's fees under the obstacle test.
License Modification Requirements
Code Sec. 27-356(d)b.1 provides that ``vehicles may only be
utilized for the type of wastes for which the licensee is authorized to
haul. A license modification must be requested and approved by DNRP
prior to utilizing a vehicle for hauling a waste which is not specified
on the current license.'' AWHMT contends that this advance notice
requirement has the potential to unreasonably delay hazardous materials
transportation and cites to 49 CFR 177.800(d), which requires that
shipments of hazardous materials must be transported without
unnecessary delay. For these reasons, AWHMT requests that RSPA preempt
the regulation under the obstacle test.
Reporting Requirements
Code 27-356(d)(4)c.1 requires carriers of discarded hazardous
materials to submit monthly reports to the DNRP. The reports must ``at
a minimum, identify the facility name and address for each source,
type, and quantity of waste, the date the waste was collected, and the
final destination of each waste that was hauled during the preceding
month.'' The report must also include ``a summary of the total
quantities of each type of waste that was hauled by the licensee.''
AWHMT challenges this provision under the obstacle test.
II. Federal Preemption
Section 5125 of Title 49 U.S.C. contains several preemption
provisions that are relevant to AWHMT's application. Subsection (a)
provides that--in the absence of a waiver of preemption by DOT under
Sec. 5125(e) or specific authority in another Federal law--a
requirement of a State, political subdivision of a State, or Indian
tribe is preempted if
(1) Complying with a requirement of the State, political
subdivision or tribe and a requirement of this chapter or a
regulation issued under this chapter is not possible; or
(2) The requirement of the State, political subdivision, or
Indian tribe, as applied or enforced, is an obstacle to the
accomplishing and carrying out this chapter or a regulation
prescribed under this chapter.
These two paragraphs set forth the ``dual compliance'' and ``obstacle''
criteria which RSPA had applied in issuing inconsistency rulings before
1990, under the original preemption provisions in the Hazardous
Materials Transportation Act (HMTA). Pub. L. 93-633 Sec. 112(a), 88
Stat. 2161 (1975). 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).
Subsection (b)(1) of 49 U.S.C. 5125 provides that a non-Federal
requirement concerning any of the following subjects, that is not
``substantively the same as'' a provision of Federal hazardous
materials transportation law or a regulation prescribed under that law,
is preempted unless it is authorized by another Federal law or DOT
grants a waiver of preemption:
(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 packaging or
a container represented, marked, certified, or sold as qualified for
use in transporting hazardous material.
Subsection (g)(1) of 49 U.S.C. 5125 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 materials, including enforcement and planning, developing,
and maintaining a capability for emergency response.
These preemption provisions in 49 U.S.C. carry out Congress's view
that a single body of uniform Federal regulations promotes safety in
the transportation of hazardous materials. In considering the HMTA, 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).
[[Page 42101]]
When it amended the HMTA in 1990, Congress specifically found that:
(3) Many States and localities have enacted laws and regulations
which vary from Federal laws and regulations pertaining to the
transportation of hazardous materials, thereby creating the
potential for unreasonable hazards in other jurisdictions and
confounding shippers and carriers which attempt to comply with
multiple and conflicting registration, permitting, routing,
notification, and other regulatory requirements,
(4) Because of the potential risks to life, property, and the
environment posed by unintentional releases of hazardous materials,
consistency in laws and regulations governing the transportation of
hazardous materials is necessary and desirable,
(5) In order to achieve greater uniformity and to promote the
public health, welfare, and safety at all levels, Federal standards
for regulating the transportation of hazardous materials in
intrastate, interstate, and foreign commerce are necessary and
desirable.
Pub. L.101-615 Sec. 2, 104 Stat. 3244. A Federal Court of Appeals has
found that uniformity was the ``linchpin'' in the design of the HMTA,
including the 1990 amendments which expanded the preemption provisions.
Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1575 (10th Cir.
1991). (In 1994, the HMTA was revised, codified and enacted ``without
substantive change,'' at 49 U.S.C. Chapter 51. Pub. L. 103-272, 108
Stat. 745.)
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 make
determinations of preemption that concern highway routing to FHWA and
those concerning all other hazardous materials transportation to RSPA.
49 CFR 1.48(u)(2), 1.53(b).
Section 5125(d)(1) requires that notice of an application for a
preemption determination must be published in the Federal
RegisterFollowing the receipt and consideration of written comments,
RSPA will publish its determination in the Federal Register. See 49
C.F.R. 107.209(d). A short period of time is allowed for filing of
petitions for reconsideration. 49 C.F.R. 107.211. Any party to the
proceeding may seek judicial review in a Federal district court. 49
U.S.C. 5125(f).
Preemption determinations do not address issues of preemption
arising 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 F2d 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. 12612, entitled
``Federalism'' (52 FR 41685, Oct. 30, 1987). Section 4(a) of that
Executive Order authorizes preemption of State laws only when a statute
contains an express preemption provision, there is other firm and
palpable evidence of Congressional intent to preempt, or the exercise
of State authority directly conflicts with the exercise of Federal
authority. Section 5125 contains express preemption provisions, which
RSPA has implemented through its regulations.
