[Federal Register Volume 63, Number 151 (Thursday, August 6, 1998)]
[Notices]
[Pages 42098-42106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21066]


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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 
``[email protected].'' 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) 1 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.2 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.'' 
3
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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].'' 4 In addition, 
violations of the Ordinance may result in the suspension or 
revocation of a permit.5
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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.'' 
6 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; 7 
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.8

    \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:
     Code Sec. 27-352: Definition of ``Hazardous Material'' 
and related terms.
     Code Sec. 27-355(a)(1) : Release reporting.
     Code Sec. 27-356(b)(4)d.1. & Sec. 27-356(d)(4)a.1.: 
Shipping paper requirements.
     Code Sec. 27-356(d)(4)a.2.: Standards for packagings.
     Code Sec. 27-356(d)(4)a.3.: Periodic vehicle inspection 
requirements.
     Code Sec. 27-356(d)(4)a.4.: Vehicle marking 
requirements.
     Code Sec. 27-356(d)(4)a.6.: Training requirements.
     Code Sec. 27-356(d)(4)a.7.: Fee requirements.
     Code Sec. 27-356(d)(4)b.1.: Prenotification 
requirements.
     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.'' 9 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.'' 10 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.'' 11 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].'' 
12 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.'' 
13

    \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).'' 14
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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.15 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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     The designation, description, and classification of 
hazardous materials.
     The packing, repacking, handling, labeling, marking and 
placarding of hazardous materials.
     The preparation, execution, and use of shipping 
documents pertaining to hazardous materials and requirements 
respecting the number, content, and placement of such documents.
     The written notification, recording, and reporting of 
the unintentional release in transportation of hazardous materials.
 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. 
16
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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.'' 17 
Second, non-federal highway routing requirements that fail to 
satisfy the federal standard under 49 U.S.C. 5112(b) are preempted. 
18 Third, non-federal registration and permitting forms 
and procedures that are not ``the same'' as federal regulations to 
be issued are preempted. 19 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.'' 20 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. 
21
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    \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).
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    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.'' 22 ``Transportation'' is defined as ``the 
movement of property and loading, unloading, or storage incidental 
to the movement.'' 23
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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.24 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.25 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 . . .''26 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.''27
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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.28 The HMTA expressly preempts such 
requirements.29 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] . 
. .''30 On the other hand, RSPA has generally not found 
inconsistent requirements for immediate, oral incident reports. 
31 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.'' 
32 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.'' 
33 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.34
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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'')35 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.36 
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.37 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.'' 38 (Emphasis 
added.) This definition may seem consistent with the HMRs general 
packaging standards.39 However, terms like ``product-
tight'' and ``any release'' 40 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.
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    \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 . . . .''
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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, 41 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.'' 42
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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..
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    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.43 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 . . . .''
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    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.44
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    \44\ 58 FR 48933 (September 20, 1993), affirmed on 
reconsideration 60 FR 8800 (February 15, 1995).
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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.'' 45 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.46 There is no authority for localities to impose 
training standards on such employees.
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    \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.47 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.48 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.49 In a number of subsequent cases, courts 
have relied on these arguments to strike down, enjoin, or escrow 
flat hazardous materials taxes and fees.50 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.
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    \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.'' 
51
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    \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.'' 52 (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.53 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.'' 54 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.'' 55 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.'' 56 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.
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    \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.57 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.58 These requirements have the potential to 
unreasonably delay hazardous materials transportation.59 
``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.'' 60 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.
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    \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.61
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    \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.62
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    \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