[Federal Register Volume 65, Number 249 (Wednesday, December 27, 2000)]
[Notices]
[Pages 81950-81960]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32885]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

[Docket No. RSPA-98-3577 (PDA-18 (R))]


Preemption Determination No. PD-18(R); Broward County, Florida's 
Requirements on the Transportation of Certain Hazardous Materials to or 
From Points in the County

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

ACTION: 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) and American Trucking Associations (ATA).
    Local Laws Affected: Broward County, Florida Code of Ordinance No. 
1999-53 Secs. 27-352; 27-355(a)(1); 27-356(b)(4)d.1; 27-436; 27-439(b); 
27-439(e)(2); 27-439(e)(3); 27-439(e)(4); 27-439(f)(1); 27-439(g)(1) 
and 27-439(g)(2).
    Applicable Federal Requirements: Federal hazardous material 
transportation law, 49 U.S.C. 5101 et seq. and the Hazardous Materials 
Regulations (HMR), 49 CFR Parts 171-180.
    Modes Affected: Highway and rail.

SUMMARY: Federal hazardous material transportation law preempts Broward 
County, Florida's requirements pertaining to certain hazardous material 
definitions and all requirements that rely on those definitions, 
written notification of a hazardous material release, shipping paper 
retention for certain hazardous materials transporters, licensing fees 
for hazardous waste transporters and monthly transportation activity 
reporting. Federal hazardous material transportation law does not 
preempt Broward County, Florida's requirements pertaining to oral 
notification of a hazardous material release, packaging standards for 
hazardous waste transport vehicles, shipping paper retention for 
hazardous waste transporters, periodic vehicle inspection and vehicle 
marking.

FOR FURTHER INFORMATION CONTACT: Donna L. O'Berry, Office of the Chief 
Counsel, Research and Special Programs Administration, U.S. Department 
of Transportation, Washington, DC 20590-0001 (Tel. No. 202-366-6136).

I. Background

    On April 9, 1998, AWHMT applied for a determination that the 
Federal hazardous material transportation law preempts the following 
provisions of the Broward County Ordinance (Ordinance) 93-47, Chapter 
27:

--Ordinance 27-352 containing the definition of ``Hazardous 
Materials'',
--Ordinance 27-355(a)(1) containing release reporting requirements,
--Ordinance 27-356(b)(4) d.1 and Ordinance 27-356(d)(4) a.1 containing 
shipping paper retention requirements,
--Ordinance 27-356(d)(4) a.2 containing standards for waste-hauling 
vehicles,
--Ordinance 27-356(d)(4) a.3 containing periodic vehicle inspection 
requirements,
--Ordinance 27-356(d)(4) a.4 containing requirements that waste-hauling 
vehicles be marked with an identification tag issued by the County,
--Ordinance 27-356(d)(4) a.6 containing training requirements for 
drivers and other appropriate personnel,
--Ordinance 27-356(d)(4) a.7 containing fee requirements for a license 
to transport discarded hazardous material within the County,
--Ordinance 27-356(d)(4) b.1 containing requirements to request a 
modification from the County prior to utilizing a vehicle for 
transporting a type of waste that is not specified on the current 
license, and
--Ordinance 27-356(d)(4) c.1 containing reporting requirements for 
monthly activity reports to be submitted to the County.

    On August 6, 1998, RSPA published a public notice and invitation to 
comment on AWHMT's application (63 FR 42098). The notice set forth the 
text of AWHMT's application and asked that comments be filed with RSPA 
on or before September 21, 1998, and that rebuttal comments be filed on 
or before November 4, 1998. Comments were submitted by Nufarm, the 
Hazardous Materials Advisory Council (HMAC), Freehold Cartage, Inc., 
the Association of American Railroads (AAR), Mr. Tony Tweedale, and the 
Institute of Makers of Explosives (IME). AWHMT submitted rebuttal 
comments.
    On October 26, 1998, the County requested that RSPA stay its review 
of AWHMT's application for six to eight months. The County requested a 
stay because it was proposing changes to the Ordinance that would 
possibly resolve the preemption issues raised in AWHMT's application. 
In a December 23, 1998 letter, AWHMT opposed the County's request for a 
stay and requested that RSPA proceed to issue a ruling in the matter. 
On March 15, 1999, RSPA granted the County's request for a stay. The 
stay was effective until July 1, 1999.
    On September 28, 1999, the Broward County Commissioners adopted 
Ordinance No. 1999-53 (the revised Ordinance), which amended Chapter 
27. In the previous version of the Ordinance, all of the regulations at 
issue in this proceeding were contained in Chapter 27, Article XII, 
``Hazardous Material.'' In the revised Ordinance, the County retained a 
modified version of Article XII and created a new article, Chapter 27, 
Article XVII, ``Waste Transporters.'' Article XVII applies solely to 
waste transporters. Some of the regulations originally challenged in 
this proceeding were modified and moved to Article XVII, some were 
deleted from the revised Ordinance, and others remained where they were 
in the previous Ordinance.
    On November 2, 1999, RSPA published a public notice reopening the 
comment period and invited interested parties to comment on the 
County's revised Ordinance (64 FR 59231). Comments were due by December 
17, 1999, and rebuttal comments were due by January 31, 2000. RSPA 
limited additional comments to a discussion of

[[Page 81951]]

the revised Ordinance. Because it appeared that the County had 
substantially modified the Ordinance, RSPA requested that AWHMT 
supplement its application to reflect the revisions to the Ordinance. 
ATA, on behalf of AWHMT, submitted the revised application (herein 
referred to as ATA/AWHMT). In addition, IME and AAR submitted comments. 
On March 22, 2000, the County submitted its comments to the revised 
Ordinance. On May 5, 2000, ATA/AWHMT submitted rebuttal comments to the 
County's comments.
    As a result of the County's changes in the revised Ordinance, ATA/
AWHMT withdrew its challenge to four of the County's requirements. ATA/
AWHMT continues to challenge the County's definitions of certain 
hazardous materials and the County's requirements pertaining to release 
reporting, standards for packaging, fees, monthly reporting, and 
vehicle inspection. In addition, AAR continues to challenge the 
County's shipping paper and vehicle marking requirements. This decision 
addresses only the challenges to the revised Ordinance.

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 Section 102, 88 Stat. 2156, amended by Pub. 
L. 103-272 and 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 materials transportation law is now found at 49 U.S.C. 5101 
et seq.
    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). A Federal Court of 
Appeals affirmed that uniformity was the ``linchpin'' in the design of 
the HMTA, including the 1990 amendments that expanded the preemption 
provisions. 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:
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    \1\ While advisory in nature, these 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, 44 FR 75566, 76657 (Dec. 20, 1979).

    (1) Complying with a requirement of the State, political 
subdivision or tribe and a requirement of [Federal hazardous 
materials transportation law] or a regulation prescribed under 
[Federal hazardous materials transportation law] is not possible; or
    (2) The requirement of the State, political subdivision, or 
Indian tribe, as applied or enforced, is an obstacle to 
accomplishing and carrying out [Federal hazardous materials 
transportation law] or a regulation prescribed under [Federal 
hazardous materials transportation law].