III. Public Comment
Comments should be limited to whether Federal hazardous material
transportation law preempts Broward County, Florida's requirements
challenged by AWHMT. Comments should:
(A) Set forth in detail the manner in which these requirements are
applied and enforced; including but not limited to:
(1) Whether the County's description and classification of
hazardous materials substantially differs from the HMR and potential
effects of any differences;
(2) The impact of the County's requirement in Sec. 27-355(a)(1) to
immediately notify the DNRP, rather than an emergency response number,
of a release;
(3) Whether the County's requirements in Sec. 27-356(d)(4)a.2 that
packages be product-tight or contain any release on cargo tanks
includes DOT-authorized cargo tanks and whether this requirement
applies to vehicles that are not considered packages;
(4) The amount of fees collected and the purposes for which those
fees are used;
(5) The potential delays that would be caused by the County's
requirement in 27-356(d)b.1 that a licensee request a license
modification prior to hauling a waste that is not specified on the
current license; and
(B) Specifically address the preemption criteria described in Part
II above.
Persons intending to comment should review the standards and
procedures governing RSPA's consideration of applications for
preemption determinations, set forth at 49 CFR 107.201-107.211.
Issued in Washington, DC, on July 31, 1998.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety, Research and
Special Programs Administration.
Appendix A--Before the United States Department of Transportation
Office of Hazardous Materials Safety
Application of the Association of Waste Hazardous Materials
Transporters To Initiate a Proceeding To Determine Whether Various
Requirements Imposed by the County of Broward, Florida on Persons
Involved in the Transportation of Certain Hazardous Materials to or
From Points in the County Are Preempted by the Hazardous Materials
Transportation Act
April 9, 1998.
Interest of the Petitioner
The Association of Waste Hazardous Materials Transporters
(AWHMT) represents companies that transport, by truck and rail,
waste hazardous materials, including industrial, radioactive and
hazardous materials, throughout the United States, including points
to and from the County of Broward, FL (County). Despite full
compliance with the hazardous materials regulations (HMRs), members
of the AWHMT are precluded from transporting certain hazardous
materials to or from points in the County unless certain
requirements of the Broward County Hazardous Materials Ordinance
(Ordinance) <SUP>1</SUP> are met. The AWHMT asserts that the County
requirements are in contravention to the Hazardous Materials
Transportation Act (HMTA).
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\1\ Ordinance 93-47, enacted on November 23, 1993.
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Background
When the County proposed its Ordinance in 1993, the hazardous
materials transportation industry submitted written and oral
comments.<SUP>2</SUP> The substance of the comments pointed out how
the proposed requirements were inconsistent with federal
requirements and urged the County to conform the proposed
requirements to federal standards. However, with one notable
exception that will be mentioned later, the County enacted the
proposed rules without substantive change. The County indicated that
it preferred to deal with any inconsistencies with federal standards
on a case-by-case basis, stating, in a cover letter accompanying the
final text of the Ordinance, that, ``if an industry member has a
specific question regarding the applicability of the ordinance to a
particular fact pattern
[[Page 42102]]
or case, DNRP will address the concern as need arises.''
<SUP>3</SUP>
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\2\ Letter to Lisa Zima Bosch, Office of the Broward County
Attorney, from Cynthia Hilton, Chemical Waste Transportation
Institute (CWTI), November 4, 1993; letter to Kevin Burger, Broward
County Department of Natural Resource Protection, from Cynthia
Hilton, CWTI, November 18, 1993; and statement before the Broward
County Commissioners, by Cynthia Hilton, CWTI, November 23, 1993.
\3\ Letter to Cynthia Hilton, CWTI, from Lisa Zima Bosch, Office
of the County Attorney, May 26, 1994.
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Despite the County's ``flexible'' enforcement promise, it has
not deterred the County from enforcing requirements, as the attached
affidavits attest, which we believe to be inconsistent with the HMR
and therefore subject to preemption under the HMTA. The Ordinance
provides that the County may use ``[a]ny enforcement proceedings
authorized by the Code of the Laws of Florida * * * to enforce the
provisions of [the Ordinance].'' <SUP>4</SUP> In addition,
violations of the Ordinance may result in the suspension or
revocation of a permit.<SUP>5</SUP>
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\4\ Broward County Code of Ordinances Chapter 27, Article XII,
(hereinafter ``Code''), Sec. 27-357(d). Attached is evidence of the
County's use of this authority. In a notice of violation, the County
declares its authority to enforce civil penalties under Code
Sec. 27-38(f)(2)and criminal penalties under Secs. 775.082 and
775.083, Florida Statutes.
\5\ See attached ``General Conditions'' of a License, item 1.
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The Ordinance authorizes the County's Department of Natural
Resource Protection (DNRP) ``to the extent permitted by state and
federal law * * * to license, evaluate, review, and administer all
hazardous materials activities * * * performed in Broward County.''
<SUP>6</SUP> The Ordinance defines ``hazardous material'' as:
\6\ Code Sec. 27-351. Copy attached.
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any substance or mixture of substances which meets any one of the
following criteria:
(1) Hazardous materials as defined in this Article; <SUP>7</SUP>
or
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\7\ ``Hazardous materials'' is defined as ``any substance
defined or identified as a hazardous material in 40 CFR parts 260-
265 and appendices, promulgated pursuant to the Resource
Conservation and Recovery Act * * *.''
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(2) Any substance listed in [Code] Chapter 27, Article XIII,
Appendix A; or
(3) Any petroleum product or any material or substance
containing discarded petroleum products; or
(4) Any substance identified as hazardous in the most current
version of the following regulations:
(a) Comprehensive Environmental Response Compensation, and
Liability Act * * *,
(b) Emergency Planning and Community Right-to-Know Act,
(c) Hazardous Material Transportation Act * * *,
(d) Federal Insecticide, Fungicide, and Rodenticide Act * * *.
