[Federal Register Volume 66, Number 137 (Tuesday, July 17, 2001)]
[Notices]
[Pages 37260-37267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-17572]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration, Federal Motor Carrier 
Safety Administration

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


Morrisville, PA Requirements for Transportation of ``Dangerous 
Waste''

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

ACTION: Notice of administrative determination of preemption.

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APPLICANT: Med/Waste, Inc. and Sanford Motors, Inc.

LOCAL LAWS AFFECTED: Morrisville, Pennsylvania Ordinance No. 902.

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.

SUMMARY: Federal hazardous material transportation law preempts the 
following provisions in Ordinance No. 902 of the Borough of 
Morrisville, Pennsylvania:
    1. The definitions of ``infectious waste,'' ``hospital waste,'' and 
``dangerous waste'' in Section 01 and the use of the term ``dangerous 
waste'' throughout the ordinance.
    2. The designation of Route 1 (between the Delaware River Toll 
Bridge and the boundary line with the Township of Falls) as the only 
street in the Borough that may be used by trucks transporting dangerous 
waste, in Section 02.
    3. The requirement that each truck transporting dangerous waste 
carry and have available ``the manifest required for transportation of 
such waste under the Resource Conservation and Recovery Act, or federal 
or state regulations implementing that Act,'' in Section 05(a).

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 
Motor Carrier Safety Administration (Tel. No. 202-366-1374), U.S. 
Department of Transportation, Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

A. Application for Preemption Determination

    This proceeding is based on the December 30, 1999 application of 
Med/Waste, Inc. and its subsidiary, Sanford Motors, Inc. (collectively 
``Med/Waste'') for a determination that Federal hazardous material 
transportation law preempts requirements contained in Ordinance No. 902 
of the Borough of Morrisville, Pennsylvania (the Borough). The copy of 
Ordinance No. 902 attached to Med/Waste's application indicates that 
this ordinance was adopted on September 20, 1999, and it regulates 
``the movement of infectious and chemotherapeutic wastes (hereinafter 
dangerous waste) by motor vehicle truck in the Borough of 
Morrisville.''
    In its application, Med/Waste challenged (1) the definition and use 
of the term ``dangerous waste'' and the definitions of ``infectious 
waste'' and ``hospital waste''; (2) the limitation of trucks 
transporting dangerous waste within the Borough to Route 1; and (3) the 
requirement to carry the uniform manifest required for hazardous 
wastes. The text of Med/Waste's application and a March 1, 2000 letter 
from the Borough of Morrisville in response were published in the 
Federal Register on April 14, 2000, and interested parties were invited 
to submit comments. 65 FR 20258. Comments were submitted by Med/Waste, 
Sanitec, the Medical Waste Institute (the Institute), Biosystems, and 
American Waste Industries, Inc. (American). The Borough did not submit 
any further comments.
    In comments submitted in response to the April 14, 2000 notice, 
Med/Waste stated that several of its drivers have received tickets for 
violating Ordinance No. 902, and it provided documents on citations 
issued on September 29 and October 8, 1999. On the summons, the fine is 
specified at $300, plus costs, for violations of Ordinance No. 902. 
Because the ``location'' is shown as Pennsylvania Avenue on each of the 
citations, where Med/Waste's facility is located, it is assumed that 
the citations were issued for departing from Route 1.\1\
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    \1\ In a November 29, 2000 letter, Med/Waste asked RSPA for 
``some indication of the estimated time of decision'' in this 
matter, because dates for court hearings on these citations (which 
had previously been continued) were coming due. This letter and a 
copy of RSPA's December 11, 2000 response have been placed in the 
docket.
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    In its comments, Med/Waste also stated that Ordinance No. 902 
``must be preempted in its entirety in order to preserve the integrity 
of the national, uniform scheme of hazardous material transportation.'' 
Med/Waste and others discussed additional provisions in Ordinance No. 
902 concerning speed limits, accident reporting, time limits on storage 
of dangerous waste, and the posting of a $50,000,000 indemnity bond 
with the Borough Secretary. These additional requirements are discussed 
generally at the end of Part III, below. However, no determination is 
made whether Federal hazardous material transportation law preempts 
these additional requirements because Med/Waste's application did not 
specifically challenge or address them, and the April 14, 2000 notice 
in the Federal Register did not clearly indicate that RSPA and FMCSA 
would consider these other requirements or the ordinance as a whole.