    In the 1990 amendments to the HMTA, Congress also added preemption 
provisions on the following subject areas:
    (A) the designation, description, and classification of hazardous 
material.
    (B) the packing, repacking, handling, labeling, marking, and 
placarding of hazardous material.
    (C) the preparation, execution, and use of shipping documents 
related to hazardous material and requirements related to the number, 
contents, and placement of those documents.
    (D) the written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material.
    (E) the design, manufacturing, fabricating, marking, maintenance, 
reconditioning, repairing, or testing, of a package or a container 
represented, marked, certified, or sold as qualified for use in 
transporting hazardous material.
    49 U.S.C. 5125(b)(1). Unless it is authorized by another Federal 
law or a DOT waiver of preemption, a non-Federal requirement on any of 
these subjects 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). REPA 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 authority to issue preemption 
determinations that concern highway routing to the Federal Motor 
Carrier Safety Administration (FMSCA) and those concerning all other 
hazardous materials transportation issues to RSPA. 49 CFR 1.53(b) and 
1.73(d)(2). 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. 49 
U.S.C. 5125(d)(1). Following the receipt and consideration of written 
comments, RSPA publishes its determination in the Federal Register. See 
49 CFR 107.209(d). A 20-day period 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).
    RSPA's authority to issue preemption determinations does not 
provide a means for review or appeal of State enforcement proceedings, 
nor does RSPA consider any of the State's procedural requirements 
applied in an enforcement proceeding. The filing of an application for 
a preemption determination does not operate to stay a State enforcement 
proceeding.
    Preemption determinations do not address issues of preemption 
arising

[[Page 81952]]

under the Commerce Clause of the Constitution or under statutes other 
than the Federal hazardous materials transportation law unless it is 
necessary to do so in order to determine whether a requirement is 
authorized by another Federal law. A State, local or Indian tribe 
requirement is not authorized by another Federal law merely because it 
is not preempted by another Federal statute. Colorado Pub. Util. Comm'n 
v. Harmon, above, 951 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. 
13132, entitled ``Federalism'' (64 FR 43255, Aug. 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 
that RSPA has implemented through its regulations.
    One commenter to this proceeding urges DOT to ``interpret its 
discretionary or implied preemption authorities narrowly, specifically 
its obstacle criteria.'' He states that DOT ``should only allow 
[preemption] if it believes it is specifically statutorily required to, 
or if there is an evident obstacle to the purpose of a federal HMT 
regulatory requirement.'' The commenter contends that ``[i]f the 
question is ambiguous but can be resolved by subdividing, that is 
better than preempting the entire issue.'' This, he argues, is the 
intent of Congress and the Federalism Executive Order.
    RSPA must consider ATA/AWHMT's application under the express 
preemption standards of 49 U.S.C. 5125. RSPA will analyze each issue 
raised in this proceeding to determine if any of the non-Federal 
requirements meet the preemption criteria in 49 U.S.C. 5125. If 
preemption of a non-Federal regulation is required, RSPA, to the extent 
possible, will only preempt that portion of the non-Federal regulation 
that conflicts with the Federal regulation.

III. Comments and Decision

A. Definition of a Hazardous Material

1. County Definitions
    The County, in Secs. 27-352 and 27-436 of the revised Ordinance, 
defines the challenged definitions as follows:

    Biomedical waste--also referred to as ``biohazardous waste,'' 
has the meaning given it in Chapter 27, Article VI, Section 214, of 
the Code, as Amended.

Section 27-352. [The definition in 27-214 is substantially the same as 
the definition for biomedical waste contained in 27-436, below.]

    Biomedical waste--means any solid or liquid waste which may 
present a threat of infection to humans. Examples include non-liquid 
tissue and body parts from humans and other primates; laboratory and 
veterinary waste which may contain human disease-causing agents; 
discarded sharps; and blood, blood products and body fluids from 
humans and other primates. The following are also included;
    (a) Used, absorbent materials saturated with blood, body fluids, 
or excretions or secretions contaminated with blood and absorbent 
materials saturated with blood or blood products that have dried. 
Absorbent material includes items such as bandages, gauzes and 
sponges.
    (b) Non-absorbent disposable devices that have been contaminated 
with blood, body fluids or blood contaminated secretions or 
excretions and have not been sterilized or disinfected by an 
approved method.
    (c) Other contaminated solid waste materials which represent a 
significant risk of infection because they are generated in medical 
facilities which care for persons suffering from diseases requiring 
Strict Isolation Criteria and used by the U.S. Department of Health 
and Human Services, Centers for Disease Control, CDC Guideline for 
Isolation Precautions in Hospitals, July/August 1983.

Section 27-436.

    Combustible liquid--is defined as a liquid having a flash point 
at or above one hundred (100) degrees Fahrenheit (37.8 degrees 
Celsius).

Section 27-352 (as posted on the County's Internet site on June 1, 
2000).

    Discarded hazardous material--means any hazardous material which 
has served its original intended purpose and has been or is in the 
process of being rejected, disposed of or recycled, or hazardous 
material stored or accumulated in order to be eventually rejected, 
disposed of or recycled. Such material may include, but is not 
limited to, hazardous waste, used oil, used oil filters, waste 
radiator fluid, industrial wastewater, petroleum contaminated media 
and water, contaminated soils, waste fuel, leachate, or waste 
photographic fixer.

Section 27-352 and Section 37-436 (with one minor variation that does 
not affect the definition).

    Flammable liquid--is a liquid having a flash point below one 
hundred (100) degrees Fahrenheit (37.8 degrees Celsius) and having a 
vapor pressure not exceeding forty (40) pounds per square inch 
(absolute) (2,068 mm Hg) at one hundred (100) degrees Fahrenheit 
(37.8 degrees Celsius).

Section 27-352 (as posted on the County's Internet site on June 1, 
2000).

    Hazardous Material--is defined as any substance or mixture of 
substances which meets any one (1) of the following criteria:
    (1) Hazardous waste as defined in this article.\2\
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    \2\ The County defines Hazardous Waste as ``any substance 
defined or identified as a hazardous waste in 40 CFR parts 260-265 
and appendices, promulgated pursuant to the Resource Conservation 
and Recovery Act, 42 U.S.C. Sec. 6901, et seq., as amended, and rule 
730, F.A.C., as amended.'' 27-352.
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    (2) Any substance listed in article XIII, appendix A of this 
chapter.\3\
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    \3\ Article XII regulates Wellfield Protection. Appendix A to 
Article XIII contains a list of regulated substances, an indication 
whether the particular substance is or is not an EPA toxic 
pollutant, and EPA signal word for the substance, and the amount, in 
gallons and pounds, required for a reportable spill.
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    (3) any petroleum product or any material or substance 
containing discarded petroleum products.
    (4) Any substance identified as hazardous in the most current 
version of the following regulations:
    a. Comprehensive Environmental Response Compensation, and 
Liability Act (42 U.S.C. Sec. 9601, et seq.).
    b. Emergency Planning and Community Right-to-Know Act (42 U.S.C. 
Sec. 11001, et seq.).
    c. Hazardous Material Transportation Act (49 U.S.C. Sec. 1801, 
et seq.).
    d. Federal Insecticide, Fungicide, and rodenticide Act (7 U.S.C. 
Sec. 136(a)-(y)).

Section 27-352 (as posted on the County's Internet site on June 1, 
2000).

    Sludge--means a solid waste pollution control residual which is 
generated by any industrial or domestic wastewater treatment plant, 
water supply treatment plant, air pollution control facility, septic 
tank, grease trap, portable toilet or related operation, or any 
other such waste having similar characteristics. Sludge may be 
solid, liquid, or semisolid waste but does not include the treated 
effluent from a wastewater treatment plant.

Section 27-436.
2. Comments
    Several commenters argue that some of the County's definitions are 
not substantively the same as the definitions in the HMR. Specifically, 
ATA/AWHMT points out that the County's definition of ``hazardous 
material'' is broader than ``hazardous material'' as defined in the 
HMR. In addition, ATA/AWHMT contends that the County's definitions for 
``combustible liquid,'' ``flammable liquid'' and ``biomedical waste'' 
are not substantively the same as the HMR definitions of these 
materials. AAR notes that the County's definitions of ``biomedical 
waste'' and ``discarded hazardous materials'' also differ from the HMR. 
In addition, AAR points out that the County's definition of ``sludge'' 
does not have a counterpart in the HMR. Nufarm argues that the County's 
inclusion in its definition of ``hazardous material'' of (1) any 
petroleum product