(5) Any substance, not specified above, which is known to be
hazardous due to quantity, concentration, physical, chemical or
infectious characteristics and which DNRP determines poses an actual
threat or potential risk to water supplies, to the environment or to
health and safety.<SUP>8</SUP>
\8\ Code Sec. 27-352: Definition of ``Hazardous Material.''
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Clearly, the Ordinance applies to and affects the transportation
of hazardous materials regulated pursuant to the HMTA.
County Requirements for Which a Determination is Sought
This application seeks preemption of the following County
requirements:
<bullet> Code Sec. 27-352: Definition of ``Hazardous Material''
and related terms.
<bullet> Code Sec. 27-355(a)(1) : Release reporting.
<bullet> Code Sec. 27-356(b)(4)d.1. & Sec. 27-356(d)(4)a.1.:
Shipping paper requirements.
<bullet> Code Sec. 27-356(d)(4)a.2.: Standards for packagings.
<bullet> Code Sec. 27-356(d)(4)a.3.: Periodic vehicle inspection
requirements.
<bullet> Code Sec. 27-356(d)(4)a.4.: Vehicle marking
requirements.
<bullet> Code Sec. 27-356(d)(4)a.6.: Training requirements.
<bullet> Code Sec. 27-356(d)(4)a.7.: Fee requirements.
<bullet> Code Sec. 27-356(d)(4)b.1.: Prenotification
requirements.
<bullet> Code Sec. 27-356(d)(4)c.1.: Recordkeeping and reporting
requirements.
Federal Law Provides for the Preemption of Non-Federal Requirements
When Those Non-Federal Requirements Fail Certain Federal Preemption
Tests
The Hazardous Materials Transportation Act (HMTA) was enacted in
1975 to give the U.S. Department of Transportation (DOT) 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.'' <SUP>9</SUP> By vesting primary
authority over the transportation of hazardous materials in the DOT,
Congress intended to ``make possible for the first time a
comprehensive approach to minimization of the risks associated with
the movement of valuable but dangerous materials.'' <SUP>10</SUP> As
originally enacted, the HMTA included a preemption provision ``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.'' <SUP>11</SUP> The Act
preempted ``any requirement, of a State or political subdivision
thereof, which is inconsistent with any requirement set forth in
[the Act], or in a regulation issued under [the Act].''
<SUP>12</SUP> This preemption provision was implemented through an
administrative process where DOT would issue ``inconsistency
rulings'' as to,
\9\ P.L. 93-633 Sec. 102.
\10\ S. Rep. 1192, 93rd Cong., 2d Sess., 1974, page 2.
\11\ S. Rep. 1192, 93rd Cong., 2d Sess, 1974, page 37.
\12\ P.L. 93-633 Sec. 112(a).
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[w]hether compliance with both the State or political subdivision
requirement and the Act or the regulations issued under the Act is
possible; and [t]he extent to which the State of political
subdivision requirement is an obstacle to the accomplishment and
execution of the Act and the regulations issued under the Act.''
<SUP>13</SUP>
\13\ 41 FR 38171 (September 9, 1976).
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These criteria, commonly referred to as the ``dual compliance''
and ``obstacle'' tests, ``comport[ed] with the test for conflicts
between Federal and State statutes enunciated by the Supreme Court
in Hines v. Davidowitz, 312 U.S. 52 (1941).'' <SUP>14</SUP>
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\14\ 41 FR 38168 (September 9, 1976).
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In 1990, Congress codified the dual compliance and obstacle
tests as the Act's general preemption provision.<SUP>15</SUP> The
1990 amendments also expanded on DOT's preemption authorities.
First, Congress expressly preempted non-federal requirements in five
covered subject areas if they are not ``substantively the same'' as
the federal requirements. These covered subject areas are:
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\15\ 49 U.S.C. Sec. 5125(a).
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<bullet> The designation, description, and classification of
hazardous materials.
<bullet> The packing, repacking, handling, labeling, marking and
placarding of hazardous materials.
<bullet> The preparation, execution, and use of shipping
documents pertaining to hazardous materials and requirements
respecting the number, content, and placement of such documents.
<bullet> The written notification, recording, and reporting of
the unintentional release in transportation of hazardous materials.
<bullet> The design, manufacturing, fabrication, marking,
maintenance, reconditioning, repairing, or testing of a package or
container which is represented, marked, certified, or sold as
qualified for use in the transportation of hazardous materials.
<SUP>16</SUP>
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\16\ 49 U.S.C. 5125(b).
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``Substantively the same'' was defined to mean ``conforms in
every significant respect to the Federal requirement. Editorial and
other similar de minimis, changes are permitted.'' <SUP>17</SUP>
Second, non-federal highway routing requirements that fail to
satisfy the federal standard under 49 U.S.C. 5112(b) are preempted.
<SUP>18</SUP> Third, non-federal registration and permitting forms
and procedures that are not ``the same'' as federal regulations to
be issued are preempted. <SUP>19</SUP> Forth, non-federal fees
related to the transportation of hazardous materials are preempted
unless the fees are ``fair and used for a purpose related to
transporting hazardous materials.'' <SUP>20</SUP> These preemption
authorities are limited only to the extent that non-federal
requirements are ``otherwise authorized'' by federal law. A non-
federal requirement is not ``otherwise authorized by Federal law''
merely because it is not preempted by another federal statute.
