[Federal Register Volume 64, Number 193 (Wednesday, October 6, 1999)]
[Notices]
[Pages 54474-54481]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26037]



[[Page 54473]]

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Part V





Department of Transportation





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Research and Special Programs Administration



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Tennessee Hazardous Waste Transporter Fee and Reporting Requirements; 
Notice

  Federal Register / Vol. 64, No. 193 / Wednesday, October 6, 1999 / 
Notices  

[[Page 54474]]



DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration
[Docket No. RSPA-98-3665]


Preemption Determination No. 21(R); Tennessee Hazardous Waste 
Transporter Fee and Reporting Requirements

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Notice of administrative determination of preemption by RSPA's 
Associate Administrator for Hazardous Materials Safety.

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    Applicant: Association of Waste Hazardous Materials Transporters 
(AWHMT).
    Local Laws Affected: Tennessee Code 68-212-203(a)(6); Tennessee 
Rules and Regulations 1200-1-11-.04(4)(a)4, 1200-1-13-.03(1)(e).
    Modes Affected: Highway and Rail.

SUMMARY: Federal hazardous material transportation law preempts 
Tennessee's requirement for hazardous waste transporters to pay a $650 
per year remedial action fee because that fee is not fair and it is not 
used for purposes related to transporting hazardous material. Federal 
hazardous material transportation law also preempts Tennessee's 
requirement for a transporter to submit a written report of a discharge 
of hazardous waste during transportation because that requirement is 
not substantively the same as RSPA's requirement in the Hazardous 
Materials Regulations.

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. Background

    In March 1998, AWHMT 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.
    Tennessee requires a transporter to hold a permit in order to pick 
up or deliver hazardous waste within the State. Tennessee Code 68-212-
108(a)(1); Rule 1200-1-11-.04(2) of the Tennessee Department of 
Environment and Conservation (DEC). In addition to the initial 
application and annual renewal fees to obtain this permit, which are 
not challenged by AWHMT, the transporter must also pay a $650 
``remedial action fee'' each year, under Tennessee Code 68-212-
203(a)(6) and DEC Rule 1200-1-13.03(1)(e). (This fee had been set at 
$550 for the 1994-95 fiscal year and $600 for the 1995-96 fiscal year. 
Id.) The remedial action fees paid by transporters are deposited into a 
``special agency account . . . known as the 'hazardous waste remedial 
action fund.' '' Tennessee Code 68-212-204(a). The monies in this fund 
may be used for a number of purposes, including identifying, 
investigating, cleaning up and monitoring ``inactive hazardous 
substance sites''; matching funds provided by the United States to 
clean up hazardous substance sites; providing on-site technical 
assistance to hazardous waste generators; taking additional measures to 
reduce the generation of hazardous waste within the State; and 
preparing an annual report to the Tennessee Legislature. Tennessee Code 
68-212-205.
    Tennessee also requires a transporter to submit to DEC, ``[w]ithin 
fifteen days of occurrence,'' a written report ``on each hazardous 
waste discharge during transportation that occurs in the state.'' DEC 
Rule 1200-1-11-.04(4)(a)4. The Note to this section states that a copy 
of DOT form F 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 the information required'' in subsection (a)3 with 
respect to immediate notification of any discharge of hazardous waste.
    AWHMT contends that Tennessee's 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 maintains that this is a ``flat fee'' that is preempted because it 
has no relation to the transporter's operations within the State. In 
addition, AWHMT argues 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 was published in the Federal 
Register, and interested parties were invited to submit comments. 63 FR 
17479 (April 9, 1998), correction, 63 FR 18964 (April 16, 1998). 
Comments were submitted by DEC, the Association of American Railroads 
(AAR), and the Hazardous Materials Advisory Council (HMAC). Rebuttal 
comments were submitted by AWHMT, DEC, and AAR. In its rebuttal 
comments, DEC asked RSPA to reopen the comment period to allow 
commenters to respond to rebuttal comments. RSPA denied that request 
but called DEC's attention to RSPA's procedural regulations providing 
that ``Late-filed comments are considered so far as practicable.'' 49 
CFR 107.205(c). Accordingly, in the event that a commenter raises a new 
issue in rebuttal comments, or there is a change in the facts or law 
involved in a preemption application, an interested party may always 
bring these matters to RSPA's attention. No late-filed comments were 
received.

II. Federal Preemption

    The Hazardous Materials Transportation Act (HMTA) was enacted in 
1975 to give the Department of Transportation greater authority ``to 
protect the Nation adequately against the risks to life and property 
which are inherent in the transportation of hazardous materials in 
commerce.'' Pub. L. 93-633 Sec. 102, 88 Stat. 2156, presently codified 
as revised in 49 U.S.C. 5101. The HMTA ``replace[d] a patchwork of 
state and federal laws and regulations * * * with a scheme of uniform, 
national regulations.'' Southern Pac. Transp. Co. v. Public Serv. 
Comm'n, 909 F.2d 352, 353 (9th Cir. 1980). On July 5, 1994, the HMTA 
was among the many Federal laws relating to transportation that were 
revised, codified and enacted ``without substantive change'' by Public 
Law 103-272, 108 Stat. 745. The Federal hazardous material 
transportation law is now found in 49 U.S.C. Chapter 51.
    The HMR are currently issued under the direction in 49 U.S.C. 
5103(b)(1) that DOT ``shall prescribe regulations for the safe 
transportation of hazardous material in intrastate, interstate, and 
foreign commerce.'' The term ``hazardous material'' specifically 
includes hazardous wastes. 49 CFR 171.8; see also Sec. 171.1(a)(1).
    A statutory provision for Federal preemption was central to the 
HMTA. In 1974, the Senate Commerce Committee ``endorse[d] the principle 
of preemption in order to preclude a multiplicity of State and local 
regulations and the potential for varying as well as conflicting 
regulations in the area of hazardous materials transportation.'' S. 
Rep. No. 1102, 93rd Cong. 2nd Sess. 37 (1974). More recently, a Federal 
Court of Appeals found that uniformity was the ``linchpin'' in the 
design of the HMTA, including the 1990 amendments that expanded the 
preemption provisions.