[[Page 81953]]

or any material or substance containing discarded petroleum products 
and (2) any substance identified as hazardous in the most current 
version of the Federal Insecticide, Fungicide and rodenticide Act are 
two examples of how the County's definition is too broad and, 
therefore, not substantively the same as the HMR definition.
    The County explains that the definitions in Article XVII, Sec. 27-
436, were modified to recognize other federal, state, municipal and 
county agencies that have adopted rules regulating waste transporters. 
In addition, the County points out that the transportation of hazardous 
material in its virgin state, as product rather than waste, is not 
regulated under Article XVII. In article XII, Sec. 27-352, the County 
modified its definition of a hazardous material by removing one of its 
five criteria. The County states that this revised definition is now 
consistent with the Federal regulations.
3. Decision
    Federal hazardous material transportation law preempts a non-
Federal requirement on the ``designation, description, and 
classification of hazardous material'' that is not ``substantively the 
same as'' the HMR. 49 U.S.C. 5125(b)(1)(A). RSPA agrees that the six 
definitions of concern to the industry commenters are not 
``substantively the same as'' their counterparts in the HMR or do not 
have counterparts in the HMR.
    Specifically:
      The HMR definition of ``regulated medical waste'' at 49 
CFR 173.134 appears to be most comparable to the County's definition of 
``biomedical waste''. However, the County's definition is broader in 
scope than the HMR definition.
     The HMR define ``combustible liquid'' as ``any liquid that 
does not meet the definition of any other hazard class specified in 
[the HMR] and has a flash point above 60.5 deg.C (141 deg.F) and below 
93 deg.C (200 deg.F). 49 CFR 173.120(b). Under the County's definition, 
a combustible liquid must have a flash point at or above 37.8 deg.C 
(1090 deg.F).
     The HMR define ``flammable liquid'' as ``having a flash 
point of not more than 60.5 deg.C (141 deg.F), or any material in a 
liquid phase with a flash point at or above 37.8 deg.C (100 deg.F) that 
is intentionally heated and offered for transportation or transported 
at or above its flash point in a bulk packaging,'' with certain 
exceptions. 49 CFR 173.120(a). Under the County's definition, a 
flammable liquid must have a flash point below 37.8 deg.C (100 deg.F) 
and a vapor pressure that does not exceed 40 psi at 37.8 deg.C.
     The HMR define ``hazardous material'' as

a substance or material, which has been determined by the Secretary 
of Transportation to be capable of posing an unreasonable risk to 
health, safety, and property when transported in commerce, and which 
has been so designated. The term includes hazardous substances, 
hazardous wastes, marine pollutants, and elevated temperature 
materials as defined in this section, materials designated as 
hazardous under the provisions of Sec. 172.101 of [the HMR], and 
materials that meet the defining criteria for hazard classes and 
divisions in part 173 of [the HMR]. 49 CFR 171.8.

    As previously mentioned, the County's definition of hazardous 
material includes substances or mixtures of substances that are 
hazardous wastes (as defined by the County), substances listed by the 
County, petroleum products, or substances ``identified as hazardous'' 
in certain listed Federal ``regulations,'' which actually are Federal 
statutes. The references to the ``Hazardous Materials Transportation 
Act (49 U.S.C. Sec. 1801, et seq.)'' is over five years out of date and 
should have been the ``Federal hazardous materials transportation law 
(49 U.S.C. Sec. 5101 et seq.).''
     Discarded hazardous material and sludge do not have 
counterparts in the HMR.
    The Six County definitions challenged by AWHTA/ATA are not 
``substantively the same as'' the Federal definitions. The differences 
between the County's definitions and the HMR definitions are not de 
minimis, nor are they mere editorial changes. However, in order to be 
preempted under the Federal hazardous materials transportation law, the 
definitions as applied and enforced must relate to the areas regulated 
by DOT, as set forth above.
    Article XII regulates the ``generation, use, storage, handling, 
processing, manufacturing, and disposal of hazardous materials.'' 
Revised Ordinance 27-351. The Department of Planning and Environmental 
Protection (DPEP) is authorized to license, evaluate, review and 
administer all hazardous materials activities * * * performed in 
Broward County. Id. Article XVII regulates the transportation of 
discarded hazardous material, sludge, and biomedical waste and applies 
to ``all persons conducting activities within geographic boundaries of 
Broward County, who transport discarded hazardous material, sludge, or 
biomedical waste to, from, and within Broward County.'' Revised 
Ordinance 27-435.
    These two sections indicate that the County uses the challenged 
definitions in defining the applicability of its regulation of 
transportation in commerce. Therefore, the County's definitions of 
biomedical waste, combustible liquid, discarded hazardous materials, 
flammable liquid, hazardous materials and sludge are preempted under 
the ``substantively the same as'' test to the extent that they relate 
to transportation in commerce. In addition, all County hazardous 
materials requirements that apply these six definitions are also 
preempted.\4\
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    \4\ In discussing these requirements later in this document, 
RSPA ignores this definitional problem and assumes that the County's 
definitions pertaining to hazardous materials and hazardous 
materials transportation in commerce would be made consistent with 
the HMR.
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    This holding is consistent with prior RSPA decisions and with case 
law. RSPA has consistently held that state and local hazard class and 
hazardous material definitions differing from those in the HMR and used 
to regulate in areas regulated by DOT are preempted because the Federal 
role is exclusive.\5\ In addition, RSPA has previously determined that 
non-Federal definitions

[[Page 81954]]

and classifications that result in regulating the transportation, 
including loading, unloading or storage incidental thereto, of more, 
fewer or different hazardous materials than the HMR, are obstacles to 
uniformity in transportation regulation and thus are preempted.\6\ 
Recently, a Federal district court found that states are precluded from 
designating, describing or classifying hazardous materials in a manner 
that differs substantively from the Federal designation, description or 
classification. Union Pacific R.R. v. California Publ. Util. Comm'n, 
No. C-97-3660-THE (N.D. Cal. June 18, 1998), vacated in part on other 
grounds, (N.D. Cal. Dec. 14, 1998).
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    \5\ See generally, IR-18, Prince George's County, MD; Code 
Section Governing Transportation of Radioactive Materials, 52 FR 200 
(Jan. 2, 1987); IR-18(A) Prince George's County, MD; Code Section 
Governing Transportation of Radioactive Materials, Decision on 
Appeal, 53 FR 28850 (July 29, 1988); IR-19, Nevada Public Service 
Commission Regulations Governing Transportation of Hazardous 
Materials, 52 FR 24404 (June 30, 1987); IR-19(A), Nevada Public 
Service Commission Regulations Governing Transportation of Hazardous 
Materials, Decision on Appeal, 53 FR 11600 (April 7, 1988); IR-20, 
Triborough Bridge and Tunnel Authority Regulations Governing 
Transportation of Radioactive Materials and Explosives, 52 FR 24396 
(June 30, 1987), correction, 52 FR 29468 (Aug. 7, 1987); IR-21, 
Connecticut Statute and Regulations Governing Transportation of 
Radioactive Materials, 53 FR 37072 (Oct. 2, 1987), Decision on 
Appeal, 53 FR 46735 (Nov. 18, 1988); IR-26, California Department of 
Motor Vehicles Regulations on Training Requirements for Operators on 
Vehicles Carrying Hazardous Materials, 54 FR 16314 (Apr. 21, 1989), 
correction, 54 FR 21526 (May 19, 1989); IR-28, City of San Jose, 
California; Restrictions on Storage of Hazardous Materials, 55 FR 
8884, (Mar. 8, 1990), appeal dismissed as moot, 57 FR 41165 (Sept. 
9, 1992); IR-29, State of Maine Statutes and Regulations on 
Transportation of Hazardous Materials, 55 FR 9304 (Mar. 12, 1990); 
IR-30, Oakland, California; Nuclear Free Zone Act, 55 FR 9676 (Mar. 
14, 1990), correction, 55 FR 12111 (Mar. 30, 1990); IR-31, State of 
Louisiana Statutes and Regulations on Hazardous Materials 
Transportation, 55 FR 25572 (June 21, 1990), appeal dismissed as 
moot, 57 FR 41165 (Sept. 9, 1992); IR-32, City of Montevallo, 
Alabama Ordinance on Hazardous Waste Transportation, 55 FR 36736 
(Sept. 6, 1990), appeal dismissed as moot, 57 FR 41165 (Sept. 9, 
1992). See also, Missouri Pacific R.R. Co. v. Railroad Commission of 
Texas, 671 F. Supp. 466 (W.D. Tex. 1987), aff'd on other grounds, 
850 F.2d 264 (5th Cir. 1988), cert. denied, 109 S. Ct. 794 (1989).
    \6\ IR-5, City of New York Administrative Code Governing 
Definitions of Certain Hazardous Materials, 47 FR 51991 (Nov. 18, 
1982); IR-6, City of Covington Ordinance Governing Transportation of 
Hazardous Materials by Rail, Barge, and Highway Within the City, 48 
FR 760 (Jan. 6, 1983); IR-28 (San Jose), above; IR-29 (Maine), 
above; IR-31 (Louisiana), above; and (IR-32 (Montevallo), above.
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B. Release-reporting Requirements

1. County Requirements
    The revised Ordinance contains two release-reporting sections, 
Sec. 27-355(a)(1) in Article XII and Sec. 27-439(f)(1) in Article XVII.
    Section 27-355(a)(1) provides:

[i]n the event of an unauthorized release of a hazardous material to 
the environment in an amount that is above the reportable quantity 
threshold * * * the responsible party shall * * * immediately report 
such incidents by telephone to DPEP. Written notification of verbal 
reports to DPEP must be provided within seven (7) calendar days. 
Written notification shall include at a minimum the location of the 
release, a brief description of the incident that caused the release 
or discovery, a brief description of the action taken to stabilize 
the situation, and any laboratory analysis, if available.

