[Federal Register Volume 65, Number 73 (Friday, April 14, 2000)]
[Notices]
[Pages 20258-20263]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-9257]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

Federal Motor Carrier Safety Administration

[Docket No. RSPA-00-7021 (PDA-23(RF))]


Application by Med/Waste, Inc. and Sanford Motors, Inc. for a 
Preemption Determination as to Morrisville, PA, Requirements for 
Transportation of ``Dangerous Waste''

AGENCY: Research and Special Programs Administration (RSPA) and Federal 
Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Public Notice and Invitation to Comment.

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SUMMARY: Interested parties are invited to submit comments on an 
application by Med/Waste, Inc. and Sanford Motors, Inc. for an 
administrative determination whether Federal hazardous materials 
transportation law preempts requirements of the Borough of Morrisville, 
Pennsylvania, concerning the transportation of ``dangerous waste'' 
(including infections, chemotherapeutic, or hazardous wastes) within 
the Borough of Morrisville.

DATES: Comments received on or before May 30, 2000, and rebuttal 
comments received on or before July 13, 2000, will be considered before 
an administrative ruling is issued jointly by RSPA's Associate 
Administrator for Hazardous Materials Safety and FMCSA's Administrator. 
Rebuttal comments may discuss only those issues raised by comments 
received during the initial comment period and may not discuss new 
issues.

ADDRESSES: The application and all comments received may be reviewed in 
the Dockets Office, U.S. Department of Transportation, Room PL-1401, 
400 Seventh Street, SW, Washington, DC 20590-0001. The application and 
all comments are also available on-line through the home page of DOT's 
Docket Management System, at ``http://dms.dot.gov.''
    Comments must refer to Docket No. RSPA-00-7021 and may be submitted 
to the docket either in writing or electronically. Send three copies of 
each written comment to the Dockets Office at the above address. If you 
wish to receive confirmation of receipt of your written comments, 
include a self-addressed, stamped postcard. To submit comments 
electronically, log onto the Docket Management System website at http://dms.dot.gov, and click on ``Help & Information'' to obtain 
instructions.
    A copy of each comment must also be sent to (1) Med/Waste's Vice 
President for Legal Affairs, Ross M. Johnston, Esq., Med/Waste, Inc., 
6175 N.W. 153rd Street, Suite 324, Miami Lakes, FL 33014, and (2) the 
solicitor to the Borough of Morrisville, Stephen L. Needles, Esq., 
Stuckert and Yates, Two North State Street, P.O. Box 70, Newtown, PA 
18940. 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 Mr. Johnston 
and Mr. Needles 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 issued, are available through the home page of RSPA's 
Office of the Chief Counsel, at ``http://rspa-atty.dot.gov.'' A paper 
copy of this list and index will be provided at no cost upon request to 
Mr. Hilder, at the address and telephone number set forth in For 
Further Information Contact below.

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief 
Counsel, Research and Special Programs Administration (Tel. No. 202-
366-4400), or Joseph Solomey, Office of the Chief Counsel, Federal 
Highway Administration (Tel. No. 202-366-1374), U.S. Department of 
Transportation, Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:  

I. Application for a Preemption Determination

    Med/Waste, Inc. and its subsidiary, Sanford Motors, Inc. 
(collectively ``Med/Waste'') have applied for a determination that 
Federal hazardous material transportation law, 49 U.S.C. 5101 et seq., 
preempts requirements contained in Ordinance No. 902 of the Borough of 
Morrisville, Pennsylvania, applicable to the transportation of 
``dangerous waste'' (including infectious, chemotherapeutic, and 
hazardous wastes as defined in Ordinance No. 902) in and through the 
Borough of Morrisville. In a later letter to RSPA's Office of the Chief 
Counsel, Med/Waste provided the name of the Borough Manager of the 
Borough of Morrisville and a copy of a newspaper article that relates 
to the adoption of Ordinance No. 902. Through its solicitor, the 
Borough of Morrisville responded to Med/Waste's application in a March 
1, 2000 letter.