[[Page 54475]]

Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1575 (10th Cir. 
1991).
    The 1990 amendments to the HMTA codified the ``dual compliance'' 
and ``obstacle'' criteria that RSPA had applied in issuing 
inconsistency rulings before 1990.1 The dual compliance and 
obstacle criteria are based on U.S. Supreme Court decisions on 
preemption. Hines v. Davidowitz, 312 U.S. 52 (1941); Florida Lime & 
Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); Ray v. Atlantic 
Richfield, Inc., 435 U.S. 151 (1978). As now set forth in 49 U.S.C. 
5125(a), these criteria provide that, in the absence of a waiver of 
preemption by DOT under 49 U.S.C. 5125(e) or unless it is authorized by 
another Federal law, ``a requirement of a State, political subdivision 
of a State, or Indian tribe'' is explicitly preempted if

    \1\ While advisory in nature, RSPA's inconsistency rulings were 
``an alternative to litigation for a determination of the 
relationship of Federal and State or local requirements'' and also a 
possible ``basis for an application * * * [for] a waiver of 
preemption.'' Inconsistency Ruling (IR) No. 2, Rhode Island Rules 
and Regulations Governing the Transportation of Liquefied Natural 
Gas and Liquefied Propane Gas, etc., 44 FR 75566, 76657 (Dec. 20, 
1979).
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    (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.

    In the 1990 amendments to the HMTA, Congress also added additional 
preemption provisions on certain ``covered subject'' areas and with 
regard to fees imposed by a State, political subdivision, or Indian 
tribe on the transportation of hazardous material. The covered subject 
areas include ``the written notification, recording, and reporting of 
the unintentional release in transportation of hazardous material,'' 49 
U.S.C. 5125(b)(1)(D); unless it is authorized by another Federal law or 
a DOT waiver of preemption, a non-Federal requirement on this subject 
matter is preempted when it is not ``substantively the same as a 
provision of this chapter or a regulation prescribed under this 
chapter.'' 49 U.S.C. 5125(b)(1). RSPA has defined ``substantively the 
same'' to mean ``conforms in every significant respect to the Federal 
requirement. Editorial and other similar de minimis changes are 
permitted.'' 49 CFR 107.202(d).
    In addition, 49 U.S.C. 5125(g)(1) provides that a State, political 
subdivision, or Indian tribe may

impose a fee related to transporting hazardous material only if the 
fee is fair and used for a purpose relating to transporting 
hazardous material, including enforcement and planning, developing, 
and maintaining a capability for emergency response.

    Under 49 U.S.C. 5125(d)(1), any directly affected person may apply 
to the Secretary of Transportation for a determination whether a State, 
political subdivision or Indian tribe requirement is preempted. The 
Secretary of Transportation has delegated to RSPA the authority to make 
determinations of preemption, except for those concerning highway 
routing (which have been delegated to FHWA). 49 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 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 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 directly address issues of 
preemption arising under the Commerce Clause of the Constitution, 
except that, as discussed in more detail in Section III.B.2., below, 
RSPA considers that Commerce Clause standards are relevant to a 
determination whether a fee related to the transportation of hazardous 
material is ``fair'' within the meaning of 49 U.S.C. 5125(g)(1). 
Preemption determinations also do not address 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.2 Section 5125 contains express preemption 
provisions, which RSPA has implemented through its regulations.
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    \2\ On August 4, 1999, the President signed ``Federalism'' 
Executive Order No. 13132 which becomes effective on November 2, 
1999. Although this replaces Executive Order No. 12612, it continues 
the policy that a Federal agency should find preemption ``only where 
the [Federal] statute contains an express preemption provision or 
there is some other clear evidence that the Congress intended 
preemption of State law, or where the exercise of State authority 
conflicts with the exercise of Federal authority under the Federal 
Statute.'' Sec. 4(a), 54 FR 43255, 43257 (Aug. 10, 1999).
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III. Discussion

A. Standing

    In its initial comments, DEC questioned whether AWHMT ``has 
standing to pursue this petition.'' DEC asserted that AWHMT had not set 
forth sufficient facts in its application ``to know if the Association 
has any members that have standing.'' DEC stated that its remedial 
action fee ``does not apply to the universe of hazardous materials * * 
* but only to the subset of hazardous waste as defined by the Resource 
Conservation and Recovery Act (RCRA),'' 42 U.S.C. 6901 et seq., and 
that

the fee only applies to persons who `transport hazardous waste to or 
from locations within Tennessee.' TDEC Rule 1200-1-11-.04(2)(b)(1) 
in the Applicant's Attachment C. The fee does not apply to a 
transporter who passes through the State. [Footnote omitted]

    With its rebuttal comments, AWHMT submitted affidavits of two of 
its members, Environmental Transport Group, Inc., of Flanders, New 
Jersey, and Tri-State Motor Transit Co., Inc., of Joplin, Missouri. 
Officials of each of these companies stated that their companies 
handled numerous shipments of hazardous waste every year that 
originate, terminate or are temporarily stored during the normal course 
of transportation in Tennessee. This is sufficient to allow AWHMT to 
petition for an administrative determination of preemption on behalf of 
its members. As stated in PD-2(R), Illinois Environmental Protection 
Agency's Uniform Hazardous Waste Manifest, 58 FR 11176, 11182 (Feb. 23, 
1993),

if [an association's] members do not comply with the IEPA Uniform 
Hazardous Waste Manifest requirements, they are subject to State 
enforcement action and to delays of their shipments. Thus, [the 
association's] members are ``directly affected'' by the Uniform 
Hazardous Waste Manifest system, and [the association] has standing 
to apply for this preemption determination.


[[Page 54476]]


Accord, PD-6(R), Michigan Marking Requirements for Vehicles 
Transporting Hazardous and Liquid Industrial Wastes, 59 FR 6186, 6189 
(Feb. 9, 1994) (an association has standing to apply for a 
determination that Michigan requirements on the transportation of 
hazardous waste are preempted when its ``members include those who 
transport hazardous waste in or through Michigan by motor vehicle'').
    RSPA finds that AWHMT has standing to apply for a determination 
that Federal hazardous materials transportation law preempts Tennessee 
requirements that apply to AWHMT's members that transport hazardous 
waste within Tennessee.