<SUP>21</SUP>
---------------------------------------------------------------------------
\17\ 49 CFR 107.202(d).
\18\ 49 U.S.C. 5125(c).
\19\ 49 U.S.C. 5119(c)(2).
\20\ 49 U.S.C. Sec. 5125(g).
\21\ Colo. Pub. Util. Comm'n v. Harmon, 951 F. 2d, 1571, 1581
n.10, (10th Cir. 1991).
---------------------------------------------------------------------------
The hazardous materials regulations (HMRs) have been promulgated
in accordance with the HMTA's direction that the Secretary of
Transportation ``issue regulations for the safe transportation of
hazardous material in intrastate, interstate, and foreign
commerce.'' <SUP>22</SUP> ``Transportation'' is defined as ``the
movement of property and loading, unloading, or storage incidental
to the movement.'' <SUP>23</SUP>
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\22\ 49 U.S.C. 5103(b).
\23\ 49 U.S.C. 5102(12).
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[[Page 42103]]
Our review of federal law and the Ordinance lead us to believe
that the following specific Ordinance requirements are subject to
preemption pursuant to 49 U.S.C. 5125(a)(2) and (b) absent further
modification and/or clarification:
The Designation, Description, and Classification of Hazardous
Material in Transportation is Reversed to the Federal Government
The HMTA provides that non-federal rules designating,
describing, and classifying hazardous materials for transportation
is preempted unless the non-federal rules are substantively the same
as the federal rules. As noted above, Code Sec. 27-352 defines
``hazardous material'' more broadly than the HMRs. Likewise, Code
Sec. 27-352 contains definitions of ``combustible liquid'' and
``flammable liquid'' that are not consistent with federal
standards.<SUP>24</SUP> The disparity between federal and County
definitions, the redundancy within the County's definitions, and, in
particular, the open-ended discretion given the DNRP at Sec. 27-
352--Hazardous materials--(5) to name and regulate additional
substances of concern, illustrates the confusion that is faced by
hazardous materials transporters in understanding their regulatory
obligations.<SUP>25</SUP> Clearly, the Ordinance provisions relating
to the ``designation, description, and classification of hazardous
materials'' are not ``substantively the same'' as DOT's designation
and classification system found at 49 CFR 172. We believe this
classification scheme, as it affects hazardous materials in
transportation, is preempted pursuant to 49 U.S.C. 5125(b)(1)(A).
---------------------------------------------------------------------------
\24\ Also see County's definition of ``biomedical waste''.
\25\ Even the County's attempt to clarify materials of concern
by reference to federal law provokes confusion. The ordinance states
that a ``hazardous material,'' in the County's terminology, includes
``any substance identified as hazardous'' according to a number of
federal statutes. ``Hazardous substance'' is a term used in the
Comprehensive Environmental Response Compensation and Liability Act
(CERCLA). The Emergency Planning and Community Right-to-Know Act
(SARA Title III), lists ``acutely hazardous substances.''
``Hazardous substance,'' in the context of the HMTA, references the
hazardous substance list in CERCLA, making the reference to the HMTA
superfluous. No materials are identified as ``hazardous substances''
in the Federal Insecticide, Fungicide, and Rodenticide Act.
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The Written Notification, Recording, and Reporting of the
Unintentional Release in Transportation of Hazardous Material is
Reversed to the Federal Government and Locally Imposed Oral
Reporting Requirements Inconsistent With Federal Requirements Pose
an Obstacle to the Accomplishment and Carrying Out of the HMTA
Code Sec. 27-355(a)(1) requires the ``responsible party'' of an
unauthorized hazardous material release to ``immediately report''
unauthorized releases of hazardous materials by telephone to the
DNRP. Among other things, a ``responsible party'' is defined as the
``owner or operator of a facility'' where a ``facility'' includes
``any . . . motor vehicle, vessel, rolling stock, or aircraft,'' and
``[a]ny person . . . who accepts or accepted any hazardous material
for transport . . .''<SUP>26</SUP> The Code also requires that
written notification of these verbal reports must be filed with the
DNRP within seven calendar days. The written notification must
``include at a minimum the location of the release, a brief
description of the incident that caused the release . . . a brief
description of the action taken to stabilize the situation, and any
laboratory analysis, if available.''<SUP>27</SUP>
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\26\ Code Sec. 27-352, definitions of ``responsible party'' and
``facility.''
\27\ Code Sec. 27-355(a)(1).
---------------------------------------------------------------------------
In addressing this issue, RSPA will have to distinguish between
the County's written and verbal notification requirements. First, it
is clear that the County's written notification requirements are not
substantively the same as corresponding federal
requirements.<SUP>28</SUP> The HMTA expressly preempts such
requirements.<SUP>29</SUP> DOT has even moved to preempt non-federal
written incident reports when the non-federal requirement has been
only ``to provide copies of the incident reports filed with [DOT] .
. .''<SUP>30</SUP> On the other hand, RSPA has generally not found
inconsistent requirements for immediate, oral incident reports.
<SUP>31</SUP> While we do not dispute the necessity of and, in fact,
support immediate notice following an incident, we ask RSPA to
preempt the specific requirement that the notice must go to the
DNRP. Broward County is but one of over 30,000 local governmental
jurisdictions in the country. In recognition of this fact, the U.S.
Environmental Protection Agency provided an exception from release-
reporting requirements for ``an owner or operator of a facility
[which includes motor vehicles, rolling stock, and aircraft] from
which there is a transportation-related release if the owner/
operator provides immediate notice to the ``911 operator, or in the
absence of a 911 emergency telephone number, to the operator.''