    Section 27-439(f)(1) provides:

[t]he owner or operator shall report any unintentional releases 
during transportation to the local emergency operator (911) 
immediately upon learning of the release in accordance with federal 
and state regulations. All other releases shall be reported to the 
DPEP in accordance with the requirements set forth in Sec. 27-
355(a)(1) of the Code, as amended.
2. Comments
    ATA/AWHMT and IME challenge the County's written release-
notification requirement. They argue that the County's requirement for 
a ``responsible party'' to provide written notification of an 
unauthorized release that is above the reportable quantity threshold 
should be preempted because it is not ``substantively the same as'' 
DOT's notification requirements.
    ATA/AWHMT and AAR challenge the County's telephonic release 
notification requirement. While ATA/AWHMT does not challenge the 
County's 911 telephonic notification requirement, it does object to the 
requirement to telephonically notify a DPEP operator in the absence of 
a 911 emergency telephone number. ATA/AWHMT argues that if this 
practice is permitted and other local jurisdictions adopt this policy, 
it would result in transporters being required to maintain and 
continuously update a directory of emergency numbers for local 
jurisdictions. ATA/AWHMT maintains that it would take years to compile 
such a directory and the task would create a tremendous burden on the 
transporter.
    AAR contends that the County's requirement to immediately notify a 
911 operator of a hazardous material release is not the same as DOT's 
immediate notification requirement. AAR states that 911 notification 
satisfies the Environmental Protection Agency's (EPA) requirements but 
that the HMR require immediate notification to DOT of a release of a 
hazardous material that is not an EPA hazardous substance. Therefore, 
AAR argues that the 911 telephonic notification requirement should be 
preempted under the ``substantively the same as'' test.
    The County points out that it no longer requires all transporters 
to notify DPEP of transportation-related releases. Section 27-439(f)(1) 
requires that the owner/operator of a motor vehicle carrying hazardous 
waste immediately notify the ``911-operator or in the absence of a 911-
emergency telephone number * * * the * * * DPEP operator.'' The County 
states that releases of all other materials that do not involve 
transportation are regulated by Article XII. The commenters do not 
discuss how the County regulations are applied and enforced.
3. Decision
    RSPA has consistently held that Federal hazardous material 
transportation law generally preempts only non-Federal regulations 
pertaining to written reporting and not those pertaining to oral 
reporting. This decision will address each type of release reporting 
separately.
    a. Written release reporting.
    Federal hazardous material transportation law preempts a non-
Federal requirement on the ``written notification, recording, and 
reporting of the unintentional release in transportation of hazardous 
material'' that is not ``substantively the same as'' the HMR. 49 U.S.C. 
5125(b)(1)(D). The Federal written incident-reporting requirements are 
in 49 CFR 171.16. Section 171.16 requires a carrier that transports 
hazardous material to submit to RSPA, within 30 days from the date of 
discovery, a written report on certain incidents that occur during the 
course of transportation. Such incidents include the ``unintentional 
release of hazardous materials from a package (including a tank) or 
[when] any quantity of hazardous waste has been discharged during 
transportation.'' The report must be submitted directly to RSPA on DOT 
Form F 5800.1. 49 CFR 171.16(a).\7\
---------------------------------------------------------------------------

    \7\ RSPA has initiated a rulemaking to propose changes to the 
incident reporting requirements and to DOT Form F 5800.1. See RSPA's 
advance notice of proposed rulemaking, 64 FR 13943 (March 23, 1999).
---------------------------------------------------------------------------

    As previously mentioned, Sec. 27-355(a)(1) requires a ``responsible 
party'' to provide written notification of verbal reports to the County 
of hazardous material releases. The written reports must be submitted 
within seven calendar days and must contain specified information about 
the release and any laboratory analysis that is available. The portion 
of Section 27-355(a)(1) pertaining to written notification of a release 
is not substantively the same as 49 CFR 171.16. The County states in 
its comments that Article XII regulates releases that do not involve 
transportation. However, that is not apparent from the face of the 
revised Ordinance, Article XII could be construed as applying to 
hazardous materials transportation or storage incidental to 
transportation.
    Therefore, RSPA finds that Sec. 27-355(a)(1), as it pertains to 
written notification, is preempted, but only to the extent that it 
relates to transportation in commerce, including storage incidental to 
transportation in commerce.
    This determination is consistent with previous RSPA decisions 
involving non-Federal requirements for submission of written incident 
reports. In Preemption Determination (PD)-21, RSPA held that a state 
may require a carrier to file a written incident report with RSPA under 
the same conditions specified in 49 CFR 171.16 but that it may not 
require the carrier to file a copy of the Federal form or a separate 
incident report directly with the State. Tennessee Hazardous Waste 
Transporter Fee and Reporting Requirements, 64 FR 54474, 54481 (Oct. 6, 
1999), judicial review pending, Tennessee v. U.S. Dept. of 
Transportation, Civil Action No. 3-99cv-1126 (M.D. Tenn.).
    In IR-2, RSPA determined that a state requirement for immediate 
notification of a hazardous materials incident to

[[Page 81955]]

local emergency responders was not preempted but that the follow-up 
written report was. 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 * * * 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 files 
with [DOT] are available to the public.

64 FR at 54480, quoting, IR-2 (Rhode Island), above, 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, RSPA stated that a State or locality could not require a 
carrier to directly submit a copy of DOT Form F 5800.1. RSPA said:

Subsequent written reports required within 15 days by DOT are not 
necessary to local emergency response. The 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 under 49 CFR 171.15 may not be 
required by [the City's ordinance].

64 FR at 54480, quoting from, IR-3, City of Boston Rules Governing 
Transportation of Certain Hazardous Materials by Highway Within the 
City, 46 FR 18918, 18924 (Mar. 26, 1981). On appeal, RSPA reaffirmed 
its position that Boston's requirement for a carrier to submit written 
reports was redundant, unnecessary, and inconsistent with the HMTA and 
HMR. 64 FR at 54480, citing to, IR-3(A), 47 FR 18457, 18462 (Apr. 28, 
1982).
    b. Oral release reporting.
    The legislative history of the 1990 amendments to the HMTA 
discloses that Congress did not intend 49 U.S.C. 5125 (b)(1)(D) to 
cover oral incident reporting. In a report, the House Committee on 
Energy and Commerce stated that:

    Written notification, recording, and reporting of the 
unintentional release in transportation of hazardous materials.--The 
Committee believes 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. The oral notification and reporting of unintentional 
releases has specifically been excluded from this paragraph in order 
to permit State and local jurisdictions to develop the full range of 
possible alternatives in emergency response capabilities (such as 
requiring carriers to telephone local emergency responders).

H.R. Report No. 101-444, Par I, at 34-35 (1990) (emphasis added).
    In following Congress' intent, RSPA and the courts have 
consistently held that requirements for immediate, oral accident/
incident reports for emergency response purposes generally are 
consistent with Federal law and regulations and, thus, not preempted. 
See, IR-2 (Rhode Island), above; IR-3 (Boston), above; National Tank 
Truck Carriers, Inc. v. Burke, above; Union Pacific R.R. v. California 
Public Util. Comm'n, above.\8\ In IR-2 (Rhode Island), RSPA sustained a 
state requirement to immediately notify the state police and two 
specific state agencies of any accident. RSPA determined that 
``[although the Federal Government can regulate in order to avert 
situations where emergency response is necessary, and can aid in local 
and State planning and preparation, when an accident does occur, 
response is, of necessity, a local responsibility.'' 44 FR at 75568. 
RSPA further concluded that ``a requirement for immediate notification 
in certain situations furthers the State's activity in protecting 
persons and property through emergency response measures.'' Id. at 
75572.
---------------------------------------------------------------------------

    \8\ See also, IR-28 (San Jose), above; IR-31 (Louisiana), above; 
and IR-32 (Montevallo), above.
---------------------------------------------------------------------------

    In IR-3 (Boston), RSPA sustained a city requirement for carriers to 
immediately notify the city of a hazardous material incident. RSPA 
stated:

    Any immediate reporting requirement, applied differentially to 
carriers of hazardous materials, that is necessary to support an 
emergency response effort is not inconsistent with the HMTA. Thus 
[Boston's ordinance] in requiring immediate reports for incidents 
that must immediately be reported to DOT under 49 CFR 171.15 is not 
inconsistent with the HMTA.

