[Federal Register Volume 63, Number 68 (Thursday, April 9, 1998)]
[Notices]
[Pages 17479-17483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-9212]



[[Page 17479]]

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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration
[Docket No. RSPA-98-3665 (PDA-21 (R))]


Application by Association of Waste Hazardous Materials 
Transporters for a Preemption Determination as to Tennessee Hazardous 
Waste Transporter Fee and Reporting Requirements

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 of 
the State of Tennessee, applicable to transporters of hazardous waste, 
for the payment of a remedial action fee and the filing of a written 
report of any hazardous waste discharge within the State.

DATES: Comments received on or before May 26, 1998, and rebuttal 
comments received on or before July 8, 1998, will be considered before 
an administrative ruling is issued jointly by RSPA's Associate 
Administrator for Hazardous Materials Safety and FHWA's Administrator. 
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.''
    Comments should be submitted to the Dockets Office at the above 
address. Three copies of each written comment should be submitted. 
Comments may also be submitted by E-mail to 
``[email protected].'' Each comment should refer to the Docket 
Number set forth above. A copy of each comment must also be sent to (1) 
Mr. Michael Carney, Chairman, Association of Waste Hazardous Materials 
Transporters, 2200 Mill Road, Alexandria, VA 22314, and (2) Mr. Milton 
Hamilton, Jr., Commissioner, Tennessee Department of Environment & 
Conservation, 401 Church Street, 21st Floor, L&C Tower, Nashville, TN 
37243. 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 Hamilton at the address specified in the Federal 
Register.'')
    A list and subject matter index of hazardous materials preemption 
cases, including all inconsistency rulings and preemption determination 
issued, 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 the 
individual named in ``For Further Information Contact'' below.

FOR FURTHER INFORMATION CONTACT:
Frazer C. Hilder, 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 preempts Tennessee statutory and regulatory 
requirements that transporters of hazardous waste pay a remedial action 
fee and file written reports of any discharge of hazardous waste within 
the State.
    According to AWHMT, each person who is issued a hazardous waste 
transporter permit under the Tennessee Hazardous Waste Management Act 
must pay both a registration fee and a Superfund Remedial Action Fee. 
The Superfund Remedial Action Fee is currently set at $650 per year, 
under Tennessee Code 68-212-203(a)(6) and Rule 1200-1-13-.03(1)(e) of 
the Tennessee Department of Environment & Conservation (DEC). It 
appears that a transporter must hold a permit from the Tennessee DEC in 
order to transport, within the State, hazardous waste that originates 
or terminates in Tennessee. DEC Rule 1200-1-11-.04(2)(a).
    AWHMT also states that a transporter of hazardous waste must submit 
a written report to DEC of ``each hazardous waste discharge during 
transportation that occurs in this state.'' DEC Rule 1200-1-
11-.04(4)(a)(4). The Note to that section states that a copy of DOT 
form 5800.1, as required by 49 CFR 171.16, ``shall suffice for this 
report provided that it is properly completed and supplemented as 
necessary to include all information required by this paragraph.''
    AWHMT asserts that Tennessee's Superfund Remedial Action Fee is 
preempted because the proceeds are not used exclusively for purposes 
related to transporting hazardous material, including enforcement and 
planning, developing, and maintaining a capability for emergency 
response. AWHMT also contends that this is a ``flat fee'' that is 
preempted because it has no relation to the transporter's operations 
within the State. AWHMT states that Tennessee's requirement to submit 
written reports of any hazardous waste discharge is preempted because 
it is not substantively the same as DOT's requirements in 49 CFR 
171.16.
    The text of AWHMT's application and a list of the 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 the individual 
named in ``For Further Information Contact'' above.

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 
section 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 of 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 prior 
to 1990, under the original preemption provision in the Hazardous 
Materials Transportation Act (HMTA). Public Law 93-633 112(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 material 
transportation law or a regulation prescribed under that

[[Page 17480]]

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.