[[Page 20259]]

    The test of Med/Waste's application and a list of the exhibits to 
the application are set forth in Appendix A to this notice. A paper 
copy of the exhibits to Med/Waste's application (which have been placed 
in the public docket) will be provided at no cost upon request to Mr. 
Hilder, at the address and telephone number set forth in For Further 
Information Contact above. The Borough of Morrisville's March 1, 2000 
letter is Appendix B to this notice.
    In the application, Med/Waste challenges:
    (1) The definitions of ``infectious waste,'' ``hospital waste,'' 
and ``dangerous waste'' in Section 01 of Ordinance No. 902 and the use 
of the term ``dangerous waste'' throughout the ordinance. In Section 
01, ``dangerous waste'' is defined to mean ``infectious wastes, 
chemotherapeutic wastes, or hazardous wastes, or any combination 
thereof.'' Section 07 of Ordinance No. 902 provides that ``For purposes 
of this Ordinance, all Hospital Waste shall be presumed to be DANGEROUS 
WASTE.'' Med/Waste asserts that the terms ``infectious waste,'' 
``hospital waste,'' and ``dangerous waste'' conflict with the 
designations, descriptions and classifications of hazardous materials 
in the HMR.
    (2) The designation of Pennsylvania Route 1 (between the Delaware 
River Toll Bridge and the boundary line with the Township of Falls) as 
the only street in the Borough of Morrisville that may be used by 
trucks transporting dangerous waste. Med/Waste contends that this 
limitation does not comply with the requirements in 49 U.S.C. 5112 and 
31114, and that this restriction cuts off its access to its facility 
that holds a permit from the Pennsylvania Department of Environmental 
Protection to transport infectious and chemotherapeutic wastes that are 
not ``hazardous wastes'' under Pennsylvania regulations. Med/Waste also 
states that the routing limitation may be a constructive taking of its 
property without just compensation in violation of the Fifth Amendment 
to the U.S. Constitution.
    (3) The requirement in Section 05(a) of Ordinance No. 902 that each 
truck transporting dangerous waste:

shall carry and have available for inspection the manifest required 
for transportation of such waste under the Resource Conservation and 
Recovery Act, or federal or state regulations implementing that Act.

Med/Waste states that the ordinance requires the preparation of a 
hazardous waste manifest for shipments of regulated medical waste, in 
conflict with the HMR. Med/Waste asserts that ``Regulated medical waste 
as defined by the HMR is not a hazardous waste as defined in 40 CFR 
part 262.''
    In its responding letter, the Borough of Morrisville argues that, 
under City of Philadelphia v. New Jersey, 437 U.S. 617 (1978), and 
Ensco, Inc. v. Dumas, 807 F.2d 743 (8th cir. 1986),

states and local municipalities are permitted to establish waste 
management standards more stringent than those imposed by federal 
law and that only local regulations which totally prohibit storage, 
transportation or treatment should be preempted.

    The Borough of Morrisville contends that the ``elements of the 
definitions'' of ``Infectious Waste,'' ``Hospital Waste,'' and 
``Dangerous Waste'' are substantively the same as the definitions in 49 
CFR 173.134(a)(4). It acknowledges that the Borough's requirement for 
drivers to carry a written manifest when hauling dangerous wastes ``may 
be different from the federal regulation,'' but states that this 
difference ``does not render the applicant's ability to comply with 40 
CFR 261.3 impossible, nor does it impede the objectives of the federal 
law.''
    In its letter, the Borough of Morrisville also states that its 
ordinance does not restrict Med/Waste's ability to use Route 1 within 
the Borough. It refers to the authority of a State to designate highway 
routes for the transportation of hazardous materials, under 49 U.S.C. 
5112, and asserts that ``In Pennsylvania, this right is further 
delegated to counties and municipalities by Section 304 of the 
Municipal Waste, Planning, Recycling and Waste Reduction Act, 53 
Pa.C.S.A Sec. 4000.304.''

II. Federal Preemption

    Section 5125 of Title 49 U.S.C. contains several preemption 
provisions that are relevant to Med/Waste's application. Subsection (a) 
provides that--in the absence of a waiver of preemption by DOT under 
section 5125(e) or specific authority in another Federal law--a 
requirement of a State, political subdivision of a State, or Indian 
tribe is preempted if:

    (1) complying with a requirement of the State, political 
subdivision or tribe and a requirement of this chapter or a 
regulation issued under this chapter is not possible; or
    (2) the requirement of the State, political subdivision, or 
Indian tribe, as applied or enforced, is an obstacle to the 
accomplishing and carrying out this chapter or a regulation 
prescribed under this chapter.