<SUP>32</SUP> A ``transportation-related release'' is defined as a
``release during transportation, or storage incident to
transportation if the stored substance is moving under active
shipping papers and has not reached the ultimate consignee.''
<SUP>33</SUP> If all non-federal jurisdictions required immediate
reporting to a specific local agency, telephone-like books of
emergency phone numbers and reporting requirements would have to be
carried in every vehicle. In fact, we believe that the effort to
locate the correct number of each jurisdiction would unreasonably
delay such notice. For these reasons, we request that RSPA find
preempted the requirement to notify a specific local agency in lieu
of a notice to the local emergency operator under its obstacle test
preemption authority.<SUP>34</SUP>
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\28\ 49 CFR 171.16.
\29\ 49 U.S.C. 5125(b)(1)(D).
\30\ IR-31, 55 FR 25582 (June 21, 1990).
\31\ IR-2, 44 FR 75566 (December 20, 1979); IR-3, 45 FR 76838
(November 20, 1980); IR-32, 55 FR 36736 (September 6, 1990).
\32\ 40 CFR 355.40(b)(4)(ii).
\33\ Ibid.
\34\ 49 U.S.C. 5125(a)(2).
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The Preparation, Execution, and Use of Shipping Documents Related
to Hazardous Material and Requirements Related to the Number,
Contents, and Placement of Those Documents is Reserved to the
Federal Government
Code Sec. 27-356(b)(4)d.1. and Sec. 27-356(d)(4)a.1., by
reference to (b)(4)d.1., require that owner/operators of ``hazardous
material facilities,'' including facilities offering hazardous waste
for transport, and ``discarded hazardous material haulers'' to
retain copies of ``hazardous waste manifests'' of shipments to,
from, or through the County (if the through movement is via a
``transfer station'')<SUP>35</SUP> for five years at hazardous
materials facilities these entities may operate in the County. EPA
requires such generators and transporters to retain copies of the
Uniform Manifest for a maximum of three years.<SUP>36</SUP>
Additionally, no federal requirement limits the location where the
transporter can retain those records. The Uniform Manifest is
recognized by DOT as a shipping paper.<SUP>37</SUP> Non-federal
requirements pertaining to shipping papers are subject to the HMTA's
``substantively the same as'' test of preemption.
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\35\ Code 27-352, definition of ``transfer station'' includes
``any site ... whose primary purpose is to store ... discarded
hazardous materials ... prior to or during transport ... .''
\36\ 40 CFR 263.22(a).
\37\ 49 CFR 172.205(h).
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The Design, Manufacturing, Fabrication and Maintenance of a
Packaging or Container Which is Represented, Marked, Certified, or
Sold as Qualified for Use in the Transportation of Hazardous
Materials is Reserved to the Federal Government
As noted above, the HMTA preempts non-federal requirements
concerning the design, manufacture, fabrication, and maintenance of
a packaging offered as qualified for use in the transport of
hazardous materials. Uniformity in the construction and maintenance
of packagings, especially reusable packagings, is critical. The
Ordinance, however, requires all ``waste hauling vehicles [to] be
product-tight or be designed to effectively contain any release of
hazardous materials during transport.'' <SUP>38</SUP> (Emphasis
added.) This definition may seem consistent with the HMRs general
packaging standards.<SUP>39</SUP> However, terms like ``product-
tight'' and ``any release'' <SUP>40</SUP> call into question whether
DOT-authorized cargo tanks would meet this standard because they are
equipped with pressure relief valves. Additionally, the Ordinance
keys its requirements to ``vehicles,'' suggesting that vehicles not
authorized as packagings, such as trailers, must meet ``packaging''
standards. Nowhere, does the Ordinance grant equivalency to the
packaging standards of the HMRs. Code Sec. 27-356(d)(4)a.2. should
be preempted pursuant to 49 U.S.C. 5125(b)(1)(E) because it is not
``substantively the same as'' the federal
[[Page 42104]]
packaging standards found at 49 CFR 173, 178, and 180.
---------------------------------------------------------------------------
\38\ Code Sec. 27-356(d)(4)a.2.
\39\ 49 CFR 173.24.
\40\ Code Sec. 27-352, definition of ``release'' where
``release'' means the ``unauthorized spilling, leaking, . . .
emitting, . . . discharging, . . . of any hazardous materials . . .
to the air, water, soil or other natural resources . . . .''
---------------------------------------------------------------------------
The Ordinance Requirements for Periodic Vehicle Inspections are
Preempted by the HMTA
When initially proposed, code Sec. 27-356(d)(4)a.3., would have
required all vehicles used for the transport of ``discarded
hazardous materials'' to, from or through the County (if the through
movement is via a ``transfer station'') to be inspected prior to the
issuance of a ``license identification tag'' that must be displayed
on the rear of the vehicle prior to transport. The inspection would
be valid for one year. After our industry provided the County with
evidence that DOT has preempted such non-federal periodic
inspections, <SUP>41</SUP> the final version of the code was amended
to provide that the DNRP could waive the inspection if the licensee
submitted ``evidence that the vehicle has satisfactorily completed
an inspection conducted pursuant to applicable federal or state
regulations.'' <SUP>42</SUP>
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\41\ 58 FR 48933 (September 20, 1993), affirmed on
reconsideration 60 FR 8800 (February 15, 1995).