To be ``substantively the same,'' the non-Federal requirement must 
``conform[] in every significant respect to the Federal requirement. 
Editorial and other similar de minimis changes are permitted.'' 49 CFR 
107.202(d).
    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 material, including enforcement and planning, developing, 
and maintaining a capability for emergency response.

    These preemption provisions in 49 U.S.C. 5125 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). 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.

Public Law 101-615 section 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 original 
preemption provision. 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 RSPA the 
authority to make determinations of preemption, except for those 
concerning highway routing which have been delegated to FHWA. 40 CFR 
1.53(b). 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 must be published in the Federal Register. 
Following the receipt and consideration of written comments, RSPA will 
publish its determination in the Federal Register. See 49 CFR 
107.209(d). A short period of time is allowed for filing of 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).
    Preemption determinations do not address issues of preemption 
arising under the Commerce Clause of the Constitution or under statutes 
other than the Federal hazardous material 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. 
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 Comments

    All comments should be limited to the issue whether 49 U.S.C. 5125 
preempts the Tennessee requirements challenged by AWHMT. Comments 
should:
    (A) Set forth in detail the manner in which the Tennessee Superfund 
Remedial Action Fee and discharge reporting requirements are applied 
and enforced, including but not limited to:
    (1) The total amount of Superfund Remedial Action Fees collected by 
Tennessee for fiscal year 1996-97 and all purposes for which those fees 
were used (including an identification of the specific accounts into 
which those fees were deposited); and
    (2) Whether the information required to be submitted on a written 
report of a hazardous waste discharge exceeds the information required 
to be reported to RSPA on DOT form 5800.1; and
    (B) Specifically address the preemption criteria set forth in Part 
II, above.
    Persons intending to comment should review RSPA's standards and 
procedures governing consideration of applications for preemption 
determinations, set forth at 49 CFR 107.201-107.211.

    Issued in Washington, DC, on April 2, 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 Certain 
Fees and Incident Reporting Requirements Imposed By the State of 
Tennessee on Persons Involved in the Transportation of Hazardous 
Wastes to or From Locations Within The State are Preempted by the 
Hazardous Materials Transportation Act.
March 23, 1998.
    Application of the Association of Waste Hazardous Materials 
Transporters to initiate a proceeding to determine whether certain 
fees and incident reporting requirements imposed by the State of 
Tennessee on persons involved in the transportation of

[[Page 17481]]

hazardous wastes to or from locations within the State are preempted 
by the Hazardous Materials Transportation Act.

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 within 
the State of Tennessee (State). Despite full compliance with the 
hazardous materials regulations (HMRs), members of the AWHMT are 
precluded from transporting manifested shipments of hazardous waste 
within the State unless, among other things, certain fees are paid 
to the Department of Environment and Conservation (DEC). In 
addition, transporters are in violation of DEC requirements and in 
jeopardy of losing their permits to transport hazardous waste until 
they file written reports following any hazardous waste incident. 
The AWHMT asserts that the State requirements are in contravention 
to the Hazardous Materials Transportation Act (HMTA).

Background

    The Association of Waste Hazardous Materials Transporters 
(AWHMT) was invited to provide comment on several bills before the 
Tennessee legislature earlier this year. These bills dealt with 
reforming permit requirements currently imposed on transporters of 
hazardous waste in the State. Part of our review disclosed that the 
DEC annually imposes a flat $650 remedial action fee on transporters 
of hazardous waste. We presented arguments that suggested the DEC's 
fee violates federal law. The DEC has rejected our argument.
    Further review of the DEC requirements suggests to us that a 
requirement to file written incident reports with the Department 
also violates federal law.
    Despite the questionable legality of these requirements, the DEC 
imposes such stringent penalties for non-compliance that 
transporters comply. First, the Code declares it ``unlawful to * * * 
refuse or fail to pay to the department fees assessed pursuant to 
the provisions of (the Code or to) fail to provide information in 
violation of the rules, regulations, or orders of the (DEC).'' \1\ 
The Code then makes clear that transporters are precluded from 
transporting hazardous waste to or from any location in the state 
without first obtaining a permit from the DEC.\2\ Failure of a 
permit applicant or permittee to pay the required annual remedial 
action fee is grounds for denial or revocation of a permit.\3\ 
Finally, any person who violates or fails to comply with any 
provision, term or condition of any permit issued, or any rule, 
regulation or standard adopted pursuant to the Code is subject to a 
civil penalty of up to $50,000 per day for each day of violation. 
Each day upon which such violation occurs constitutes a separate 
punishable offense.\4\ As proof that the DEC applies and enforces 
its fees, a current permit application package is attached.
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    \1\ Tenn. Code 68-212-105(4) & (5).
    \2\ Tenn. Code 68-212-108(a)(1).
    \3\ Tenn. Code 68-212-110(d).
    \4\ Tenn. Code 68-212-114(b)(1).
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State Requirement for Which A Determination is Sought