B. Remedial Action Fee

1. The Fee and its Uses
    According to DEC, the remedial action fee mandated by Tennessee 
Code 68-212-203(a)(6) and DEC Rule 1200-1-13-.03(1)(e) is ``part of the 
Tennessee superfund program.'' DEC stated that these fees are paid by 
generators of hazardous waste, transporters of hazardous waste, and 
facilities that treat or dispose of hazardous waste.3 DEC 
indicated that its Division of Superfund collected more than $2.5 
million in remedial action fees in 1996, and almost $2.9 million in 
1997. In both years, more than 90% of the fees were paid by generators 
and treatment and disposal facilities; transporters paid $176,800 
(about 7% of the fees collected) in 1996, and $168,700 (about 6%) in 
1997.
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    \3\ It appears that the amount of fees paid by generators 
depends upon the amount of hazardous waste generated within the 
year. DEC Rule 1200-1-13-.03(1)(b). In addition, generators who ship 
hazardous waste offsite for treatment of disposal also pay an 
additional fee, also based on the amount of hazardous waste shipped. 
DEC Rule 1200-1-13-.03(1)(c). Although this additional ``off-site 
shipping fee'' may be a ``fee related to transporting hazardous 
material,'' 49 U.S.C. 5125(g)(1), no directly affected person has 
asked RSPA to determine whether Federal hazardous material 
transportation law preempts this separate fee imposed on generators.
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    DEC stated that the remedial action fees paid by generators, 
transporters and treatment and disposal facilities are credited to the 
Hazardous Waste Remedial Action Fund,4 which is ``distinct 
from the state general fund and any unencumbered balance does not 
revert to the general fund at the end of any fiscal year.'' DEC also 
advised that, besides these fees, the Hazardous Waste Remediation Fund 
receives criminal fines and civil penalties for violations of the 
Tennessee Hazardous Waste Management Act, and the State appropriates $1 
million to this fund each year. See Tennessee Code 68-212-203(d), (e).
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    \4\ Although DEC stated initially that this fund is ``officially 
named the Hazardous Waste Remediation Fund,'' it later referred to 
the ``Hazardous Waste Remedial Action Fund,'' which is the name 
specified in Tennessee Code 68-212-204.
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    DEC stated that ``the primary use [of monies in the fund] is as a 
mechanism for the Department to investigate, contain and clean up 
`inactive hazardous substance sites' * * * where disposal of hazardous 
substance has occurred.'' According to DEC, ``hazardous substance'' has 
the same meaning as in the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA), 49 U.S.C. 9601(14), so that 
this term includes more than hazardous wastes.
    DEC indicated that disposal can include ``[a]ny spilling, 
discharge, or leaking such as can occur during an accident during 
transportation or during loading and unloading.'' DEC stated that it 
``accomplishes these activities through the use of contractors when the 
liable parties do not do it themselves.'' It indicated that it has 
separate contracts for emergency response, investigation and 
engineering, and for remediation. However, according to DEC, ``[t]here 
has not been a major spill in a transportation-related incident that we 
have had to address with the superfund.'' It mentioned that, in 1996, 
it ``used the fund and the emergency response contractor to address 
incidents on highways,'' at a total cost of $4,300. DEC also referred 
to two train derailments that resulted in the release of significant 
amounts of hazardous substances. It stated that, in these latter two 
cases, the rail transporter paid the direct costs of response and 
clean-up, and DEC incurred oversight costs that totaled slightly more 
than $10,000 for both incidents.
    In its application, AWHMT challenges Tennessee's remedial action 
fee on the grounds that it is not ``fair'' and that it is not being 
used for purposes that are related to the transportation of hazardous 
material.
2. The Fairness Test
    Both AWHMT and DEC have referred to the Commerce Clause as 
providing the standards for a determination whether the Tennessee 
remedial action fee is ``fair'' within the meaning of 49 U.S.C. 
5125(g)(1). AWHMT contends that, because the remedial action fee is set 
at a ``flat rate'' for all transporters who pick up or deliver 
hazardous wastes within Tennessee, it fails to meet the ``internal 
consistency'' test discussed in American Trucking Ass'ns v. Scheiner, 
483 U.S. 266, 97 S.Ct. 2829 (1987). AWHMT cited the Scheiner case, 483 
U.S. at 290-291, as holding that ``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.'' It cited 
four State court decisions in cases also brought by the American 
Trucking Associations, Inc. (ATA) that ``strike down, enjoin, or escrow 
flat hazardous materials taxes and fees'': Wisconsin, 556 N.W.2d 761 
(Wis. Ct. App.), review denied, 560 N.W.2d 274 (1996); Massachusetts, 
613 N.E.2d 95 (1993); Maine, 595 A.2d 1014 (1991); and New Jersey, No. 
11562-92 (N.J. Tax. Ct., March 11, 1998).5
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    \5\ After remand by the New Jersey Supreme Court, 713 A.2d 497 
(1998), the Appellate Division reversed and remanded this case with 
directions to the State to apply to DOT for a determination on the 
fairness of New Jersey's hazardous waste transporter registration 
fee. Docket No. A-6334-97T3F (June 15, 1999). RSPA understands that 
the Appellate Division has denied motions for reconsideration of its 
June 15, 1999 decision and that both ATA and the State of New Jersey 
have appealed this decision to the New Jersey Supreme Court. AWHMT 
is affiliated with ATA.
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    AWHMT also asserted that the DEC remedial action fee is inherently 
``unfair'' because of the possible cumulative effect if other 
jurisdictions charge similar fees:

    Some motor carriers, otherwise in compliance with the HMRs, will 
inevitably be unable to shoulder multiple flat fees, and thus will 
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.'' 
6

    \6\ The quoted language is from Missouri Pac. R.R. v. Railroad 
Comm'n of Texas, 671 F. Supp. 466, 480-81 (W.D. Tex.)
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    HMAC also argued that a

flat fee of $650 per year * * * is clearly unfair to interstate 
carriers. If such fees were to be enacted by other States or 
jurisdictions, it would lead to assessments on interstate carriers 
many times the rates paid by local carriers for the same number of 
miles. A fee of this magnitude applied by 50 States would result in 
a cost to a single carrier of more than $32,000.