These two paragraphs set forth the ``dual compliance'' and ``obstacle'' 
criteria which RSPA had applied in issuing inconsistency rulings prior 
to 1990, under the original preemption provision in the Hazardous 
Materials Transportation Act (HMTA). Public Law 93-633 section 112(a), 
88 Stat. 2161 (1975). The dual compliance and obstacle criteria are 
based on U.S. Supreme Court decisions on preemption. Hines v. 
Davidowitz, 312 U.S. 52 1941; Florida Lime & Avocado Growers, Inc. v. 
Paul, 373 U.S. 132 (1963); Ray v. Atlantic Richfield, Inc., 435 U.S. 
151 (1978).
    Subsection (b)(1) of 49 U.S.C. 5125 provides that a non-Federal 
requirement concerning any of the following subjects, that is not 
``substantively the same as'' a provision of Federal hazardous material 
transportation law or a regulation prescribed under that law or DOT 
grants a waiver or preemption:

    (A) the designation, description, and classification of 
hazardous material.
    (B) the packing, repacking, handling, labeling, marketing, and 
placarding of hazardous material.
    (C) the preparation, execution, and use of shipping documents 
related to hazardous material and requirements related to the 
number, contents, and placement of those documents.
    (D) the written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material.
    (E) the design, manufacturing, fabricating, marking, 
maintenance, reconditioning, repairing, or testing of a packaging or 
a container represented, marked, certified, or sold as qualified for 
use in transporting hazardous material.

To be ``substantively the same,'' the non-Federal requirement must 
``conform[] in every significant respect to the Federal requirement. 
Editorial and other similar de minimis changes are permitted.'' 49 CFR 
107.202(d).
Subsection (c)(1) of 49 U.S.C. 5125 provides that, beginning two years 
after DOT prescribes regulations on standards to be applied by States 
and Indian tribes in establishing requirements on highway routing of 
hazardous materials,

a State or Indian tribe may establish, maintain, or enforce a 
highway routing designation over which hazardous material may or may 
not be transported by motor vehicles, or a limitation or requirement 
related to highway routing, only if the designation, limitation, or 
requirement complies with section 5112(b).\1\
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    \1\ DOT's standards and procedures for State and Indian tribe 
requirements for highway routing of non-radioactive hazardous 
materials are issued under 49 U.S.C. 5112(b) and contained in 49 CFR 
Part 397, subpart C.

    These preemption provisions in 49 U.S.C. 5125 carry out Congress's 
view that a single body of uniform Federal regulations promotes safety 
in the transportation of hazardous materials. In considering the HMTA, 
the Senate

[[Page 20260]]

Commerce Committee ``endorse[d] the principle of preemption in order to 
preclude a multiplicity of State and local regulations and the 
potential for varying as well as conflicting regulations in the area of 
hazardous materials transportation.'' S. Rep. No. 1102, 93rd Cong. 2nd 
Sess. 37 (1974). When it amended the HMTA in 1990, Congress 
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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 in necessary and desirable,
    (5) in order to achieve greater uniformity and to promote the 
public health, welfare, and safety at all levels, Federal standards 
for regulating the transportation of hazardous materials in 
intrastate, interstate, and foreign commerce are necessary and 
desirable.

Public Law 101-615 Section 2, 104 Stat. 3244. A Federal Court of 
Appeals has found that uniformity was the ``linchpin'' in the design of 
the HMTA, including the 1990 amendments that expanded the original 
preemption provisions. Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 
1571, 1575 (10th Cir. 1991). (In 1994, Congress revised, codified and 
enacted the HMTA ``without substantive change,'' at 49 U.S.C. Chapter 
51. Public. Law. 103-272, 108 Stat. 745.)

III. Preemption Determinations

    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 FMCSA and 
those concerning all other hazardous materials transportation issues to 
RSPA. 49 CFR 1.53(b) and 1.73(d)(2) (as added October 9, 1999, 64 FR 
56720, 56721 [Oct. 19, 1999], and revised January 1, 2000, 65 FR 220, 
221 [Jan. 4, 2000]). Because Med/Waste's application concerns both 
highway routing issues and non-highway routing issues, FMCSA's 
Administrator will address highway routing issues, and RSPA's Associate 
Administrator for Hazardous Materials Safety will address non-highway 
routing issues. 49 CFR 107.209(a), 397.211(a).
    Section 5125(d)(1) requires that notice of an application for a 
preemption determination must be published in the Federal Register. 
Following the receipt and consideration of written comments, FMCSA and 
RSPA will publish their determination in the Federal Register. See 49 
CFR 107.209(d), 397.211(d). A short period of time is allowed for 
filing of petitions for reconsideration. 49 CFR 107.211, 397.223. 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, the Fifth Amendment or other 
provisions of the Constitution or under statutes other than the Federal 
hazardous material transportation law unless it is necessary to do so 
in order to determine whether a requirement is authorized by another 
Federal law. A State, local or Indian tribe requirement is not 
authorized by another Federal law merely because it is not preempted by 
another Federal statute. Colorado Pub. Util. Comm'n v. Harmon, above, 
951 F.2d at 1581 n.10.
    In making preemption determinations under 49 U.S.C. 5125(d), FMCSA 
and RSPA are guided by the principles and policies set forth in 
Executive Order No. 13132, entitled ``Federalism'' (64 FR 43255 (August 
4, 1999). Section 4(a) of that Executive Order authorizes preemption of 
State laws only when a statute contains an express preemption 
provision, there is other clear evidence that Congress intended to 
preempt State law, or the exercise of State authority directly 
conflicts with the exercise of Federal authority. Section 5125 contains 
express preemption provisions, which FMCSA and RSPA have implemented 
through their regulations.