    This application seeks preemption of the following State 
requirements:
     Tennessee Code (Code) section 68-212-203(a)(6) 
concerning remedial action fees
     Tennessee DEC Rule (Rule) section 1200-1-13-.03(1)(e) 
concerning remedial action fees
     Rule section 1200-1-11-.04(4)(a)4 concerning written 
incident reports

RCRA does not shield State Hazardous Waste Requirements from 
Scrutiny Under The HMTA

    The challenged requirements pertain to the transportation of 
hazardous waste. Tennessee is authorized by the U.S. Environmental 
Protection Agency (EPA) to administer the federal hazardous waste 
program. Many states have pointed to such authorization as a defense 
against the preemptive authority of the Hazardous Materials 
Transportation Act (HMTA). This defense, however, is without merit.
    All hazardous wastes are designated ``hazardous substances'' 
under the Comprehensive Environmental Response, Compensation and 
Liability Act (CERCLA).\5\ As such, hazardous wastes are explicitly 
required to be ``listed and regulated as * * * hazardous materials 
under the Hazardous Materials Transportation Act.'' \6\ The U.S. 
Department of Transportation (DOT) defines the term ``hazardous 
material'' to include ``hazardous waste.'' \7\ The hazardous 
materials regulations (HMR) issued pursuant to the HMTA apply to the 
transportation of hazardous wastes by intrastate, interstate, and 
foreign carriers.\8\
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    \5\ 42 U.S.C. 9601(14)(C).
    \6\ 42 U.S.C. 9656(a).
    \7\ 49 CFR 171.8, definition of ``hazardous materials.''
    \8\ 49 CFR 171.1(a).
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    In enacting the Resource Conservation and Recovery Act (RCRA) in 
1976, Congress provided that EPA's regulations on transporters of 
hazardous waste must be consistent with the requirements of the HMTA 
and the HMR.\9\ The deferral to the HMTA and the HMR for the 
regulation of hazardous waste in transportation was intended to 
avoid duplicative requirements. EPA's concern about such 
inefficiency and confusion lead the Agency to state that the HMR are 
``capable of being modified under the HMTA to address the 
transportation hazards of waste materials and that RCRA affirms the 
need for such a modification.'' \10\ When EPA delegates its 
authority to issue regulations to a state, as it has in Tennessee, 
the state's hazardous waste program must be equivalent to the 
federal program and consistent with other state authorized 
programs.\11\
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    \9\ 42 U.S.C. 6923(b).
    \10\ 43 FR 22626 (May 25, 1978).
    \11\ 42 U.S.C. 6926.
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    EPA has consistently maintained that its approval of a state's 
hazardous waste program does not preclude preemption under the 
HMTA.\12\ Provisions of RCRA which allow states to impose ``more 
stringent'' requirements than those established by EPA,\13\ must be 
read consistently with the HMTA.\14\ Thus, while RCRA does not 
contain a procedure for prohibiting states from imposing 
requirements on the transportation of hazardous waste that are more 
stringent or broader in scope that those imposed by EPA, states may 
not rely on RCRA to shield such requirements from review under the 
HMTA.
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    \12\ 57 FR 32726, 32728 (July 23, 1994), and letter to Cynthia 
Hilton, Chemical Waste Transportation Institute (CWTI), from 
Devereaux Barnes, EPA, October 29, 1992.
    \13\ 49 U.S.C. 6929.
    \14\ Morton versus Mancari, 417 U.S. 535, 551 (1974).
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The HMTA Provides for the Preemption of Non-Federal Requirements 
When Those Non-Federal Requirements Fail Certain Federal Preemption 
Tests