    DEC has asserted that its remedial action fee is not unreasonably 
high because in 1997 transporters paid only about 6% of the total fees 
collected. DEC stated that its fee does not differentiate between 
interstate and intrastate

[[Page 54477]]

carriers, because both pay the same $650 amount per year. Although not 
``conced[ing] that the fee is a flat fee,'' DEC does ``acknowledge that 
all of the persons in the small subset of payers who are transporters 
of hazardous waste all pay the same amount.'' It contended that the 
Scheiner case is not dispositive, regardless of whether the remedial 
action fee is considered a ``tax'' or a regulatory ``fee.''
    DEC stated that, because this fee is not used to pay the 
government's ``general debts and liabilities,'' it is not a tax, but 
rather a ``fee'' which is ``charged by the government in connection 
with the exercise of its police function to help defray costs of the 
government's provision of a specific service.'' This fee, DEC stated, 
helps ``defray the State's costs in the establishment and maintenance 
of a fund used to identify, investigate and remediate sites where there 
is a release or threatened release of hazardous substances,'' including 
``'maintaining a capability for emergency response'' when the actual or 
threatened release results from the transport of hazardous materials.'' 
It contended that the decisions in V-1 Oil Co. v. Utah State Dept. of 
Public Safety, 131 F.3d 1415 (10th Cir. 1997), and Interstate Towing v. 
Cincinnati, 6 F.3d 1154 (6th Cir. 1993), hold that uniform fees that 
are used to perform inspections of LPG facilities (in V-1 Oil) or tow 
trucks (in Interstate Towing) do not discriminate against interstate 
commerce. DEC also referred to Evansville-Vanderburgh Airport Auth. v. 
Delta Airlines, Inc., 405 U.S. 707, 717, 92 S.Ct. 1349, 1355 (1972), as 
approving a $1.00 charge for each departing passenger on both 
interstate and intrastate flights as ``a fair, if imperfect, 
approximation of the use of facilities for whose benefit they are 
imposed.''
    DEC argued that ``tax cases such as Scheiner'' do not invalidate 
its remedial action fee. It stated that ``Tennessee's fee provision 
does not explicitly treat out-of-state interests differently,'' and 
that only transporters who pick up or deliver hazardous waste in the 
State must pay the fee, not all ``truckers who merely enter the 
State.'' In addition, DEC asserted that there should be no ``concern 
about burdensome multiple taxation,'' because ``If all the states were 
to adopt a law identical to Tennessee's, the highest number of them 
that would assess the fee on a particular shipment would be two, the 
beginning and terminating states.'' DEC cited Oklahoma Tax Comm'n v. 
Jefferson Lines, Inc., 514 U.S. 175, 115 S.Ct. 1331 (1995), and 
Goldberg v. Sweet, 488 U.S. 252, 109 S.Ct. 582 (1989), as situations 
where two States might permissibly impose taxes on the same interstate 
transaction, i.e., a telephone call between persons in different States 
(Goldberg) or the purchase of a bus ticket from one State to another 
(Jefferson Lines). DEC maintained that Scheiner has not ``invalidated 
all flat taxes, but rather focused on ``the methods by which the flat 
taxes are assessed.'' DEC also argues that the remedial action fee ``is 
apportioned, as much as it can be,'' because

there is no relation between miles driven and the potential cost of 
clean up if there is an accident. One of the most significant 
factors in the expense of a clean-up is the location of the spill, 
e.g., the proximity to a stream or the nature of the subsurface 
conditions and whether they impede the migration into ground water. 
* * * These cases [Scheiner and Goldberg] show that the commerce 
clause does not require the adoption of an apportionment formula 
that does not make sense.

    In its rebuttal comments, AWHMT disagreed with each of DEC's 
arguments. AWHMT stated that the amount of the Tennessee remedial 
action fee is not reasonable because, except for one other State, it is 
the highest ``flat, unapportioned'' fee imposed on transporters of 
hazardous materials, and it is excessive when compared to ``the level 
of the transporter's instate activity'' or the ``DEC clean-up costs, 
even if transportation-related.'' AWHMT asserted that mileage ``is 
plainly relevant to the risk imposed upon the DEC, or the State for 
that matter, by the transportation of hazardous waste.'' Citing the 
decisions in the Maine (595 A.2d at 1017) and Massachusetts (613 N.E.2d 
at 103) cases, AWHMT argued that the factors cited by DEC do not vary 
between interstate and intrastate carriers and that Scheiner requires a 
State to apportion its fees based on mileage that the interstate 
carrier travels within the State, unless it is impracticable to do so.
    AWHMT also noted that RSPA takes into account the number of high 
mileage transportation corridors in a State in allocating grants under 
the Hazardous Materials Emergency Preparedness (HMEP) grants program, 
carried out in accordance with 49 U.S.C. 5116. AWHMT stated that 
Tennessee received more than $500,000 from RSPA under the HMEP grant 
program between 1993 and 1996 (and a total of $19.4 million over the FY 
'92--FY '96 period in Federal assistance for preparing and responding 
to transportation emergencies, according to a Department of Energy 
report).
    AWHMT stressed that the remedial action fee is an annual fee, which 
is the same regardless of the number of shipments into or from 
Tennessee, and that an interstate carrier is potentially exposed to a 
cumulative burden of $32,500 if every State adopted a similar fee. It 
is because the fee is set on an annual basis, rather than per shipment, 
AWHMT stated, that the fee discriminates against the interstate carrier 
who ``would pay a fee up to 49 times higher than the intrastate carrier 
for the same level of total covered operations.''
    AWHMT also asserted that the same Commerce Clause standards apply, 
whether Tennessee calls the remedial action fee a tax or a fee, and 
that these fees are ``wholly unlike'' the user fees in the Evansville-
Vanderburgh case and the inspection charges in V-1 Oil and Interstate 
Towing because they are not related to the usage of a facility or the 
services provided by the State. It stated that any language in 
Evansville-Vanderburgh sanctioning ``flat, annual user charges'' (which 
were not involved in that case) cannot be relied on following the 
Scheiner case. And it disputed DEC's argument that the ``internal 
consistency'' test should not apply to Tennessee's remedial action fee, 
stating:

    An interstate carrier faced with the prospect of paying $650 
plus permit fees in advance of any contract for at least a single 
delivery or pickup of waste in Tennessee is subject to pressure to 
avoid the State altogether. By the same token, if every State 
implemented a system like the DEC remedial action, Tennessee 
transporters would be pressured to stay out of interstate commerce. 
The DEC remedial action fee thus runs squarely afoul of the 
fundamental Commerce Clause principle that ``revenue measures must 
maintain state boundaries as a neutral factor in economic decision-
making.'' [Scheiner, 483 U.S. at 283]