IV. Public Comments

    All comments should be limited to the issue whether 49 U.S.C. 5125 
preempts the Borough of Morrisville's requirements challenged by Med/
Waste. Comments should specifically address the preemption criteria 
detailed in Part II, above, and set forth in detail the manner in which 
the Borough of Morrisville's requirements in Ordinance No. 902 were 
adopted and are applied and enforced, including but not limited to:
    (1) whether the term ``dangerous waste'' in Ordinance No. 902 
includes materials that are not defined as an ``infectious substance'' 
under the HMR, 49 CFR 173.134(a);
    (2) how the materials defined as ``regulated medical waste'' in the 
HMR, 49 CFR 173.134, are categorized or classified under Ordinance No. 
902;
    (3) whether the term ``hazardous waste'' in Ordinance No. 902 
includes materials that are not defined as a ``hazardous waste'' in the 
HMR, 49 CFR 171.8;
    (4) whether Ordinance No. 902 requires a hazardous waste manifest 
to be prepared for, and accompany, a shipment of an ``infectious 
substance'' or a ``regulated medical waste,'' as those two terms are 
defined in the HMR, 49 CFR 173.134(a);
    (5) the application of Pennsylvania's Municipal Waste Planning and 
Recycling and Waste Reduction Act, 53 P.S. 4000.101 et seq., and solid 
Waste Management Act, 35 P.S. 6018.101 et seq., and the regulations 
issued under those statutes to the transportation of an ``infectious 
substance'' or a ``regulated medical waste,'' as those two terms are 
defined in the HMR \2\;
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    \2\ Please provide a copy of any State regulation referred to in 
a comment on Med/Waste's application.
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    (6) the extent to which adoption of the routing limitation in 
Section 02 of Ordinance No. 902 was in compliance with the Federal 
standards set forth in 49 CFR 397.71(b), including but not limited to 
the standards concerning:
    (a) Notice to the public, 49 CFR 397.71(b)(2);
    (b) Notice to officials responsible for highway routing in New 
Jersey or in political subdivisions adjacent to the Borough of 
Morrisville, 49 CFR 397.71(b)(3);
    (c) Reasonable access for motor vehicles transporting hazardous 
materials to terminals; points of unloading, unloading, pickup and 
delivery; and facilities for food, fuel, repairs, rest, and safe 
havens, 49 CFR 397.71(b)(7);
    (d) The State's actions to ensure that its political subdivisions 
comply with 49 CFR Part 397, subpart C, 49 CFR 397.71(b)(8);
    (e) Population density, type of highway, type and quantity of 
hazardous material, emergency response capabilities, consultation with 
affected persons, exposure and other risk factors, terrain 
considerations, continuity of routes, alternative routes, effects on 
commerce, delays in transportation, climatic conditions, and congestion 
and accident history, 397.71(b)(9); and
    (7) whether the State of Pennsylvania has provided information of 
the routing limitation in Section 02 of Ordinance No. 902 to DOT, as 
specified in 49 CFR 397.73(b). Persons intending to

[[Page 20261]]

comment should review the standards and procedures governing 
consideration of applications for preemption determinations, set forth 
at 49 CFR 107.201-107.211, and 397.201-397.211.

    Issued in Washington, DC on April 10, 2000.
Julie Anna Cirillo,
Acting Deputy Administrator, Federal Motor Carrier Safety 
Administration.
Robert A. McGuire,
Acting Associate Administrator for Hazardous Materials Safety, Research 
and Special Programs, Administration.

Appendix A

December 30, 1999.
Hazardous Materials Preemption Docket, Associate Administrator for 
Hazardous Materials Safety, Research and Special Administration, 
U.S. Department of Transportation, Washington, DC.