\42\ Code Sec. 27-356(d)(4)a.3..
---------------------------------------------------------------------------
DOT has preempted, under the ``obstacle'' test, non-federal
periodic vehicle inspection requirements in the past because such
inspections can not be accomplished without ``unnecessary delay''
within the meaning of 49 CFR 177.853(a) and consequently the
requirement failed the obstacle test of the HMTA. The County cannot
be allowed to protect its inspection requirement against such
preemption by making the inspection waivable at the discretion of
the DNRP.
In practice, none of the documents distributed to licensees
suggests that the DNRP's inspection authority is discretionary, nor
has the County on its own initiative communicated to licensees the
potential to waive inspection requirements and the process by which
such a waiver could be obtained.<SUP>43</SUP> Even if the County
announced a procedure to request a waiver based on the standard
provided at Code Sec. 27-356(d)(4)a.3.,--that the vehicle had
satisfactorily completed an inspection conducted pursuant to
applicable federal or state regulations--the requirement is still
defective because the Ordinance does not guarantee that the waiver
will be granted. Indeed, such evidence has been presented and the
DNRP has, nevertheless, required its own separate inspection, as the
attached affidavits attest.
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\43\ See attachment (E), citing ``No Vehicle (sic) shall be
utilized for hauling until it has been inspected by DNRP . . . .''
---------------------------------------------------------------------------
The delay of hazardous materials transportation caused by the
inspection requirement is indisputable. To accomplish the County's
inspection requirement, motor carriers must schedule, in advance,
appointments to bring vehicles to the one inspection location in the
County. Vehicles must be delivered for inspection empty. Vehicle and
driver are detained for the inspection. Following the inspection,
the vehicles are marked with an official permanently attached
sticker as proof that the vehicle is qualified by the County to
transport discarded hazardous materials. The vehicle and driver are
then released.
If the County's vehicle inspection requirements are allowed to
stand, every non-federal jurisdiction could impose such
requirements. ``Discarded hazardous materials'' transportation via
motor carrier would, as a result, virtually cease inasmuch as the
vehicles would be routed, without cargo, from place to place to
obtain inspections. We believe that the County's periodic inspection
requirements, as distinguished from random, roadside inspections,
are preempted pursuant to 49 U.S.C. 5125(a)(2).
Non-Federal Marking Requirements on Cargo Tanks and Truck Trailers
Carrying Hazardous Materials Are Preempted
Code Sec. 27-356(d)(4)a.4. requires the marking of vehicles used
to transport discarded hazardous materials. The County Discarded
Hazardous Material Transport identification tag is to be placed on
the rear of the vehicle. (DNRP License Identification Tag example
attached.) The tag indicates the expiration date of the period for
which the vehicle is qualified to transport discarded hazardous
materials in the County. A new tag can be applied for after the
vehicle has successfully passed the County's vehicle inspection
requirements.
The HMTA provides that non-federal marking of a package or
container which is marked or otherwise certified pursuant to the
HMRs as qualified for use in the transportation of hazardous
materials is preempted unless the non-federal requirements are
substantively the same as federal requirements. We believe this
preemption standard--49 U.S.C. 5125(b)(1)(E) --is appropriate for
review of County's vehicle identification tag requirements. In fact,
similar vehicle marking requirements imposed by the State of
California were preempted under this standard.<SUP>44</SUP>
---------------------------------------------------------------------------
\44\ 58 FR 48933 (September 20, 1993), affirmed on
reconsideration 60 FR 8800 (February 15, 1995).
---------------------------------------------------------------------------
The Ordinance Requirements for Training are Preempted by the HMTA
Code Sec. 27-356(d)(4)a.6. requires the licensee to provide
``all drivers and other appropriate personnel . . . classroom
instruction and/or on the job training that ensures compliance with
the provisions of this [Code].'' At minimum, ``annual training in
the implementation of the licensee's spill contingency plan and
procedures is required. Additionally, records of the name of each
employee and dates of training must be kept on file for three years
following the employee's last day at work or until the carrier goes
out of business.
DOT prescribes requirements for the training of ``hazmat
employees.'' <SUP>45</SUP> A ``hazmat employee'' is defined as a
person ``who is employed by a hazmat employer and who in the course
of employment directly affect hazardous materials transportation
safety.'' DOT's standard requires hazmat employees to be trained
every three years, unless job responsibilities change more
frequently, and requires that training records be kept only for the
preceding three-year training period and only 90 days following the
employee's last day at work. States are allowed to impose more
stringent training requirements on such employees only if those
requirements do not otherwise conflict with DOT's training
requirements and apply only to drivers domiciled in that
state.<SUP>46</SUP> There is no authority for localities to impose
training standards on such employees.
---------------------------------------------------------------------------
\45\ 49 CFR 172, Subpart H.
\46\ 49 CFR 172.701.
---------------------------------------------------------------------------
The County's training requirements, as they affect hazmat
employees, should be preempted based on the obstacle test at 49
U.S.C. 5125(a)(2).
The Fees Imposed by the Ordinance are not ``Fair'' and Subject to
Preemption Under the Obstacle Test
Code Sec. 27-357(a) authorizes the DNRP ``to charge fees for
licenses [based on] fees . . . adopted by the Board of County
Commissioners and set forth in the Administrative Code.'' Code
Sec. 27-356(d)(4)a.7. provides that the discarded hazardous
materials license will be payable annually. Currently, the license
fee is $175 per vehicle.
The County's per-vehicle fee is flat and unapportioned. The U.S.