    AWHMT also disagreed with DEC's argument that the remedial action 
fee is justified because the State regulates hazardous waste more 
closely than it does hazardous substances. According to AWHMT, both 
must be transported in accordance with the HMR, which requires the use 
of the Uniform Hazardous Waste Manifest for hazardous wastes (but not 
other hazardous materials) and refers to the Environmental Protection 
Agency's requirement that a transporter of hazardous waste clean up any 
release during transportation. See 49 CFR 171.3 (note), 172.205; 40 CFR 
Part 263. AWHMT asserted that, ``[i]f environmental protection fee were 
in fact the goal, this fee would apply to all hazmat carriers, not just 
hazwaste transporters picking up or delivering hazardous waste in the 
State.''
    In Evansville-Vanderburgh, the Supreme Court found that a state or

[[Page 54478]]

local ``toll'' would pass muster under the Commerce Clause so long as 
it ``is based on some fair approximation of use or privilege for use, . 
. . and is neither discriminatory against interstate commerce nor 
excessive in comparison with the governmental benefit conferred.'' 405 
U.S. at 716-17, 92 S.Ct at 1355. In that case, the Court also indicated 
that ``a State may impose a flat fee for the privilege of using its 
roads, without regard to the actual use by particular vehicles, so long 
as the fee is not excessive.'' 405 U.S. at 715, 92 S.Ct. at 1355. 
However, in Scheiner, the Court limited the application of this latter 
proposition to those situations where a flat tax is ``the only 
practicable means of collecting revenues from users and the use of a 
more finely graduated user-fee schedule would pose genuine 
administrative burdens.'' 483 U.S. at 296, 107 S.Ct. at 2847. More 
recently, the Court stated that ``a levy is reasonable under Evansville 
if it (1) is based on some fair approximation of the use of the 
facilities, (2) is not excessive in relation to the benefits conferred, 
and (3) does not discriminate against interstate commerce.'' Northwest 
Airlines, Inc. v. Kent, 510 U.S. 355, 367-68, 114 S.Ct. 855, 864 
(1994).
    As a fixed annual fee, regardless of the number of pick-ups or 
deliveries of hazardous waste within the State, Tennessee's remedial 
action fee differs from the per-trip fees in Evansville-Vanderburgh and 
from the sales or gross receipts taxes on specific interstate 
transactions in the Jefferson Lines and Goldberg cases. It is also 
different from the fees charged to offset inspections performed by the 
State in the V-1 Oil and Interstate Trucking decisions, where the cost 
of performing a required inspection would be expected to the same 
amount for both interstate and intrastate companies. There is an 
absence of any evidence that Tennessee's $650 annual fee has any 
approximation to transporters' use of roads or other facilities within 
the State, or that ``genuine administrative burdens'' prevent the 
application of a more finely graduated user fee to transporters who 
pick up or deliver hazardous waste within the State. Accordingly, 
Tennessee's remedial action fee fails the test of ``reasonableness'' in 
Evansville-Vanderburgh.
    This test appears to be the most appropriate one for interpreting 
the fairness requirement in 49 U.S.C. 5125(g)(1). RSPA notes that the 
House Committee on Energy and Commerce first used the word 
``reasonable'' in referring to this requirement, H.R. Report No. 101-
444, Part 1, p. 49 (1990), although this evolved into ``equitable'' in 
the 1990 amendments, Pub. L. 101-615, Sec. 13, 104 Stat. 3260, and then 
to ``fair'' in the 1994 codification of the Federal hazardous material 
transportation law. Pub. L 103-272, 108 Stat. 783. As noted by AWHMT, 
Senator Exon subsequently stated in floor debate that, ``even though 
the recodification refers to fees that are `fair' rather than 
`equitable,' the usual constitutional commerce clause protections 
remain applicable and prohibit fees that discriminate or unduly burden 
interstate commerce.'' Cong. Rec. S11324 (Aug. 11, 1994).
    RSPA notes that it is not simply a potential for multiple fees, but 
the lack of any relationship between the fees paid and the respective 
benefits received by interstate and intrastate carriers, that 
establishes discrimination against interstate commerce. As the 
Massachusetts Supreme Judicial Court stated in the case brought by ATA 
challenging that State's hazardous waste transporter fee:

[as] viewed from the perspective of the user, as it must be, it is 
apparent that the fee does not vary on any ``proxy for value'' 
obtained from the Commonwealth. An interstate hazardous waste 
transporter which travels just one time in the Commonwealth must pay 
the same fee as a local hazardous waste transporter. It is therefore 
apparent that the ``privilege'' of using the compliance program is 
more valuable to local transporters so that the practical effect of 
apportioning total costs on a per vehicle basis is to discriminate 
against interstate commerce.

415 Mass. at 347, 613 N.E.2d at 102. The Wisconsin Court of Appeals 
discussed the difference between a tax on ``services provided by 
disposal facilities'' within the State, which

would be constitutionally permissible under the Commerce Clause 
because the tax would be imposed on the delivery of services within 
the state. Chapter SERB 4 fees are not related to the services 
provided by in-state disposal facilities to interstate transporters 
but to carriers who cross the state line to use a facility in 
Wisconsin. Such fees are not ``apportioned'' in that they are 
unrelated to the extent of the mileage traveled within the state. 
Such a flat tax or fee clearly violates the spirit of the Commerce 
Clause to avoid the economic Balkanization that plagued relations 
among the Colonies and later among the States under the Articles of 
Confederation.

556 N.W.2d at 766-67.
    The statutory provisions directing DOT to issue Federal regulations 
governing uniform forms and procedures for State registration and 
permitting of persons who offer or transport hazardous materials (to be 
based on the recommendations of a working group) specifically provide 
that DOT's regulations may ``not define or limit the amounts of a fee a 
State may impose or collect.'' 49 U.S.C. 5119(c)(1). RSPA ``has never 
relied on the potential cumulative effect of a [fee] requirement as a 
basis for finding inconsistency,'' IR-17, Illinois Fee on 
Transportation of Spent Nuclear Fuel, 51 FR 20926, 20934 (June 9, 
1986), although RSPA has previously acknowledged the ``impact of 
widespread adoption of such fees [may be] relevant to Commerce Clause 
litigation.'' IR-17, Action on Appeal, 53 FR 36200, 36201 (Sept. 25, 
1987). Here, there is no showing that the potential for other States to 
adopt fees, by itself, makes the Tennessee remedial action fee unfair.
    Because Tennessee's remedial action fee imposed on hazardous waste 
transporters is not based on some fair approximation of the use of the 
facilities and discriminates against interstate commerce, it is not 
fair and violates 49 U.S.C. 5125(g)(1) and is preempted by Federal 
hazardous material transportation law.
3. The ``Used For'' Test
    DEC acknowledged that ``many of the situations the fund is used for 
are not related to transportation,'' but argued that it should not have 
to create ``two sub-funds, one for transportation incidents and one for 
everything else.'' If so, DEC claimed, there would be greater total 
costs for the additional ``staff to administer the program [and] it is 
quite likely that the transporters would have to pay a much larger fee 
to support a fund capable of paying the costs of a significant removal 
and remediation effort at a hazardous substance site.''
    DEC refused to concede that ``any money paid by a transporter has 
actually been paid for any of these other situations or purposes 
because the fund has not been below $170,000 in the time period of 
concern.'' It also stated that ``Congress clearly authorized fees such 
as Tennessee's'' because