Preemption Application

    Dear Sir/Madam; Pursuant to 49 USC Sec. 5125(d) 1999 and the 
Department of Transportation regulations 49 CFR Sec. 107.203 et 
seq., Med/Waste, Inc., a publicly traded Delaware corporation 
together with its subsidiary Sanford Motors., Inc., a Pennsylvania 
corporation (hereafter referred to as ``SMI'') make application to 
the Associate Administrator to determine that the provisions of the 
Borough of Morrisville's Ordinance No. 902, enacted September 20, 
1999, are preempted by the Hazardous Material Regulations, 49 CFR 
Sec. 171-173 1999, as hereinafter set forth.
    The full text of the Morrisville ordinance No. 902 is attached 
as Exhibit ``A''. Specific provisions of the Morrisville Ordinance 
No. 902 and the preemptive Hazardous Material Regulations 
counterpart are identified below:
    1. Section 01: Definitions.
    (c) Infectious Waste. ``Infectious Waste'' is waste that 
contains or may contain any disease-producing microorganism or 
material. Infectious wastes include but are not limited to the 
following:
    (i) Those wastes that are generated by hospitalized patients who 
are isolated in separate rooms in order to protect others from their 
severe and communicable diseases.
    (ii) All cultures and stocks of etiologic agents.
    (iii) All waste blood and blood products.
    (iv) Tissues, organs, body parts, blood and body fluids that are 
removed during surgery and autopsy, and other wastes generated by 
surgery or autopsy of septic cases or patients with infectious 
diseases.
    (v) Wastes that were in contact with pathogens in any type of 
laboratory work, including collection containers, culture dishes,
    (vi) slides, plates and assemblies for diagnostic tests; and 
devices used to transfer, inoculate and mix cultures.
    (vii) Sharps, including hypodermic needles, suture needles, 
disposable razors, syringes, Pasteur pipettes, broken glass and 
scalpel blades.
    (viii) Wastes that were in contact with the blood of patients 
undergoing hemodialysis at hospitals or independent treatment 
centers.
    (ix) Carcasses and body parts of all animals, which were exposed 
to zoonotic pathogens.
    (x) Animal bedding and other wastes that were in contact with 
diseased or laboratory research animals or their excretions, 
secretions, carcasses or body parts.
    (xi) Waste biologicals (e.g., vaccines) produced by 
pharmaceutical companies for human or veterinary use.
* * * * *
    (e) Storage. ``Storage'' means the holding of DANGEROUS WASTE 
for a temporary period, at the end of which the DANGEROUS WASTE is 
treated, disposed of, moved, or stored elsewhere.
    (f) Dangerous Waste. ``DANGEROUS WASTE'' means infectious 
wastes, or chemotherapeutic wastes, or hazardous wastes, or any 
combination thereof.
    (g) Hospital Waste. ``Hospital waste'' means waste of any sort 
generated by nursing homes, hospitals, clinics for the treatment of 
disease, or like institutions or business. The term shall also 
include paper products, bedding, towels, containers, or cleaning 
implements that have been exposed to infectious, chemotherapeutic, 
pathological wastes, solid
    The definitions of the ordinance are in conflict with and 
therefore preempted by the corresponding definition in the Hazardous 
Material Regulations that designate, describe and classify hazardous 
materials as follows:
    ``Infectious Waste'' and ``Hospital Waste'' and Dangerous 
Waste'' are in conflict with 49 CFR Secs. 173.134(a)(4) and 173.197, 
describing Regulated Medical Waste. The definitions of the Ordinance 
also use the word ``Dangerous'' in conflict with HMR's use of the 
word at 49 CFR Secs. 171.14(b); 172.548 and 173.124(c).
    Section 02 of the Ordinance reads as follows:

Section 02: Routes

    Because the streets and roads of the Borough of Morrisville are 
generally narrow, winding, and in places congested, and not 
generally designed to accommodate heavy or constant truck traffic, 
the Borough Council may from time to time designate certain routes 
and/or particular streets for use by motor vehicle trucks hauling 
DANGEROUS WASTE. The following streets are the only streets in the 
Borough in Morrisville designated at this time for transportation by 
truck of DANGEROUS WASTE:

PA Route 1 (between the Delaware River Toll Bridge and the boundary 
line with the Township of Falls)
No such motor vehicle truck shall exceed the load limit for any such 
routes or road.