    The HMTA was enacted in 1975 to give the DOT greater authority 
``to protect the Nation adequately against the risks of life and 
property which are inherent in the transportation of hazardous 
materials in commerce.'' \15\ 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.'' \16\ 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.'' \17\ This preemption provision was implemented 
through an administrative process where DOT would issue 
``inconsistency rulings'' as to, [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.\18\
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    \15\ Pub. L. 93-633 sec. 102.
    \16\ S. Rep. 1192, 93rd Cong., 2d Sess., 1974, page 2.
    \17\ S. Rep. 1192, 93rd Cong., 2d Sess, 1974, page 37.
    \18\ 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 conflict 
between Federal and State statutes enunciated by the Supreme Court 
in Hines versus Davidowitz, 312 U.S. 52 (1941).'' \19\
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    \19\ 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.\20\ The 1990 
amendments also expanded on DOT's preemption authorities, setting 
four other standards under which non-federal requirements could be 
subject to preemption

[[Page 17482]]

review. Two of these standards are of significance to this petition:
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    \20\ 49 U.S.C. 5125(a).
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     First, Congress expressly preempted non-federal 
requirements in five covered subject areas if they are not 
``substantively the same'' as the federal requirements. Among these 
covered subject areas is the written notification, recording, and 
reporting of the unintentional release in transportation of 
hazardous materials.\21\ ``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.'' \22\
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    \21\ 49 U.S.C. 5125(b)(1)(D).
    \22\ 49 CFR 107.202(d).
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     Second, 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.'' 
\23\
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    \23\ 49 U.S.C. 5125(g).
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    DOT's preemption authority is limited only to the extent that 
non-federal requirements are ``otherwise authorized'' by federal 
law. As noted above, state requirements affecting transporters of 
hazardous waste are not ``authorized by another law of the United 
States,'' within the meaning of 49 U.S.C. 5125, simply because they 
are contained in an EPA-authorized state hazardous waste 
program.\24\
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    \24\ Colo. Pub. Util. Comm'n versus Harmon, 951 F.2d, 1571, 1581 
n. 10, (10th Cir. 1991).
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    Our review of federal law and the Code leads us to believe that 
the following specific requirements, absent further modification 
and/or clarification, are subject to preemption pursuant to 49 
U.S.C. 5125(a)(2) and (b)(1)(D).

The Remedial Action Fee Imposed by the Code and Rule is not 
``Fair'' Or ``Used for a Purpose Related to Transporting Hazardous 
Material'' and is Subject to Preemption Under the Obstacle Test