    The Hazardous Waste Remedial Action Fund is the only source of 
funds available to the Department of Environmental Conservation, or 
the State of Tennessee, which can be used to hire contractors to 
address emergencies caused by spills of hazardous waste resulting 
from transportation accidents.

    DEC argued that even though it has spent less than $15,000 from 
this fund in cleaning up highway and rail incidents, ``[i]t just 
happens that the liable party is doing that work rather than the 
state's contractor.'' DEC asserted that the fund provides the 
capability for emergency response, including developing, implementing,

[[Page 54479]]

and supervising contracts, and that it is inappropriate to compare 
receipts and costs in any single year. It stated that ``Sec. 5125(g) 
does not require that we look into what events occur in what years with 
the possible result that the fee would be preempted in some years and 
not in others.''
    DEC contrasts its remedial action fee with the fees charged by Los 
Angeles County which RSPA found to be preempted in PD-9(R), 60 FR 8774, 
8784 (Feb. 15, 1995), petition for reconsideration pending. It stated 
that the fees considered in PD-9(R) paid for administration of a 
requirement that businesses plan for emergency response to hazardous 
materials not in transportation, rather than the State's own capability 
for emergency response to a transportation incident. DEC also argued 
that ``what the fees are actually spent on is irrelevant,'' under the 
Evansville-Vanderburgh case and New Hampshire Motor Transport Ass'n v. 
Flynn, 751 F.2d 43 (1st Cir. 1984). These cases, according to DEC, show 
that ``it is permissible under the commerce clause and the HMTA to 
combine the purposes of a fund.''
    In its application, AWHMT asserted that Tennessee's remedial action 
fee is preempted because none of the uses of the Hazardous Waste 
Remedial Action Fund ``address enforcement and emergency response for 
transportation of hazardous materials within the meaning of 49 U.S.C. 
5125(g)(1).'' In rebuttal comments, AWHMT questions whether ``inactive 
hazardous substance sites'' properly include the location of a 
hazardous material transportation incident, because the carriers are 
known parties from which the State can recover clean-up costs. It also 
questioned whether the `` `clean up' after an emergency has been abated 
is `transportation-related' within the meaning of 49 U.S.C. 
5125(g)(1).'' AAR agreed that none of the purposes listed in Tennessee 
Code 68-212-205, for which the fund may be used, ``target 
transportation activities.'' HMAC stated that, while these monies may 
be used ``for many worthwhile purposes * * * the use of funds for these 
activities is not related to the transportation of hazardous material, 
as required by Federal statute, and therefore not permitted.''
    AAR also stated in its rebuttal comments that a ``separate 
transportation program'' for use of the remedial action fees would not 
necessarily involve greater costs because ``Tennessee can create a 
separate program with shared administrative costs.'' AAR argued that, 
because there is no segregation of the fees paid by transporters of 
hazardous waste, it is impossible to find that these fees are being 
used only for transportation purposes, as required by Sec. 5125(g)(1). 
AAR pointed out that the transporters themselves, rather than the 
State, have paid the cost of cleaning up train incidents.
    With respect to DEC's statement that the Hazardous Waste Remedial 
Action Fund is the only source of funds available to clean up spills of 
hazardous waste in transportation, AAR contended that, even if correct, 
this point is irrelevant:

    Congress did not add a qualification that a State fee would not 
be preempted if it were the only source of funds for a particular 
purpose. * * * [T]here is nothing to prohibit Tennessee from 
developing an emergency response capability utilizing a fee that 
does not violate the dictates of 49 U.S.C. Sec. 5125(g).

AWHMT referred to the responsibility of transporters to respond to an 
incident and the Federal financial responsibility requirements in 49 
CFR Part 387 to cover environmental damage. It also pointed to Federal 
assistance, including grants by RSPA under the HMEP program.
    In response to DEC's arguments that it had not actually used fees 
collected from transporters for non-transportation purposes, AWHMT 
addressed several points. It argued that the fact that the funds are 
commingled in a single fund precludes a claim of ``non-use,'' that the 
State may not properly collect fees on transportation and hold them 
indefinitely because Sec. 5125(g)(1) requires that they be ``used'' for 
transportation-related activities, and that the total amount collected 
from transporters is at least $500,000, rather than the $170,000 just 
for 1996.
    CERCLA was enacted ``to provide for a national inventory of 
inactive hazardous waste sites'' and to authorize EPA ``to take 
emergency assistance and containment actions with respect to such 
sites,'' finances by a ``Superfund.'' H.R. Report No. 96-1016, Part I, 
Interstate and Foreign Commerce Committee, p. 17 (May 16, 1990), as 
reprinted in 1980 U.S. Code Congressional and Administrative News, pp. 
6119-20. In 1986, Congress amended CERCLA to provide additional funding 
``to clean up the Nation's worst abandoned hazardous waste sites and 
uncontrolled leaking underground storage tanks.'' H.R. Report No. 99-
253, Part I, Energy and Commerce Committee, p. 54, as reprinted in 1986 
U.S. Code Congressional and Administrative News, p. 2836. While an 
``inactive'' or ``abandoned'' waste site could result from a release in 
transportation, it is clear that the primary purpose of the Superfund 
was not to provide for the cleanup of transportation incidents.
    Tennessee acknowledges that the primary purpose of its remedial 
action fund is similarly to clean up ``inactive hazardous substance 
sites.'' The State argues that the fund is also available (and is the 
only source for) cleaning up a release of a hazardous substance in 
transportation, but it admits that it has spent less than $15,000 in 
supervising cleanup activities conducted by transporters--out of the 
approximately $170,000 it collects each year. Without providing 
specific figures, Tennessee seems to claim that the unspecified excess 
that has been built up since 1994 is simply being kept in reserve for 
possible future transportation incidents.
    This does not satisfy the requirement in 49 U.S.C. 5125(g)(1) that 
hazardous material transporter fees must be ``used for a purpose 
related to transporting hazardous material, including enforcement and 
planning, developing, and maintaining a capability for emergency 
response.'' If the State prefers not to create and maintain a separate 
fund for fees paid by hazardous materials transporters, then it must 
show that it is actually spending these fees on the purposes permitted 
by the law. In this area where only the State has the information 
concerning where these funds are spent, more specific accounting is 
required. Under section 5125(g)(2)(B), upon RSPA's request, a State 
must report on ``the purposes for which the revenues from the fee are 
used.'' In the April 6, 1998 public notice, RSPA asked Tennessee to set 
forth in detail how much it collected and how it used the fees it 
collected in fiscal year 1996-97. Although DEC's comments included 
information on the amounts of remedial action fees collected, the State 
accounted for less than $15,000 in expenditures. Although it claims 
that the current balance in the remedial action fund exceeds the amount 
collected from transporters in any one year, DEC has failed to 
demonstrate that none of the fees collected from transporters were 
spent for non-transportation purposes. Nor has it justified imposing 
fees on transporters of hazardous waste simply to create a large 
surplus for the future.
    Because Tennessee is not using the remedial action fees paid by 
hazardous waste transporters for purposes related to transporting 
hazardous material, that fee violates 49 U.S.C. 5125(g)(1) and is 
preempted by Federal hazardous material transportation law.