    This section of the Ordinance conflicts with the definition and 
use of the word ``Dangerous'' by HMR and restricts the route in such 
a manner as to make it impossible for SMI to enter or exit from its 
permitted transportation facility located at 1307 south Pennsylvania 
Avenue, Morrisville, PA 19067, without violating the Routing section 
of the Ordinance (see SMI Pennsylvania permit attached as Exhibit 
``B''). SMI has operated a permitted facility at the same address in 
Morrisville for over five years. The Ordinance does not comply with 
49 USC Sec. 5112 and violates the Surface Transportation Act of 
1982, 49 USC Sec. 31114, which guarantees trucks and trailers 
``reasonable access'' between the national network of roads and 
``terminals''. There is also an argument that the Ordinance, as 
written, would be a constructive taking of SMI's property without 
just compensation in violation of the Fifth Amendment.
    Section 03 and 04 read as follows:

Section 03: Speed Limits

    Trucks carrying DANGEROUS WASTE within the Borough of 
Morrisville are hereby limited to the designated speed limit on 
Route 1, and the posted speed limit on any other state or Borough 
road within the Borough of Morrisville that may eventually be 
approved for use by such trucks bearing DANGEROUS WASTE.

Section 04: Conditions of Operations

    All Trucks carrying DANGEROUS WASTE in the Borough of 
Morrisville shall operate with their headlights on at all times.
    Sections 03 and 04 are in conflict with HMR in the use of the 
word ``Dangerous'' as noted above.
    Section 05 of the Ordinance reads as follows:

SECTION 05: Miscellaneous Requirements

    (a) Each truck hauling DANGEROUS WASTE shall carry and have 
available for inspection the manifest required for transportation of 
such waste under the Resource Conservation and Recovery Act, or 
federal or state regulations implementing that Act. Such manifest 
shall be presented upon request of any Morrisville Borough police 
officer.
    (b) Each truck hauling DANGEROUS WASTE shall be subject to a 
safety inspection at any time.
    (c) Each driver of any such truck shall immediately report any 
accident or collision involving his truck to the Borough of 
Morrisville police.
    (d) No drive of a motor vehicle truck hauling DANGEROUS WASTE in 
the Borough of Morrisville shall be permitted to enter the Borough 
of Morrisville with such truck unless such drive, or the owner of 
consignor of such DANGEROUS WASTE, shall first have deposited with 
the Borough Secretary in indemnity bond with limits of not less that 
$50,000,000 per occurrence. Such bond shall be conditioned to pay 
all or part of such sum as damages or restitution to the Borough of 
Morrisville unless the responsible part shall reimburse any person, 
firm, partnership, trust or corporation, including the Borough 
itself, for any damages to person, property or natural resources 
resulting from the hauling of such DANGEROUS WASTE, or accidents or 
spills incident thereto, in the Borough of Morrisville.
    (e) Any truck or vehicle carrying DANGEROUS WASTE shall comply 
with all DEP and state regulations and laws pertaining thereto.

The Provisions of Section 05 of the Ordinance are in conflict with 
HMR's use of

[[Page 20262]]

the word ``Dangerous'' as noted above. In addition, the requirement 
in subsection (a) for haulers of ``Dangerous Waste'' to carry and 
have a manifest as required under the Resource Conservation and 
Recovery Act is in conflict with HMR's requirement to carry 
manifests as require by EPA's regulation (see 49 CFR 172.205(a)). 
Regulated medical waste as defined by the HMR is not a hazardous 
waste as defined in 40 CFR part 262. Therefore the Ordinance 
requires the preparation, execution and use of shipping documents in 
conflict with the HMR Requirements.
    Sections 06 and 07 of the Ordinance read as follows:

Section 06: Storage Prohibition

    Except as provided for by DEP regulations, the storage of 
DANGEROUS WASTE IN ONE PLACE FOR OVER 24 HOURS WITHIN THE borough of 
Morrisville is entirely prohibited. Storage in separate places 
within the Borough for a cumulative total of 48 hours or more is 
also prohibited.

Section 07: Presumption

    For purposes of this Ordinance, all Hospital Waste will be 
presumed to be DANGEROUS WASTE.
    Sections 06 and 07 are in conflict with HMR's use of the word 
Dangerous as noted above.
    Section 08 of the Ordinance reads as follows:

Section 08: Penalties

    Any person who operates a motor vehicle truck in violation of 
any of the provisions of this Ordinance shall, upon conviction, be 
fined not less than $100 nor more than $500 and may, in addition or 
alternatively, be sentenced to jail for a period or term not 
exceeding 90 days. Such sentences may not be suspended.
    The penalties provision of this Ordinance is meaningless, due to 
the fact that the definitions and requirements of the Ordinance are 
preempted by operation of 49 U.S.C. Sec. 5125 and the authorized 
regulations, 49 CFR Secs. 171-173.
    It is respectfully requested that the Provisions of Ordinance 
No. 902 of the Borough of Morrisville be preempted pursuant to 49 
U.S.C. Sec. 5125 and 49 CFR Sec. 201-213 because the provisions are: 
(1) in conflict with the designations, description and 
classification of hazardous materials as stated in the Hazardous 
Materials Regulations; (2) in conflict with the preparation, 
execution and use of shipping papers as stated in the Hazardous 
Materials Regulations; and (3) compliance with the routing 
requirement of the Ordinance is impossible for the SMI permitted 
facility located within Morrisville.
    Moreover, the enforcement of the Morrisville Ordinance with its 
redefined hazardous material classification scheme, additional 
requirement for shipping papers and impossible requirements would 
create an obstacle to the accomplishment and execution of the 
Hazardous Materials Transportation Uniform Safety Act and Hazardous 
Materials Regulations; Chlorine Institute  v. California Highway 
Patrol, 29 F. 3d 495, 498 (9th Cir. 1994).
    Please address all correspondence regarding this application to 
the undersigned attorney.

Certification: I certify that a copy of this application has been 
mailed this 30th day of December to Borough Manager, Borough of 
Morrisville, 35 Union Street, Morrisville, PA 19067, with 
instructions that the Borough of Morrisville may submit comments 
regarding this application to the Associate Administrator.
      Sincerely,
Med/Waste, Inc. and its Subsidiary Sanford Motors, Inc.

Ross M. Johnston,
Vice President for Legal Affairs.

cc: Craig Sanford, Sanford Motors, Inc.
Gary Lightman.

List of Exhibits

    A. Borough of Morrisville, PA, Ordinance No. 902, enacted 
September 20, 1999.
    B. Pennsylvania Department of Environmental Protection letter to 
Sanford Motors, Inc., dated September 29, 1999, and enclosed 
Infectious & Chemotheraputic Waste Transporter License.

Appendix B

March 1, 2000
Hazardous Materials Preemption Docket,
Associate Administrator for Hazardous Materials Safety, Research and 
Special Administration, U.S. Department of Transportation, 
Washington, DC.

Re: Preemption Application of Med/Waste, Inc. dated December 30, 
1999

    Dear Sir or Madam: I am the solicitor to the Borough of 
Morrisville, Bucks County, Pennsylvania whose ``Dangerous Waste 
Ordinance'' is being challenged in the above-captioned application. 
By this letter, I would like to set forth Morrisville Borough's 
position in asking that the preemption application be dismissed. I 
apologize for the delay in responding, but I did not receive a copy 
of Med/Waste's letter/application to you until on or after January 
27, 2000.
    Initially, I would like to point out that the U.S. Supreme Court 
has established a two-part test to determine if a federal law 
impliedly preempts a local government regulation: (1) Is compliance 
with both federal and local law impossible? and (2) Does the local 
law impede congressional objectives? See Ray v. Atlantic Richfield 
Co., 435 U.S. 151, 158 (1978).
    A federal statute may also expressly preempt a local ordinance 
where the act on its face, and by its explicit language, supersedes 
any inconsistent local regulation.
    The U.S. Supreme Court has also held that federal environmental 
statutes set minimum standards that must be met by a state or local 
government while permitting the local governments to enact more 
stringent regulations. In City of Philadelphia v. New Jersey, 437 
U.S. 617 (1978), the Court stated that Congress intended the 
Resource Conservation and Recovery Act of 1976 (RCRA) to allow 
state, regional and local authorities to control the collection and 
disposal of solid waste as one of their primary functions. The Court 
further found that the RCRA contained ``no clear and manifest 
purpose of Congress to preempt the entire field of interstate waste 
management.'' Id. at 620. Furthermore, in Ensco, Inc. vs. Dumas, 807 
F.2d 743 (8th Cir., 1986), the federal court held that states and 
local municipalities are permitted to establish waste management 
standards more stringent than those imposed by federal law and that 
only local regulations which totally prohibit storage, 
transportation or treatment should be preempted.
    The applicant in the instant case complains that the elements of 
the definitions of the terms ``Infectious Waste'', ``Hospital 
Waste'' and ``Dangerous Waste'' in the Morrisville ordinance are 
substantially different from those contained in 49 CFR 
Secs. 173.134(a)(4) and 173.197. A closer look reveals that this is 
simply not true. (Also, it must be pointed out that 49 CFR 
Sec. 173.197 deals exclusively with waste packaging and contains no 
definitions).