    Code Sec. 68-212-203(a)(6) and Rule Section 1200-1-13-.03(1)(e) 
authorize and impose an annual assessment of $650 on transporters of 
manifested hazardous waste shipments moving to or from locations in 
the State. The revenue from this fee collection is deposited in the 
DEC's ``Hazardous Waste Remedial Action Fund'' (Fund) \25\ Code 
Sec. 68-212-205 outlines the uses to which the revenues in the Fund 
can be applied.
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    \25\ Code section 68-212-204.
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    As noted above, the HMTA provides that ``a State * * * may 
impose a fee related to transporting hazardous materials only if the 
fee is fair and used for a purpose related to transporting hazardous 
materials, including enforcement and planning, developing, and 
maintaining a capability for emergency response.'' \26\ DOT 
considered ``transportation-related fees'' to include fees imposed 
``as a condition for authority or permission to transport any 
hazardous materials into, through, or within'' a state.\27\ DOT has 
affirmed that fees imposed by a State that did not meet the 
standards set forth in the law would ``create an obstacle to the 
accomplishment and execution of the [HMTA]'', and consequently, be 
subject to administrative preemption under the ``obstacle test.'' 
\28\
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    \26\ U.S.C. 5125(g)(1).
    \27\ Letter to Robert Shinn, New Jersey Dept. of Environmental 
Protection, from Alan I. Roberts, RSPA, May 24, 1995.
    \28\ Letter to Cynthia Hilton, CWTI, from Alan I. Roberts, DOT, 
October 6, 1993.
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     Used For Test
    The DEC is in violation of federal law because the revenue 
collected from hazardous waste transporters in the Fund is used for 
``identifying and investigating inactive hazardous substance sites * 
* * and for investigating and reasonably and safely containing, 
cleaning up, monitoring and maintaining such sites as provided in 
the [Code].'' \29\ The Fund may also be used, in conjunction with 
the above purpose, for consultants and personnel, for equipment, or 
``other necessary expenses.'' \30\ The Fund may be used to match 
federal funds available under CERCLA.\31\ Other authorized uses of 
the Fund are to provide technical assistance to generators; to 
promote the DEC's waste reduction and pollution prevention programs; 
to operate an information clearinghouse for generators; to 
coordinate an award program for innovative approaches to reducing 
hazardous waste generation; to conduct training sessions and publish 
reports targeted to segments of industry concerning hazardous waste 
reduction; to prepare an annual report to the State Legislature; to 
accept gifts and grants; to provide grants to generators of 
hazardous waste; to provide research grants to develop new 
technology for the reduction or better treatment of hazardous waste; 
and to review waste reduction plans. Despite the exhaustive uses of 
the Fund, none address enforcement and emergency response for 
transportation of hazardous materials within the meaning of 49 
U.S.C. 5125(g)(1). DOT has already preempted non-federal fees based 
on the non-federal entity's unauthorized use of a hazmat 
transportation-related fee. DOT should not tolerate the continuation 
of the Remedial Action fee for the same reason.
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    \29\ Code section 68-212-205(a).
    \30\ Code section 68-212-205(b).
    \31\ Code section 68-212-205(c).
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     Fairness Test
    The DEC's remedial action fee is set at a flat rate and 
unapportioned to each motor carrier's presence in the State. 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.\32\ 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.\33\ 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.\34\ In a number of subsequent cases, courts have 
relied on these arguments to strike down, enjoin, or escrow flat 
hazardous materials taxes and fees.\35\
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    \32\ American Trucking Assn's versus Scheiner, 483 U.S. 266 
(1987).
    \33\ Ibid., 284-86.
    \34\ Ibid., 290-291 (citing Commonwealth Edison Co. versus 
Montana, 453 U.S. 609, 629 (1981).
    \35\ American Trucking Assn's, Inc. versus State of New Jersey, 
No. 11562-92 (N.J.T.C., March 11, 1998) (oral opinion declaring 
flat, annual $250 per truck hazardous waste transporter fee 
unconstitutional under the Commerce Clause), American Trucking 
Assn's Inc. versus State of Wisconsin, No. 95-1714, 1996 WL 593806 
(Wisc. App. Ct., October 1996) (holding flat, annual per-company 
hazardous materials fees to be violative of the Commerce Clause). 
American Trucking Assn's Inc. versus Secretary of Administration, 
613 N.E.2d 95 (Mass. 1993) (finding unconstitutional annual, flat 
per-vehicle hazardous waste fee). American Trucking Assn's Inc. 
versus Secretary of State, 595 A.2d 1014 (Me. 1991) (finding 
unconstitutional flat per-vehicle hazardous materials fees).
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    We submit that the DEC's flat remedial action fee also runs 
afoul of the HMTA because it is inherently ``unfair.'' Some motor 
carriers, otherwise in compliance with the HMRs, will inevitably be 
unable to shoulder multiple flat fees, and thus be excluded from 
some sub-set of fee-imposing jurisdictions. If the State'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.'' 36
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    \36\ Missouri Pac. R.R. Co. versus Railroad Comm'n of Texas, 671 
F. Supp. 466, 480-81 (W.D. Tex. 1987).
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    In recognition of these outcomes, Congress amended the HMTA, in 
1990, to provide, in addition to the ``used for'' test, the 
hazardous materials transportation-related fee ``fairness'' test. 
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.37 The then-Chairman of the 
Senate Subcommittee to authorize the amendment explained that DOT 
was to use this authority to determine if the hazardous materials 
fees are ``subject to preemption.'' 38 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.'' 39 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.'' 40 In the absence of any