[[Page 54480]]

C. Written Notification of Incidents

    The HMR require a carrier to submit to RSPA, ``within 30 days of 
the date of discovery,'' a written report of certain incidents that 
occur during the course of transportation, including any 
``unintentional release of hazardous materials from a packaging 
(including a tank) or [when] any quantity of hazardous waste has been 
discharged during transportation.'' This report must be submitted on 
DOT Form F 5800.1 and, when it pertains to a discharge of hazardous 
waste, a copy of the hazardous waste manifest must be attached, and 
``[a]n estimate of the quantity of the waste removed from the scene, 
the name and address of the facility to which it was taken, and the 
manner of disposition of any removed waste must be entered in Section 
IX of the report form.'' 49 CFR 171.16(a).
    Section 171.16 was added to the HMR in 1970 in response to a 
recommendation of the National Transportation Safety Board that DOT 
develop and establish a uniform system for reporting incidents in the 
transportation of hazardous materials by all modes. Final Rule, Reports 
of Hazardous Materials Incidents, 35 FR 16836, 16837 (Oct. 31, 1970); 
see also RSPA's notice of proposed rulemaking (NPRM), 34 FR 17450 (Oct. 
29, 1969). In the NPRM, RSPA stated that:

    The information derived from these reports will be used by the 
Department: (1) As an aid in evaluating the effectiveness of the 
existing regulations; (2) to assist in determining the need for 
regulatory changes to cover changing transportation safety problems; 
and (3) to determine the major problem areas so that the attention 
of the Department may be more suitably directed to those areas.

Id. In 1989, the time for submitting written incident reports was 
increased from 15 days to 30 days after the carrier's discovery of the 
incident, and DOT Form F 5800.1 was revised. Final Rule, Detailed 
Hazardous Materials Incident Reports, 54 FR 25806, 25813 (June 19, 
1989). RSPA has recently begun a new rulemaking proceeding to evaluate 
the need for any change in the reporting requirements and consider 
changes to DOT Form F 5800.1 to obtain more useful information and 
reduce the burdens on the carriers who are required to submit these 
reports. See RSPA's advance notice of proposed rulemaking, 64 FR 13943 
(March 23, 1999).
    Under DEC Rule 1200-1-11-.04(4)(a)4, a carrier must also send a 
written report to DEC ``on each hazardous waste discharge during 
transportation that occurs in'' Tennessee. This written report must be 
submitted ``[w]ithin fifteen days of occurrence,'' and must include 
specified information about the discharge, ``a discussion of the cause 
of the emergency, and a summary of the emergency response (including 
the treatment or disposition of any spilled waste or contaminated 
material).'' A copy of the hazardous waste manifest must be included 
with the report. The note to DEC Rule 1200-1-11.-04(4)(a)4 indicates 
that a copy of DOT Form F 5800.1 ``shall suffice for this report 
provided that it is properly completed and supplemented as necessary to 
include all information required by this paragraph.''
    Although AAR contended that DEC requires ``more information [to] be 
provided'' than on DOT Form F 5800.1, and DEC admitted that its 
requirement calls for ``additional information to be submitted besides 
what is required on DOT form 5800.1,'' no party specified what 
additional information is required. Conceding that its written incident 
notification requirement is preempted, DEC stated that its ``[s]taff 
has been advised to amend those rules accordingly.'' In rebuttal 
comments, AWHMT asserted that DEC has not clarified whether it intends 
to eliminate its written incident notification requirement or revise 
that requirement to either be more ``consistent with the data sets on 
DOT form 5800.1 or otherwise require carriers to provide to the DEC a 
copy of the DOT form 5800.1.'' DEC Rule 1200-1-11-.04(4)(a)4 has not 
been revised in the current (March 1999) version of DEC's rules 
available on the State of Tennessee internet homepage.
    Aside from the differing time periods in which the reports must be 
filed, and issues concerning the information that must be included, 
AWHMT refers to RSPA's prior holdings that Federal hazardous material 
transportation law preempts a State requirement for the carrier to 
directly submit a copy of the incident report form that it must send to 
RSPA. HMAC states that ``Federal law does not require localities to 
receive written reports when hazardous waste releases occur within 
their jurisdiction.''
    In IR-2, RSPA contrasted State requirements for submission of 
follow-up written reports with the separate need for local emergency 
responders to have immediate oral or telephonic notification of an 
transportation incident involving hazardous materials. RSPA stated 
that:

    The written notice required to be supplied to [DOT] pursuant to 
49 CFR 171.16 precludes the State from requiring additional written 
notice directed to hazardous materials carriers.  * * * In light of 
the Federal written notice requirement, however, it is inappropriate 
for a State to impose an additional written notice requirement to 
apply solely to carriers already subject to the Hazardous Materials 
Regulations. The detailed hazardous materials incident reports filed 
with [DOT] are available to the public.