------------------------------------------------------------------------
           Morrisville ordinance                49 CFR 173.134(a)(4)
------------------------------------------------------------------------
1. ``any disease producing micro-organism   1. ``a viable micro-
 or material''.                              organism, or its toxin,
                                             that causes or may cause
                                             disease in humans or
                                             animals''
2. ``generated by hospitalized patients     2. ``an infectious substance
 [with] severe and communicable diseases''.  * * * generated in the
                                             diagnosis, treatment or
                                             immunization of human
                                             beings or animals''
3. ``[a]ll cultures and stocks of           3. ``infectious substances
 etiologic agents''.                         and etiologic agents''
4. ``[a]ll waste blood and blood            4. ``execreta, secreta,
 products'' ``[t]issues, organs, body        blood, blood components,
 parts, blood and body fluids''.             tissue, and tissue fluids''
5. ``wastes that were in contact with       5. ``waste or reusable
 pathogens in any type of laboratory         material * * * that
 work''.                                     contains an infectious
                                             substance''
6. ``waste biologicals (e.g., vaccines)''.  6. ``biological products''
------------------------------------------------------------------------

    The applicant's contention that Morrisville borough's use of the 
word ``Dangerous'' conflicts with 49 CFR Sec. 173.124(c) is 
similarly misguided. The federal regulation cited deals with 
``dangerous when wet material'' (emphasis added) and is inapposite 
to the Morrisville Borough ordinance.
    Applicant also claims that the Morrisville ordinance should be 
preempted because it requires drivers to carry written manifests 
when hauling ``Dangerous Wastes'' (as defined in the ordinance) 
while federal law only requires manifests if the cargo is 
``Hazardous Waste'' (as defined in 40 CFR Sec. 261.3). While the 
Morrisville ordinance may be different from the federal regulation, 
it certainly does not render the applicant's ability to comply with 
40 CFR Sec. 261.3 impossible, nor does it impede the objectives of 
the federal law.

[[Page 20263]]

    Finally, the applicant argues that the route restrictions 
contained in the Morrisville ordinance are violative of 49 U.S.C. 
Sec. 31114,prohibiting interference with access to the interstate 
highway system. I can say, with all assuredness, that no interstate 
highways traverse the Borough of Morrisville. However, the 
availability of U.S. Route 1 to the applicant has not been 
restricted. 49 U.S.C. Sec. 5112, cited by the applicant, appears to 
give the states the right to designate specific highway routes over 
which hazardous material may and may not be transported by motor 
vehicle. In Pennsylvania, this right is further delegated to 
counties and municipalities by section 304 of the Municipal Waste, 
Planning, Recycling and Waste Reduction Act, 53 Pa. C.S.A. 
Sec. 4000.304.
    The Morrisville ordinance provides standards for the 
transportation of hazardous waste within the borough which are 
different, though no less stringent than federal regulations. 49 
U.S.C.S. Sec. 5101 states that the purpose of the chapter is ``to 
provide adequate protection against the risks to life and property 
inherent in the transportation of hazardous material in commerce by 
improving the regulation and enforcement authority of the Secretary 
of Transportation.'' Morrisville Ordinance No. 902 espouses the same 
concern for the ``health, safety and general welfare of its 
residents.'' The ordinance in question breaks no new legislative 
ground regarding the transportation of hazardous waste but only 
serve to clarify and specify areas already addressed by federal law. 
Therefore, the two-part preemption test is not satisfied.
    49 U.S.C.S. Sec. 5125 clearly states the criteria by which a 
local hazardous waste ordinance will be evaluated for the purpose of 
determining whether it is preempted. Section 5125(a) states that a 
``requirement of a [local government] is preempted if complying with 
the requirement of the * * * political subdivision * * * and a 
requirement of this chapter * * * is not possible.'' Nothing in the 
Morrisville ordinance prevents any hauler of dangerous waste to 
comply with any of the provisions of the federal statutes or any of 
the rules that have been promulgated in furtherance of environmental 
legislation. Section 5125(b) states that no local ordinance may be 
substantively different from federal regulations. The definitions 
espoused by the Morrisville ordinance and the federal statutes 
address essentially the same types of materials.

      Sincerely,
Stephen L. Needles,
Stuckert and Yates.

cc: Ross M. Johnston,
Gary P. Lightman,
George Mount, Manager
[FR Doc. 00-9257 Filed 4-13-00; 8:45 am]
BILLING CODE 4910-60-M