B. Federal Regulation of Medical Waste Transportation

    In a March 1993 notice in its rulemaking proceeding under docket 
No. HM-181G, RSPA discussed the Federal regulation of medical waste 
transportation. 58 FR 12207, 12208 (March 3, 1993). As explained there, 
DOT has listed and regulated ``etiologic agents'' as hazardous 
materials since 1972. In a 1991 final rule, RSPA accepted an industry 
proposal ``that medical waste should be treated differently than other 
infectious substances.'' Id. at 12209, referring to RSPA's final rule, 
56 FR 66124 (Dec. 20, 1991). At that time, RSPA concluded that medical 
waste should remain regulated as a hazardous material:

    Since the majority of these wastes are untreated and, thus, may 
potentially contain infectious substances, RSPA strongly believes 
that the public and transport personnel [should] be protected from 
the hazards of these materials during transportation.

56 FR 66142. Accordingly, RSPA has provided ``less rigorous 
requirements'' for regulated medical wastes than for other infectious 
substances. 56 FR 66131.
    In the March 1993 notice, RSPA also referred to a two-year 
demonstration program that the U.S. Environmental Protection Agency 
(EPA) had

[[Page 37261]]

established under the Medical Waste Tracking Act of 1988, but observed 
that ``EPA's regulations on medical waste in 40 CFR part 259 applied in 
only five States and had expired on June 22, 1991.'' 58 FR at 12209. 
RSPA explained that--

    To provide less rigorous requirements for medical waste 
containing infectious substances, RSPA turned to the expired EPA 
regulations as a model that could be adapted, with some 
modifications, to the HMR.

Id. at 12209-10.
    Accordingly, RSPA acted consistently with the expired EPA 
regulations when it ``created a subcategory of infectious substances--
infectious substances that are contained in or constitute medical 
waste.'' Id. at 12210. See also RSPA's final rules, 59 FR 48762 (Sept. 
22, 1994), 59 FR 53116 (Oct. 21, 1994), and a further notice, 59 FR 
65860 (Dec. 21, 1994), and final rule, 60 FR 48780 (Sept. 20, 1995), 
all in docket No. HM-181G. The Medical Waste Tracking Act of 1988 (Pub. 
L. 100-582, 102 Stat. 2950) and EPA's demonstration program for 
tracking and managing medical waste are also described in EPA's interim 
final rule establishing the two-year demonstration program, 54 FR 12326 
(Mar. 24, 1989), and its final rule removing obsolete rules, 60 FR 
33912 (June 29, 1995).
    The HMR define and provide exceptions applicable to ``regulated 
medical waste'' in 49 CFR 173.134 (which also covers infectious 
substances and etiologic agents), and specific packaging requirements 
are set forth in Sec. 173.196 (for infectious substances) and 
Sec. 173.197 (for regulated medical waste).\2\ Thus, regulated medical 
wastes must be distinguished from (and are not within the category of) 
``hazardous wastes.'' In its March 24, 1989 final rule, 54 FR at 12330, 
EPA stated that it ``did not list infectious waste in the final rule'' 
listing hazardous wastes under the Resource Conservation and Recovery 
Act (RCRA), 42 U.S.C. 6901 et seq. The HMR specifically state that ``A 
hazardous waste is not subject to regulation as a regulated medical 
waste.'' 49 CFR 173.134(b)(2).
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    \2\ In a Notice of Proposed Rulemaking in Docket No. RSPA-98-
3971 (HM-226), published in the Federal Register on January 22, 2001 
(66 FR 6942), RSPA has proposed to adopt the ``risk groups'' 
developed by the World Health Organization; modify definitions of 
Division 6.2 materials (infectious substances), biological products, 
diagnostic specimens, and regulated medical waste; add additional 
definitions or cultures and stocks, sharps, and toxins; and include 
provisions on used health care products. However, these proposed 
changes would not change the overall scheme of designation and 
classification of infectious substances in the HMR.
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    In its regulations at 67 PA Code 403.4, the Pennsylvania Department 
of Transportation has adopted as State law those parts of the HMR in 49 
CFR parts 171-173 and 178-180 and those parts of FMCSA's Federal Motor 
Carrier Safety Regulations in 49 CFR parts 388 and 397.