44 FR at 75568, affirmed on appeal in IR-2(A), 45 FR 71881, 71884 (Oct. 
30, 1980), and in National Tank Truck Carriers, Inc. v. Burke, 535 F. 
Supp. 509 (D.R.I. 1982), aff'd, 698 F.2d 559 (1st Cir. 1983).
    In IR-3, Boston Rules Governing Transportation of Certain Hazardous 
Materials Within the City, 46 FR 18918, 18924 (Mar. 26, 1981), RSPA 
referred to its earlier decision in IR-2 and the procedures for RSPA to 
provide to a ``designated State agency'' copies of the written reports 
required by 49 CFR 171.16. RSPA reiterated its ruling that a State or 
locality may not require a carrier to directly submit a copy of the DOT 
Form F 5800.1:

    Subsequent written reports required within 15 days by DOT are 
not necessary to local emergency response. These reports themselves 
are publicly available, and [RSPA] is prepared to routinely send 
copies of written reports to a designated State agency on request. 
Copies of written reports required by DOT * * * may not be required 
by [the City's ordinance].

46 FR at 18924. In response to an administrative appeal submitted by 
the City of Boston, RSPA further explained that:

the information in a written incident report * * * will very often 
be of only limited usefulness, is not time-sensitive, and in any 
event can be obtained by the City [from RSPA] with only a minimum of 
effort. If the City in fact intends to make serious use of the 
information in DOT incident reports, the effort to obtain it from 
[RSPA] rather than the carrier should not be significant. 
Accordingly, we reaffirm our previous conclusion that Boston's 
requirement that carriers submit written reports is redundant, 
unnecessary, and inconsistent with the HMTA and HMR.

IR-3(A), 47 FR 18457, 18462 (Apr. 29, 1982). Accord, IR-31, Louisiana 
Statutes and Regulations on Hazardous Materials Transportation, 55 FR 
25572, 25582 (June 21, 1990), appeal dismissed as moot, 57 FR 41165 
(Sept. 9, 1992), where RSPA found that

the provisions of State law which require the submission of written 
accident/incident reports are redundant with Federal requirements 
(particularly 49 CFR 171.16), tend to undercut compliance with the 
HMR requirements, and thus are inconsistent. [citations] This 
rationale also applies to requirements to provide copies of the 
incident reports filed with [RSPA]; as indicated in IR-3, supra, 
such a requirement is inconsistent, but [RSPA] is prepared to

[[Page 54481]]

routinely send copies of those reports to a designated state agency 
on request.

    In the 1990 amendments to the HMTA, Congress provided that non-
Federal requirements on written incident notification are preempted 
unless they are substantively the same as in the HMR. 49 U.S.C. 
5125(b)(1)(D). In H.R. Report No. 101-444, Part I, at 34-35 (1990), the 
House Committee on Energy and Commerce set forth its belief that

uniform requirements for written notices and reports describing 
hazardous materials incidents will allow for the development of an 
improved informational database, which in turn may be used to assess 
problems in the transportation of hazardous materials. Without 
consistency in this area, data related to hazardous materials 
incidents may be misleading and confusing. Additional State and 
local requirements would also be burdensome on those involved in 
such incidents and may lead to liability for minor deviations.

    DOT has long encouraged States to adopt and enforce requirements 
for transporting hazardous materials that are consistent with the HMR. 
Under its Motor Carrier Safety Assistance Program, see 49 CFR Part 350, 
FHWA provides grants to States that adopt and enforce requirements that 
are compatible with both the HMR and the FHWA's Federal Motor Carrier 
Safety Regulations (FMCSR) at 49 CFR Parts 390-399.
    Tennessee has adopted the HMR, including 49 CFR 171.16, as State 
law, Rule 1200-2-1-.32.7 The State received more than $1.8 
million in fiscal year 1999 from DOT to enforce the HMR and the FMCSR. 
Accordingly, Tennessee may require a carrier to file a written incident 
report with RSPA, under the same conditions specified in 49 CFR 171.16, 
and it may impose penalties on a carrier that fails to file the 
required written incident report with RSPA. Tennessee may also obtain 
from RSPA copies of incident reports filed by carriers in order to 
enforce this filing requirement and to conduct follow-up investigations 
of incidents occurring within the State. In each of these respects, 
Tennessee is acting ``substantively the same as'' Federal law. However, 
Tennessee may not require a carrier to file a copy of the DOT Form F 
5800.1 report, or a separate incident report, directly with the State. 
This last requirement is substantively different from the HMR.
---------------------------------------------------------------------------

    \7\ Tennessee Code 68-212-107(d) also provides that 
``Regulations providing requirements for the transportation, 
containerization, and labeling of hazardous waste shall be 
consistent with those issued by the United States department of 
transportation * * *''
---------------------------------------------------------------------------

    DEC Rule 1200-1-11.-04(4)(a)4 is preempted because it is not 
substantively the same as 49 CFR 171.16.

IV. Ruling

    Federal hazardous material transportation law preempts:
    1. Tennessee Code 68-212-203(a)(6) and Rule 1200-1-13.03(1)(e), 
requiring a transporter who picks up or delivers hazardous waste within 
the State to pay a remedial action fee, currently set at $650 per year.
    2. Tennessee Rule 1200-1-11-.04(4)(a)4, requiring a transporter of 
hazardous waste to submit a written report on a discharge of hazardous 
waste during transportation.

IV. Petition for Reconsideration/Judicial Review

    In accordance with 49 CFR 107.211(a), ``[a]ny person aggrieved'' by 
this decision may file a petition for reconsideration within 20 days of 
publication of this decision in the Federal Register. Any party to this 
proceeding may seek review of RSPA's decision ``in an appropriate 
district court of the United States * * * not later than 60 days after 
the decision becomes final.'' 49 U.S.C. 5125(f).
    This decision will become RSPA's final decision 20 days after 
publication in the Federal Register if no petition for reconsideration 
is filed within that time. The filing of a petition for reconsideration 
is not a prerequisite to seeking judicial review of this decision under 
49 U.S.C. 5125(f).
    If a petition for reconsideration of this decision is filed within 
20 days of publication in the Federal Register, the action by RSPA's 
Associate Administrator for Hazardous Materials Safety on the petition 
for reconsideration will be RSPA's final decision. 49 CFR 107.211(d).

    Issued in Washington, D.C. on September 30, 1999.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 99-26037 Filed 10-5-99; 8:45 am]
BILLING CODE 4910-60-P