Supreme Court has declared fees which are flat and unapportioned to
be unconstitutional under the Commerce Clause because, among other
things, such fees fail the ``internal consistency''
test.<SUP>47</SUP> The Court reasoned that a state fee levied on an
interstate operation violates the Commerce Clause because, if
replicated by other jurisdictions, such fees lead to interstate
carriers being subject to multiple times the rate of taxation paid
by purely local carriers even though each carrier's vehicles operate
an identical number of miles.<SUP>48</SUP> In addition, because they
are unapportioned, flat fees cannot be said to be ``fairly related''
to a feepayer's level of presence or activities in the fee-assessing
jurisdiction.<SUP>49</SUP> In a number of subsequent cases, courts
have relied on these arguments to strike down, enjoin, or escrow
flat hazardous materials taxes and fees.<SUP>50</SUP> The County's
per vehicle fee rate is comparable to that assessed by many states.
The substantial financial burden of meeting multiple state fee
requirements is magnified many times if local entities are permitted
to impose fees on carriers in every jurisdiction in which they
operate.
---------------------------------------------------------------------------
\47\ American Trucking Assn's v. Scheiner, 483 U.S. 266 (1987).
\48\ Ibid., 284-86.
\49\ Ibid., 290-291 (citing Commonwealth Edison Co. v. Montana,
453 U.S. 609, 629 (1981)
\50\ American Trucking Assn's Inc. v. State of Wisconsin, No.
95-1714, 1996 WL 593806 (Wisc. App. Ct., October 1996); American
Trucking Assn's Inc. v. Secretary of Administration, 613 N.E.2d 95
(Mass. 1993); American Trucking Assn's Inc. v. Secretary of State,
595 A.2d 1014 (Me. 1991).
---------------------------------------------------------------------------
We submit that flat fees also run afoul of the HMTA because some
motor carriers, otherwise in compliance with the HMRs, will
inevitably be unable to shoulder multiple flat-per vehicle fees, and
thus be excluded from some sub-set of fee-imposing jurisdictions. In
fact, motor carriers, as the
[[Page 42105]]
attached affidavits attest, have already restricted their hazardous
materials operations in the County because of the unfairness of the
fees. If the County's flat fee scheme is allowed to stand, similar
fees must be allowed in the Nation's other 30,000 non-federal
jurisdictions. The cumulative effect of such outcome would be not
only a generally 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. The increased transfers would pose a serious
risk to safety, since ``the more frequently hazardous material is
handled during transportation, the greater the risk of mishap.''
<SUP>51</SUP>
---------------------------------------------------------------------------
\51\ Missouri Pac. R.R. Co. v. Railroad Comm'n of Texas, 671 F.
Supp. 466, 480-81 (W.D. Tex. 1987).
---------------------------------------------------------------------------
In recognition of these outcomes, Congress amended the HMTA, in
1990, to provide that a ``political subdivision . . . 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.'' <SUP>52</SUP> (Emphasis added.) Augmenting this
authority, Congress further provided, in the 1994 amendments to the
HMTA, that DOT collect information about the basis on which the fee
is levied.<SUP>53</SUP> The then-Chairman of the Senate Subcommittee
to authorize the amendment explained that DOT was to use this
authority to determine if ``hazardous materials fees are excessive .
. . and therefore subject to preemption.'' <SUP>54</SUP> When
determining what constitutes ``fair'', the Chairman clarified that
``the usual constitutional commerce clause protections remain
applicable and prohibit fees that discriminate or unduly burden
interstate commerce.'' <SUP>55</SUP> In closely analogous
circumstances, the Supreme Court considered the meaning of 49 U.S.C.
1513(b), which authorizes States to impose ``reasonable'' charges on
the users of airports. The Court read the statute to apply a
``reasonableness standard taken directly from . . . dormant Commerce
Clause jurisprudence.'' <SUP>56</SUP> In the absence of any evidence
the Congress meant to sanction non-federal fees that are
discriminatory or malapportioned, a ``fair'' fee within the meaning
of 49 U.S.C. 5125(g)(1) surely is one that, at a minimum, complies
with the requirements of the Commerce Clause.
---------------------------------------------------------------------------
\52\ 49 U.S.C. 5125(g)(1).
\53\ 49 U.S.C. 5125(g)(2).
\54\ Cong. Record, August 11, 1994, page 11324.
\55\ Ibid.
\56\ Northwest Airlines v. County of Kent, 510 U.S. 355, 374,
127 L.Ed. 2d 183, 114 S.Ct. 855 (1994).
---------------------------------------------------------------------------
Additionally, it must be remembered that the Ordinance imposes
its challenged flat fees only on motor carriers of ``discarded
hazardous materials'' engaged in transportation operations to or
from the County. However, AWHMT has reviewed the hazardous materials
incident reports filed with DOT pursuant to 49 CFR 171.16 and
discovered, for the five-year representative period 1992-1996, that
no hazardous waste releases occurred.<SUP>57</SUP> On the other
hand, 160 non-waste hazardous materials incidents were reported.
Twenty-one percent of these incidents resulted from shipments
traveling through the County. Twelve of the incidents were in the
air mode, two were in the rail mode. The County has unfairly
burdened select motor carriers of hazardous waste with fees and
requirements that are unsupported by the risk presented to the
citizens and/or environment of the County.
---------------------------------------------------------------------------
\57\ Hazardous Materials Information System, U.S. Department of
Transportation--1992-1996, January 28, 1998.