    46 FR at 18924. RSPA affirmed its position on appeal by holding 
that ``[f]or an incident that requires the City to undertake emergency 
response, we reiterate our agreement that the City must be able to 
require the carrier to notify it immediately. If the City wishes to 
conduct a thorough investigation of the events at the scene, it may do 
so then.'' 47 FR 18924.
    Federal telephonic reporting requirements (49 CFR 171.15) are not 
designed to elicit immediate on-the-scene emergency response, but 
rather to assist the Federal Government in investigating and collecting 
data on such incidents. In Union Pacific R.R. v. California Public 
Util. Comm'n, above, at 7, the court held that ``the very substance of 
the federal regulations reflect that they are not intended to address 
the area of emergency `first response' but are designed to facilitate 
the government's ability to promptly investigate and compile data on 
major incidents involving hazardous materials.''
    For the reasons discussed above, the portion of the County's 
requirements in Secs. 27-355(a)(1) and 27-439(f)(1) pertaining to 
immediate notification to a 911 operator of a hazardous materials 
release are not preempted. However, 911 notification does not eliminate 
the obligation to comply with Federal accident/incident notification 
requirements.
    In addition, Section 27-439(f)(1) contains a requirement that 
``[a]ll other releases shall be reported to the DPEP in accordance with 
the requirements set forth in Section 27-355(a)(1) of the Code, as 
amended.'' RSPA has determined that the written reporting requirement 
in Sec. 27-355(a)(1), as it relates to the transportation of hazardous 
materials in commerce, is preempted. Therefore, the requirement in 
Sec. 27-439(f)(1) to report in accordance with written reporting 
requirement in Sec. 27-355(a)(1) is also preempted to the extent that 
it relates to transportation of hazardous materials in commerce, 
including loading, unloading and storage incidental to transportation.
    In its comment, that County indicates that Sec. 27-439(f)(1) 
contains a provision for reporting directly to DPEP in the absence of 
911 emergency telephone number. ATA/AWHMT objects to this provision 
because of the potential burden it would create for a transporter to 
compile a list of secondary emergency response numbers for the various 
jurisdiction in which it operates. It is not clear to RSPA what 
regulation the parties are referring to. The provision for notifying a 
DPEP operator in the absence of a 911 operator is not in the current 
version of the revised Ordinance, which was submitted by the County to 
RSPA on October 12, 1999. In addition, RSPA consulted the version of 
Sec. 27-439(f)(1) currently listed on the County's Internet site and 
did not find any language that was different from the County's October 
1999 version of the revised Ordinance. Because RSPA does not have any 
evidence that this regulation is in effect, RSPA will not address the 
issue.

[[Page 81956]]

C. Shipping paper requirements.

1. County requirement.
    The revised Ordinance has two sections that address recordkeeping, 
including shipping paper retention requirements, Sec. 27-356(b)(4)d.1 
in Article XII and Sec. 27-439(g)(1) in Article XVII. Section 27-356, 
in general, sets forth the requirements for obtaining and operating 
under certain types of licenses and approvals. This section applies to 
(1) hazardous materials facility licenses, (2) sludge, discarded 
hazardous material and biomedical waste transfer station licenses, (3) 
environmental assessment and remediation licenses, and (4) special 
licenses. Section 27-356(b)(4)d.1 sets forth the specific recordkeeping 
and reporting requirements for hazardous material facilities that are 
subject to the licensing requirements. Section 27-356(b)(4)d.1 provides 
that:

    [r]eports and records, including hazardous waste manifests, 
bills of lading, or other equivalent manifesting for all hazardous 
material disposal, shall be maintained on-site for five (5) years, 
and shall be available upon request for inspection by DPEP. The 
records, at a minimum, must identify the facility name and address, 
type and quantity of waste, the shipping date of the waste, and the 
hauler's name and address.

    Section 27-439(g) contains the requirements and standards for 
obtaining and operating under a waste transporter license. Section 27-
439(g)(1) requires that the owner or operator shall:

[m]aintain reports, and records, including waste manifest, bills of 
lading, or other equivalent manifesting for all discarded hazardous 
material, sludge, and biomedical waste disposal. Reports and records 
shall be maintained for three (3) years, and shall be available upon 
request for inspection by DPEP. The records, at a minimum must 
identify the generator's name and address, type and quantity of 
waste, the shipping date of the waste.

2. Comments
    AAR argues that the County's recordkeeping requirements in Sec. 27-
439(g)(1) should be preempted as they apply to rail transporters of 
hazardous waste. AAR states that neither RSPA nor the EPA imposes any 
recordkeeping requirements on intermediate rail transporters of 
hazardous waste. In addition, AAR states that the County has not 
addressed AWHMT's initial objections to Sec. 27-356(b)(4)d.1. 
Initially, AWHMT, HMAC and Freehold Cartage, Inc. objected to the 
County's five-year requirement for waste manifest retention. These 
organizations did not reassert their objections to the revised 
Ordinance.
3. Decision
    Federal hazardous material transportation law preempts a non-
Federal requirement on ``the preparation, execution, and use of 
shipping documents related to hazardous material and requirements 
related to the number, contents, and placement of those documents'' 
that is not ``substantively the same as'' the HMR. 49 U.S.C. 
5125(b)(1)(C). RSPA has determined that a hazardous waste manifest is a 
shipping document covered by 49 U.S.C. 5125(b)(1)(C). PD-2(R), Illinois 
Environmental Protection Agency's Uniform Hazardous Waste Manifest, 58 
FR 11176 (Feb. 23, 1993). In addition, 49 CFR 172.205(h) provides that 
``[a] hazardous waste manifest required by 40 CFR part 262, containing 
all of the information required by this subpart, may be used as the 
shipping paper required by this subpart.'' Therefore, any non-Federal 
requirements pertaining to hazardous waste manifests that are not 
``substantively the same'' as the Federal requirements are preempted.
    The Federal requirements for hazardous waste manifests are at 49 
CFR Sec. 172.205. This section requires, among other things, that a 
copy of the manifest * * * must be ``[r]etained by the shipper 
(generator) and by the initial and each subsequent carrier for three 
years from the date the waste was accepted by the initial carrier.'' 49 
CFR Sec. 172.205(e)(5). EPA also requires a three-year waste manifest 
retention period for hazardous waste generators and transporters. See 
40 CFR 262.40 and 263.22. Neither RSPA nor EPA specifies where a 
manifest must be kept.
    Section 172.205(f) of 49 CFR applies to the transportation of 
hazardous waste by rail. This section requires, among other things, 
that rail carriers ``[r]etain one copy of the manifest and rail 
shipping paper in accordance with 40 CFR Sec. 263.22.'' 49 CFR 
172.205(f)(iv). Section 263.22 states that ``[i]ntermediate rail 
transporters are not required to keep records pursuant to these 
regulations.''
    As mentioned above, Sec. 27-356(b)(4)d.1 requires that specified 
licensees maintain waste manifests, bills of lading or other equivalent 
manifesting, for all hazardous material disposal on-site for five 
years. Since the County's requirement imposes a longer retention period 
than does the HMR, five years instead of three years, and it applies to 
intermediate rail transporters, which are exempt from this type of 
record retention under the HMR, the County's requirement is preempted 
under the ``substantively the same as'' test to the extent that the 
requirement differs from the HMR (and EPA) requirements for hazardous 
waste manifest retention.
    Section 27-439(g)(1) requires that hazardous waste transporters 
maintain for three years waste manifests, bills of lading, or other 
equivalent manifesting for all hazardous material, sludge, and 
biomedical waste disposal. This regulation is ``substantively the same 
as'' the Federal requirements for motor vehicle transporters and, 
therefore, is not preempted. However, this section is not 
``substantively the same'' as the HMR requirements for record retention 
by intermediate rail transporters and, therefore, is preempted as it 
relates to intermediate rail transporters.