[[Page 17483]]

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.
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    \37\ 49 U.S.C. 5125(g)(2).
    \38\ Cong. Record, August 11, 1994, page 11324.
    \39\ Ibid.
    \40\ Northwest Airlines v. State of Kent, 510 U.S. 355, 374, 127 
L.Ed. 2d 183, 114 S.Ct. 855 (1994).
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    Additionally, it must be remembered that the Code and Rule 
impose the challenged flat fee only on transporters engaged in the 
transportation of manifested shipments of hazardous waste moving to 
or from locations in Tennessee. 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 1819 hazardous materials incidents were reported in 
Tennessee of which 102 involved the transportation of hazardous 
waste.41 Forty-six percent of the hazardous waste 
incidents involved shipments by transporters technically unpermitted 
by the State and not subject to the remedial action fee because the 
shipments were not destined to or from locations in the State. Of 
the 1819 incidents, 42 met DOT's definition of ``serious;'' only one 
of the 42 involved the transportation of hazardous 
waste.42 The State clearly has unfairly burdened certain 
hazardous waste carriers with fees and requirements that are 
unsupported by the risk presented to the citizens and/or environment 
of the State.
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    \41\ Hazardous Materials Information System, U.S. Department of 
Transportation--1992-1996, January 28, 1998.
    \42\ ``Serious'' incidents are those that result in one or more 
of the following: death; accident/derailment of vehicle; evacuation 
of six or more individuals; injury requiring hospitalization; or 
road closure.
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    For the above listed reasons, we assert that flat fees are 
inherently ``unfair'' and that the State's fee scheme should fall to 
the obstacle test pursuant to 49 U.S.C. 5125(a)(2).

The Written Notification, Recording, and Reporting of the 
Unintentional Release in Transportation of Hazardous Material Is 
Reversed to the Federal Government

    Rule 1200-1-11.04(4)(a)4 requires written notification of each 
hazardous waste discharge during transportation that occurs in the 
State. These reports must be filed with the DEC within 15 days. The 
written notification must provide information about the incident. 
The DEC allows the filing of form F5800.1, the DOT incident report, 
to suffice if it is ``properly completed and supplemented as 
necessary to include all information required by the (DEC).'' 
43
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    \43\ Rule 1200-1-11.04(4)(a)4. Note.
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    It is clear that the DEC's written notification requirements are 
not substantively the same as corresponding federal 
requirements.44 The HMTA expressly preempts such 
requirements.45 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) * 
* * .'' 46
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    \44\ 49 CFR 171.16.
    \45\ 49 U.S.C. 5125(b)(1)(D).
    \46\ IR-31, 55 FR 25582 (June 21, 1990).
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Conclusion

    The State's hazardous waste remedial action fee requirements 
imposed on the transportation of manifested shipments of hazardous 
waste are preempted by federal law. The State is enforcing the above 
suspect requirements. 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: Milton Hamilton, Jr., Commissioner, Department of 
Environment & Conservation, 401 Church St., 21st Floor, L&C Tower, 
Nashville, TN 37243.
        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) Tenn. Code 68-212 Secs. 101-121
(B) Tenn. Code 68-212 Secs. 203-206
(C) DEC Rule 1200-1-11-.04
(D) DEC Rule 1200-1-11-.08
(E) DEC Rule 1200-1-13
(F) Hazardous Waste Transporter Permit Application

[FR Doc. 98-9212 Filed 4-8-98; 8:45 am]
BILLING CODE 4910-60-M