---------------------------------------------------------------------------
For the above listed reasons, we assert that flat fees are
inherently ``unfair'' and that the County's fee scheme should fall
to the obstacle test pursuant to 49 U.S.C. 5125(a)(2).
Regrettably, we have been unable to obtain information about
what use the County makes of the revenue from the discarded
hazardous material transporter fee. We request the County to provide
an accounting of its fee usage pursuant to this proceeding and,
based on the County's response, reserve the right to challenge the
County's discarded hazardous materials transporter fee under the
``used for'' test as well.
Prenotification Requirements are Preempted by the HMTA
Code Sec. 27-356(d)(4)b.1. provides that ``vehicles may only be
utilized for the type of wastes for which the licensee is authorized
to haul. A license modification must be requested and approved by
DNRP prior to utilizing a vehicle for hauling a waste which is not
specified on the license.''
While no such requirement exists in the HMRs, advance notice
requirements of hazardous material transportation have been
preempted.<SUP>58</SUP> These requirements have the potential to
unreasonably delay hazardous materials transportation.<SUP>59</SUP>
``Congress expressly found that [non-federal] `notification'
requirements that `vary from Federal laws and regulations' create
`unreasonable hazards' and pose a `serious threat to public health and
safety.' . . . [Such requirement] obstructs the purpose and objective
of Congress and the Secretary.'' <SUP>60</SUP> For these reasons, we
request RSPA to find preempted the requirement to notify the County
about changes in the type of waste to be carried on a specific vehicle.
---------------------------------------------------------------------------
\58\ IR-6, 48 FR 760 (January 6, 1983); IR-32, 55 FR 36736
(September 6, 1990).
\59\ 49 CFR 177.800(d).
\60\ Colorado Pub. Utilities Comm'n v. Harmon, 951 F.2d 1571
(10th Cir. 1991).
---------------------------------------------------------------------------
Non-Federal Recordkeeping and Reporting Requirements are Subject to
Review Under the Obstacle Test
Code Sec. 27-356(d)(4)c.1. requires carriers of discarded
hazardous materials to submit monthly reports to the DNRP. The
report must ``at a minimum, identify the facility name and address
for each source, type, and quantity of waste, the date the waste was
collected, and the final destination of each waste that was hauled
during the preceding month.'' The report must also include ``a
summary of the total quantities of each type of waste that was
hauled by the licensee.''
With the exception of the monthly totals, this information is
all available from the Uniform Manifest. Federal law requires
Manifests to be retained by the carrier for three years, and, as
notes above, the County requires a five year retention period. The
DNRP has authority, pursuant to the Ordinance, to inspect these
documents upon request.<SUP>61</SUP>
---------------------------------------------------------------------------
\61\ Code Sec. 27-356(b)(4)d.1.
---------------------------------------------------------------------------
In the past, DOT has preempted requirements for information or
documentation in excess of federal requirements because such
requirements are an obstacle to the HMTA. There is no de minimus
exception to the ``obstacle'' test because thousands of
jurisdictions could impose de minimis information
requirements.<SUP>62</SUP>
---------------------------------------------------------------------------
\62\ IR-8(A), 52 FR 13000 (April 20, 1987).
---------------------------------------------------------------------------
Conclusion
The Ordinance imposes requirements on the transportation of
certain hazardous materials which we believe are preempted by
federal law. As the attached affidavits disclose, the County is
indeed enforcing the above suspect requirements despite its offer to
address individual carrier concerns about conflicts with federal
hazmat law as the need arises. When we discovered that the County
was indiscriminately enforcing its requirements, we recontacted the
County in October 1997 giving notice of our concerns and our
intention of file this application if the County was not prepared to
repeal these requirements on its own initiative. Despite our good-
faith effort to deal directly with the County on these matters, we
have not yet received a reply. We can no longer tolerate the
uncertainty created by the determination of the County to enforce
its suspect regulatory requirements. Consequently, we request timely
consideration of the concerns we have raised.
Certification
Pursuant to 49 CFR 107.205(a), we hereby certify that a copy of
this application has been forwarded with an invitation to submit
comments to: John J. Copelan, Jr., County Attorney, Office of the
County Attorney, 115 S. Andrews Avenue, Suite 423, Fort Lauderdale,
FL 33301.
Respectfully submitted,
Michael Carney,
Chairman.
Enclosures
cc: Ed Bonekemper, Asst. Chief Counsel for Hazardous Materials
Safety, RSPA--DCC-10, U.S. Department of Transportation, 400 Seventh
St., SW, Washington, DC 20590
Attachments
(A) County Ordinance 93-47
(B) Discarded Hazardous Materials (DHM) License Application
(C) Affidavits of:
Jessica M. Wise, A.R. Paquette & Company
[[Page 42106]]
Connie Buschur, Metropolitan Environmental/Omni Transport
Company
Diana L. Hughes, Environmental Transportation Services
Karla Simmons, Tri-State Motor Transit Company
(D) Sample notice of County's Enforcement Authority
(E) Sample ``General Conditions'' of a DHM License
(F) Sample DHM License with Instruction to Schedule Vehicle For
Inspection
(G) Sample Vehicle Marking
(H) Map to Vehicle Inspection Site
(I) Letter to Cynthia Hilton, CWTI, from Lisa Bosch, Broward County,
FL, May 26, 1994
[FR Doc. 98-21066 Filed 8-5-98; 8:45 am]
BILLING CODE 4910-60-P