D. Standards for Packaging

1. County Requirement
    The County requirement provides that:

[a]ll waste transport vehicles shall be designed to effectively 
contain any release of discarded hazardous material, sludge, or 
biomedical waste during transportation. Routine maintenance to 
ensure the integrity of transport vehicles shall be performed by the 
owner or operator. Revised Ordinance 27-439(e)(2).
2. Comments
    ATA/AWHMT opposes the County's requirement for packaging standards 
on the basis that DOT-required packagings are intended to effectively 
contain releases of hazardous materials during transport. ATA/AWHMT 
argues that the County cannot be allowed to impose packaging standards 
on vehicles because it believes DOT-required packagings may fail.
    ATA/AWHMT contends that it is unclear how the standards will apply 
to packagings mounted on vehicles, such as cargo tanks, because they 
are equipped with pressure relief valves. In addition, ATA/AWHMT argues 
that the County's requirement virtually eliminates the use of flatbed 
trailers and other vehicles that cannot be sealed for transportation. 
ATA/AWHMT asserts that the requirement implies that a standard trailer 
design is unacceptable and vehicle modifications are necessary to use 
trailers for hazardous waste shipments. Finally, ATA/AWHMT states that, 
since there is no equivalent regulation for carriers of virgin 
hazardous material, the County is unfairly burdening waste hazardous 
materials transporters.
    The County states that it deleted the reference to the term 
``product-tight'' in the revised Ordinance to be consistent with DOT's 
packagings standards. The County contends that its revised

[[Page 81957]]

regulation is now consistent with DOT's requirements for packaging 
standards.
3. Decision
    Federal hazardous material transportation law preempts a non-
Federal requirement on ``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'' that is not 
``substantively the same as'' the HMR. 49 U.S.C. 5125(b)(1)(E). The HMR 
contain specific packaging requirements for various types of hazardous 
materials packagings. See generally, 49 CFR Parts 173, 178, 179 and 
180. These provisions prescribe specific design, manufacturing and 
testing requirements for the hazardous material packagings.
    On its face, the County's requirement appears to be more general 
than the specification packaging requirements contained in the HMR and, 
therefore, is not ``substantively the same as'' the Federal 
requirements. However, there is no information that the County is 
applying or enforcing its requirement in a manner that conflicts with 
packaging provisions contained in HMR.
    ATA/AWHMT raises the issue of whether certain vehicles, such as 
DOT-authorized cargo tanks, flatbed trailers and other vehicles that 
cannot be sealed for transportation, would meet the County's standard. 
However, ATA/AWHMT has not provided any evidence that the County has 
applied or enforced its packaging standard in 27-439(e)(2) to deny a 
license to cargo tank motor vehicles, flatbed trailers, or any other 
type of vehicle that cannot be sealed for transportation. RSPA has 
developed standards for the design, manufacturing, and fabrication of 
specific types of packages, such as cargo tanks. If the County's 
requirement, as applied or enforced, differs from RSPA's regulations, 
then the County's requirement will be preempted under the 
``substantively the same as'' test.
    Additionally, ATA/AWHMT initially argued that the County keys its 
requirements to ``vehicles,'' which suggests that vehicles not 
authorized as packagings, such as trailers, must meet packaging 
standards. Again, ATA/AWHMT has not provided any evidence that the 
County's packaging standards have been applied to vehicles that are not 
packagings. Since there does not appear to be an actual controversy 
over this issue, RSPA will not address this issue at this time.
    Finally, ATA/AWHMT claims that the County's regulation imposes an 
unfair burden on hazardous waste transporters because it applies only 
to them and not to carriers of virgin hazardous materials. Again, RSPA 
does not have sufficient evidence on how this regulation is applied and 
enforced to determine if any actual burden exists. However, RSPA has 
previously determined that a State or locality may regulate hazardous 
materials in a manner that is consistent with the HMR even if it does 
not reach as broadly as the HMR.\9\
---------------------------------------------------------------------------

    \9\ For a historical discussion of this issue see PD-13, Nassau 
County, New York, Ordinance on Transportation of Liquefied Petroleum 
Gases, Decision on Petition for Reconsideration (publication 
pending).
---------------------------------------------------------------------------

E. Periodic Vehicle Inspection Requirements

1. County Requirement
    The County's vehicle inspection requirement provides that:

[t]he owner or operator shall, upon request of DPEP, provide to DPEP 
the licensed vehicle for inspection for compliance with the 
provision of this section at any reasonable time, interval, or 
location. Revised Ordinance 27-439(e)(3).
2. Comments
    In its revised application, ATA/AWHMT states that it understands 
that the County now waives the vehicle inspection requirement at 
Sec. 27-439(e)(3) when a motor carrier supplies proof of compliance 
with the Federal periodic inspection provision at 49 CFR Sec. 396.17 
and 49 CFR part 180. Assuming that is so, ATA/AWHMT withdraws its 
objection to the requirement. However, ATA/AWHMT states that it 
continues to oppose multiple vehicle inspection requirements. AAR 
continues to object to the revised Ordinance as it is written. Although 
AAR does not believe that rail cars are considered ``vehicles'' under 
the statute, it contends that the regulation should be preempted for 
the reasons presented in AWHMT's original application.
    The County states in its comments that Article XVII no longer 
requires vehicle inspections prior to utilizing a vehicle for waste 
transportation.
3. Decision
    This issue appears to be moot. The County states that it no longer 
requires inspections prior to using a vehicle for waste transportation. 
The applicant and commenters provide no evidence or information to the 
contrary. Additionally, ATA/AWHMT states that it understands the County 
now waives the inspection requirements when a carrier demonstrates 
compliance with 49 CFR Sec. 396.17 and Part 180. Since there is no 
information or evidence that the County requirement is being applied or 
enforced, a preemption determination concerning this requirement is not 
appropriate at this time. If, in the future, there is evidence that the 
County has begun applying or enforcing this requirement, then 
interested parties may request a preemption determination.

F. Vehicle Marking Requirements

1. County Requirement
    The County's marking requirement in Sec. 27-439(e)(4) provides 
that:

[t]he owner or operator shall obtain an identification tag from DPEP 
prior to utilizing a vehicle for hauling discarded hazardous 
material, sludge, or biomedical waste. The identification tag must 
be clearly displayed on the rear of the hauling vehicle at all 
times. If the tag is lost or destroyed, the owner or operator must 
apply for a new tag accompanied by the appropriate replacement fee. 
This section does not apply to vehicles which solely transport 
hazardous waste.
2. Comments
    ATA/AWHMT did not challenge the County's marking requirement in its 
revised application. AAR asserts that the County's marking requirement 
should be preempted because it is not ``substantively the same as'' the 
Federal marking requirements. However, AAR does not identify the 
allegedly different Federal requirements.
    HMAC and Freehold Cartage initially challenged the County's 
requirement. Both organizations raised a concern about the regulation's 
applicability to a tank truck containing certain materials in the 
``heel'' of the truck. HMAC and Freehold Cartage pointed out that the 
County requirement pertains to vehicles used to transport discarded 
hazardous waste, which the County defines as products which have served 
their original intended purpose and are in the process of being 
rejected, disposed of or recycled. HMAC and Freehold Cartage argued 
that ``the `heel' in a tank truck that has unloaded its cargo and is 
returning to the chemical plant or proceeding to a cleaning facility 
for processing the residue could be considered a `discarded hazardous 
waste' and the vehicle required to display a County identification 
tag.'' Both organizations contended that this would be unreasonable and 
impractical. However, neither organization reiterated this objection to 
the revised Ordinance. The County did not address its vehicle marking 
requirement in its comments.
3. Decision
    Federal hazardous material transportation law preempts a non-
Federal requirement on the ``design, manufacturing, fabricating, 
marking, maintenance, reconditioning, repairing, or testing of a 
packaging or container

[[Page 81958]]

represented, marked, certified, or sold as qualified for use in 
transportation hazardous material'' that is not ``substantively the 
same as'' the HMR. 49 U.S.C. Sec. 5125(b)(1)(E). The issue here is 
whether the marking requirement at issue is designed to represent that 
a packaging or container is qualified for use in transporting hazardous 
material or whether it is intended to certify that the vehicle itself 
has passed inspection.
    RSPA held in PD-13 that a permit sticker placed on a vehicle, 
rather than on a cargo tank, is not a hazardous materials marking and 
is not preempted in the absence of information that the sticker is an 
obstacle to accomplishing and carrying out Federal hazardous material 
transportation law and the HMR. Nassau County, New York, Ordinance on 
Transportation of Liquefied Petroleum Gases, 63 FR 45283, 45287 (Aug. 
25, 1998). Nassau County, New York, was not a ``marking'' of hazardous 
material as contemplated in 49 U.S.C. 5125(b)(1)(B), as the applicant 
had claimed. RSPA reiterated this position in its decision on 
reconsideration. PD-13 (Nassau County), above, n.7.
    RSPA reaches a similar conclusion in this case. According to the 
information provided with AWHMT's initial application, the 
identification tag is a license identification tag that is required for 
haulers of biomedical waste, discarded hazardous material or sludge. 
See Attachment E to AWHMT's initial application. The identification tag 
must be displayed on the rear of the vehicle. Id. Based on the limited 
information provided, it appears that the County is not attempting to 
identify the contents of, or qualify the hazardous materials packaging, 
but rather the transport vehicle. Thus, the identification tag at issue 
does not appear to be a ``marking'' as contemplated in 49 U.S.C. 
5125(b)(1)(E) and therefore is not subject to the ``substantively the 
same as'' test.
    Anticipating this outcome, AWHMT, in a subsequent letter, requested 
that RSPA evaluate the County's requirement under the ``obstacle'' test 
if RSPA determined that the ``substantively the same as'' test did not 
apply. RSPA has made this analysis and has determined that the County's 
marking requirement does not create an obstacle to carrying out Federal 
hazardous material transportation law or the HMR. As in PD-13, the 
applicant and industry commenters have not provided evidence that the 
requirement to obtain and display the required identification tag 
creates any obstacle. AWHMT argued that RSPA ``has to anticipate that 
without restraint more and more non-federal entities will require such 
marking turning vehicles into bulletin boards and drawing attention 
away from the most important marking--namely that which is required by 
DOT.'' RSPA does not find this argument a sufficient basis for 
justifying preemption. Therefore, based on the evidence submitted, RSPA 
determines that there is insufficient information to find that the 
Federal hazardous material transportation law preempts the County's 
marking requirement in Sec. 27-439(e)(4).

G. Fee Requirements

1. County Requirement
    Section 27-439(a) the revised Ordinance requires that ``[u]nless 
otherwise exempted by this article, prior to any person transporting 
to, from, and within Broward County any discarded hazardous material, 
sludge, or biomedical waste, that person shall first obtain a waste 
transporter license.'' Section 27-439(b) provides, in part, that 
``[a]pplications [for a waste transporter license] shall be accompanied 
by required fee(s) as established by the Board in Chapter 41 of the 
Broward County Code of Ordinances, as amended.'' AWHMT stated that the 
current fee is $175 annually per vehicle for all applicants.
2. Comments
    In its original application, AWHMT argued that the County's fee 
structure was inherently ``unfair'' and should be preempted under the 
``obstacle'' test in 49 U.S.C. 5125(a)(2). AWHMT stated that the 
County's per-vehicle fee was flat and unapportioned and pointed out 
that the American Trucking Ass'ns v. Scheiner, 483 U.S. 266, 97 S. Ct 
2829 (1987), the Supreme Court held that flat and unapportioned fees 
violated the Commerce Clause ``internal consistency'' test and were 
therefore unconstitutional. In addition, AWHMT asserted that because 
they are unapportioned, flat fees could not be considered to be 
``fairly related'' to a fee-payer's level of presence or activity in 
the fee-assessing jurisdiction. Id. AWHMT cited several subsequent 
court decisions that relied on these holdings to invalidate hazardous 
materials flat fees and taxes.
    AWHMT also argued that a flat fee structure violates Federal 
hazardous materials transportation law, because some motor carriers 
would not be able to afford multiple flat fees and would be excluded 
from operating in some jurisdictions. AWHMT provided affidavits from 
carriers that claimed to have limited their operations in Broward 
County because of the per-vehicle fees. AWHMT argues that if the 
County's fee scheme is allowed, similar fees must be allowed in the 
other 30,000 non-federal jurisdictions. AWHMT stated that ``[t]he 
cumulative effect of such outcome would be not only a general 
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.''
    Finally, AWHMT argued that the County was unfairly burdening motor 
carriers of hazardous waste. AWHMT stated that it had reviewed the 
hazardous materials incident reports filed with DOT from 1992 to 1996 
and found that none of the reports involved hazardous waste releases. 
AWHMT indicated that there were, however, 160 non-waste hazardous 
materials incidents reported. AWHMT stated that 21 percent of these 
incidents resulted from shipments traveling through the County. Of 
these shipments, 12 involved air transportation and two involved rail 
transportation. Thus, AWHMT asserted that the regulation and fee 
burdens placed on hazardous waste motor carriers were not supported by 
the risks to the County.
    In its revised application, ATA/AWHMT continues to challenge the 
County's licensing fees requirement for hazardous waste transporters. 
ATA/AWHMT contends that ``the County's per-vehicle, flat, annual fee is 
not `fair' within the meaning of 49 U.S.C. 5125(g)(1) because it is 
unapportioned and thus not based on some fair approximation of use of 
the services provided by the County and should be preempted.'' In 
addition, ATA/AWHMT states that the County still has not provided 
information about how it uses the fee. ATA/AWHMT reiterates its request 
that the County provide an account of the fee usage and it reserves the 
right to challenge the County's fee system under the ``used for'' test 
once the County provides this information.
    The County states that its fee structure for a hazardous waste 
transporter license is currently being revised. The County anticipates 
that the revised fees will be based on ``use of service.''
3. Decision
    Federal hazardous materials transportation law provides that ``A 
State, political subdivision of a State, or Indian tribe may impose a 
fee related to transporting hazardous material only if the fee is fair 
and used for a purpose related to transporting hazardous material, 
including enforcement and

[[Page 81959]]

planning, developing, and maintaining a capability for emergency 
response.'' 49 U.S.C. 5125(g)(1).
    a. Fairness test. In PD-21, RSPA held that an annual remedial 
action fee that transporters must pay to pick up or deliver hazardous 
waste within the State is preempted as not ``fair'' when (1) it is the 
same for both interstate and intrastate transporters and has no 
approximation to the transporter's use of roads or other facilities 
within the State and (2) genuine administrative burdens do not prevent 
the application of a more finely graduated user fee. Tennessee 
Hazardous Waste Transporter Fee and Reporting Requirements, above. In 
that case, Tennessee imposed a $650 annual remedial action fee on 
hazardous waste transporters picking up or delivering in Tennessee, 
regardless of whether they were intrastate or interstate transporters. 
RSPA determined that Tennessee's remedial action fee was not fair under 
49 U.S.C. 5125(g)(1), and therefore was preempted, because the fee was 
not based on some fair approximation of the use of facilities and it 
discriminated against interstate commerce. Id. at 54478 RSPA noted 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.'' Id.
    The present case presents a similar situation. As mentioned 
previously, the County requires that any person transporting discarded 
hazardous material, sludge or biomedical waste ``to, from and within'' 
the County must obtain a waste transporter license. The fee for 
obtaining the waste transport license apparently is the same for every 
transporter. Thus, the County's fee is not fair as contemplated in 49 
U.S.C. 5125(g)(1) because it is not based on some fair approximation of 
use of facilities and because it discriminates against interstate 
commerce. Therefore, the County's fee requirement in 27-439(b) is 
preempted. The County states that it anticipates its revised fee 
structure will be based on the use of service. However, that is not 
currently the case, and the existing regulation is preempted.
    b. ``Used for'' test. As previously mentioned, Federal hazardous 
material transportation law requires that a State, local or Indian 
tribe fee related to hazardous material transportation must be used for 
a purpose related to transporting hazardous material, including 
enforcement and planning, developing, and maintaining a capability for 
emergency response. 49 U.S.C. 5125(g)(1). ATA/AWHMT stated that it has 
asked the County on several occasions to provide an explanation of how 
it used the fee at issue, but the County never responded. However, 
AWHMT did allege in a previous letter that the County used the fee as 
``reimburse[ment] * * * for a variety of administrative and other 
unidentified costs related to its general regulation of hazardous 
materials transporters.'' The County has not provided any evidence of 
how it uses the waste transporter licensing fees that it collects. In 
the absence of any evidence from the County on this issue, RSPA cannot 
find that the fees are used for purposes related to hazardous materials 
transportation, and therefore the County's fee requirement is preempted 
under the ``used for'' test.
    c. ``Obstacle'' test. Because the County's requirement fails the 
fairness and ``used for'' tests in 49 U.S.C. Sec. 5125(g)(1), it 
creates an obstacle to carrying out the Federal hazardous materials 
transportation law and thus fails the ``obstacle'' test in 49 U.S.C. 
Sec. 5125(a)(2).

H. Reporting Requirements

1. County Requirement
    The County requirement in Sec. 27-439(g)(2) requires that the owner 
or operator:

[s]ubmit a monthly report to DPEP no later than the fifteenth (15) 
day of the succeeding month. If no waste is transported during the 
reporting month, the owner or operator shall send in a report 
stating such.
    The report shall include:
    a. The waste transporter name and license number;
    b. The month covered by the report;
    c. The total quantity of material picked up by type;
    d. The total quantity of material delivered, by type, to a 
licensed disposal facility and identify the disposal location(s); 
and
    e. In addition to the requirements specified in a. through d. 
above, waste transporters which solely transport hazardous waste 
shall include in the monthly report the generator's name and 
address, type and quantity of waste, and the date the waste was 
collected.

2. Comments

    ATA/AWHMT contends that the County's monthly reporting 
requirement should be preempted under the ``obstacle'' test because 
it presents an obstacle to the safe and efficient transportation of 
hazardous materials. ATA/AWHMT cites the legislative history of 
Federal hazardous materials transportation law and the holding in 
Colorado Pub. Util. Comm'n v. Harmon, above, as justification for 
its claim. Furthermore, ATA/AWHMT points out that, with the 
exception of one item (the monthly totals), all of the information 
required in the report can be obtained from the Uniform Hazardous 
Waste Manifest.
    The County asserts that it requires monthly reports so that it 
can better track the transportation and disposal activities in the 
County. In addition, the County states that it will use the 
information from the reports to assess license fees.

3. Decision

    Under the ``obstacle'' test, a non-Federal requirement, as 
applied or enforced, is preempted if it creates an obstacle to 
accomplishing and carrying out Federal hazardous materials law or 
regulations. 49 U.S.C. 5125(a)(2). RSPA and the courts have held 
numerous times that requirements for information or documentation in 
excess of Federal requirements create potential delay, constitute an 
obstacle to execution of the Federal hazardous materials law and the 
HMR, and thus are preempted.\10\ There is no de minimis exception to 
the ``obstacle'' test because thousands of jurisdictions could 
impose de minimis information requirements. IR-8(A), Decision on 
Appeal; State of Michigan Rules and Regulations Affecting 
Radioactive Materials Transportation, 52 FR 13000, 13004 (Apr. 20, 
1987).
---------------------------------------------------------------------------

    \10\ See IR-2 (Rhode Island), above; IR-6 (Covington), above; 
IR-8, State of Michigan; Radioactive Materials Transportation 
Regulations of the State Fire Safety Board and the Department of 
Public Health, 49 FR 46637 (Nov. 27, 1984); IR-8(A) (Michigan), 
above; IR-15, State of Vermont; Rules for Transportation of 
Irradiated Reactor Fuel and Nuclear Waste, 49 FR 46660 (Nov. 27, 
1984); IR-15(A), State of Vermont; Rules for Transportation of 
Irradiated Reactor Fuel and Nuclear Waste, Decision on Appeal, 52 FR 
13062 (Apr. 20, 1987); IR-18 (Prince Georges County, MD, above; IR-
18(A) (Prince Georges County, MD), above; IR-19 (Nevada), above; IR-
19(A) (Nevada), above); IR-21 (Connecticut) above; IR-26 California 
DMV), above; IR-27, Colorado Regulations on Transportation of 
Radioactive Materials, 54 FR 16326 (Apr. 21, 1989), correction, 54 
FR 20001 (May 9, 1989); IR-28 (San Jose), above; IR-30 (Oakland), 
above; Chem-Nuclear Systems, Inc. v. City of Missoula, No. 80-18-M 
(D. Mont. 1984); Southern Pac. Transport. Co. v. Public Serv. Comm'n 
of Nevada, 909 F.2d 352 (9th Cir. 1990), reversing No. CV-N-86-444-
BRT (D. Nev. 1988); Colorado Pub. Utilities Comm'n v. Harmon, above, 
reversing No. 88-Z-1524 (D. Colo. 1989).
---------------------------------------------------------------------------

    The Court of Appeals held in Colorado Pub. Utilities Comm'n v. 
Harmon, above, that:

[t]he Secretary's regulations contain hundreds of information and 
documentation requirements, all of which have been established by 
the Secretary to ensure the health and safety of citizens in every 
jurisdiction. Congress specifically found that additional 
documentation and information requirements in one jurisdiction 
create `unreasonable hazards in other jurisdictions' and could 
confound `shippers and carriers which attempt to comply with 
multiple and conflicting regulations.' [Pub. L. 101-615 Sec. 2, 
formerly 49 U.S.C. app. Sec. 1801].* * * In addition to obstructing 
Congress' objective that safety be achieved through uniformity, the 
expense of burdensome documentation and information requirements 
also is contrary to Congress' intent that regulation of hazardous 
materials be as cost-effective as possible. (951 F.2d at 1581).

    As ATA/AWHMT points out, the County can get all of the information,

[[Page 81960]]

except for the monthly totals, from the Uniform Hazardous Waste 
Manifest. To require a transporter to provide all of the information 
again could create the type of confusion and lack of cost-effectiveness 
contemplated in the Harmon case discussed above. Therefore, the 
County's monthly reporting requirement under Sec. 27-439(g)(2) is 
preempted under the ``obstacle'' test because it is in excess of the 
Federal requirements.

IV. Ruling

    Federal hazardous materials transportation law preempts the 
following Broward County Code of Ordinances:
     Portions of Ordinances 27-352 and 27-436 containing 
hazardous material definitions. The definitions of biomedical waste, 
combustible liquid, discarded hazardous materials, flammable liquid, 
hazardous materials and sludge are preempted to the extent that they 
relate to transportation in commerce. In addition, all County hazardous 
materials transportation requirements that rely on these definitions 
are also preempted.
     Portions of Ordinances 27-355(a)(1) and 27-439(b)(1) 
containing release reporting requirements. The written notification 
requirements of these sections are preempted to the extent that they 
relate to transportation in commerce. The oral notification 
requirements of these sections are not preempted, as discussed below.
     Ordinance 27-356(b)(4)d.1 containing shipping paper 
retention requirements. The shipping paper requirements in this section 
are preempted to the extent that they differ from HMR or EPA 
requirements for shipping paper and waste manifest retention.
     Ordinance 27-439(b) containing a fee requirement for 
obtaining a waste transport license.
     Ordinance 27-439(g)(2) containing monthly reporting 
requirements. The reporting requirements in this section are preempted 
to the extent that they relate to transportation in commerce.
    Federal hazardous materials transportation law does not preempt the 
following Broward County Code of Ordinances:
     Portions of Ordinance 27-355(a)(1) and 27-439(f)(1) 
containing release reporting requirements. The oral notification 
requirements of these sections are not preempted. However, as discussed 
above, the written notification requirement sections are preempted to 
the extent that they relate to transportation in commerce.
     Ordinance 27-439(g)(1) containing shipping paper retention 
requirements for motor vehicle waste transporters. However, this 
requirement is preempted to the extent that it applies to intermediate 
rail transporters.
     Ordinance 27-439(e)(2) containing standards for waste 
transport vehicles.
     Ordinance 27-439(e)(3) containing vehicle inspection 
requirements.
     Ordinance 27-439(e)(4) containing vehicle marking 
requirements.

V. Petition for Reconsideration/Judicial Review

    In accordance with 49 CFR 107.211(a), any 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 any 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, DC on December 20, 2000.
Robert A. McGuire,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 00-32885 Filed 12-26-00; 8:45 am]
BILLING CODE 4910-60-M