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 
Sec. 5125(e) or specific authority in another Federal law--a 
requirement of a State, political subdivision of a State, or Indian 
tribe is preempted if--

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

These two paragraphs set forth the ``dual compliance'' and ``obstacle'' 
criteria that RSPA had applied in issuing inconsistency rulings prior 
to 1990, under the original preemption provision in the Hazardous 
Materials Transportation Act (HMTA). Pub. L. 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, is 
preempted unless it is authorized by another Federal law or DOT grants 
a waiver of preemption:

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

To be ``substantively the same,'' the non-Federal requirement must 
conform ``in every significant respect to the Federal requirement. 
Editorial and other similar de minimis changes are permitted.'' 49 CFR 
107.202(d).
    Subsection (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).\3\

    \3\ Section 5112(b)(1) provides that the highway routing 
standards shall include:
    (A) A requirement that a highway routing designation, 
limitation, or requirement of a State or Indian tribe shall enhance 
public safety in the area subject to the jurisdiction of the State 
or tribe and in areas of the United States not subject to the 
jurisdiction of the State or tribe and directly affected by the 
designation, limitation, or requirement;
    (B) Minimum procedural requirements to ensure public 
participation when the State or Indian tribe is establishing a 
highway routing designation, limitation, or requirement;
    (C) A requirement that, in establishing a highway routing 
designation, limitation, or requirement, a State or Indian tribe 
consult with appropriate State, local, and tribal officials having 
jurisdiction over areas of the United States not subject to the 
jurisdiction of the State of tribe establishing the designation, 
limitation, or requirement and with affected industries;
    (D) A requirement that a highway routing designation, 
limitation, or requirement of a State or Indian tribe shall ensure 
through highway routing for the transportation of hazardous material 
between adjacent areas;
    (E) A requirement that a highway routing designation, 
limitation, or requirement of one State or Indian tribe affecting 
the transportation of hazardous material in another State or tribe 
may be established, maintained, and enforced by the State or tribe 
establishing the designation, limitation, or requirement only if--
    (i) The designation, limitation, or requirement is agreed to by 
the other State or tribe within a reasonable period or is approved 
by the Secretary under subsection (d) of this section; and
    (ii) the designation, limitation, or requirement is not an 
unreasonable burden on commerce;
    (F) a requirement that establishing a highway routing 
designation, limitation, or requirement of a State or Indian tribe 
be completed in a timely manner;
    (G) a requirement that a highway routing designation, 
limitation, or requirement of a State or Indian tribe provide 
reasonable routes for motor vehicles transporting hazardous material 
to reach terminals, facilities for food, fuel, repairs, and rest, 
and places to load and unload hazardous material;
    (H) a requirement that the State be responsible--
    (i) for ensuring that political subdivisions of the State comply 
with standards prescribed under this subsection in establishing, 
maintaining, and enforcing a highway routing designation, 
limitation, or requirement; and
    (ii) for resolving a dispute between political subdivisions; and
    (I) a requirement that in [establishing, maintaining, and 
enforcing a highway routing designation, limitation, or 
requirement], a State or Indian tribe shall consider--
    (i) population density;
    (ii) the types of highways;
    (iii) the types and amounts of hazardous materials;
    (iv) emergency response capabilities;
    (v) the results of consulting with affected persons;
    (vi) exposure and other risk factors;
    (vii) terrain consideration;
    (viii) the continuity of routes;
    (ix) alternate routes;
    (x) the effects on commerce;
    (xi) delays in transportation; and
    (xii) other factors that the Secretary considers appropriate.

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[[Page 37262]]

FMCSA's standards that a State or Indian tribe must follow in 
establishing highway routing requirements for nonradioactive materials 
are set forth in 49 CFR part 397, subpart C, and apply to any 
designations that are established or modified on or after November 14, 
1994. 49 CFR 397.69(a).
    The preemption provisions in 49 U.S.C. 5125 carry out Congress's 
view that a single body of uniform Federal regulations promotes safety 
in the transportation of hazardous materials. In considering the HMTA, 
the Senate Commerce Committee ``endorse[d] the principle of preemption 
in order to preclude a multiplicity of State and local regulations and 
the potential for varying as well as conflicting regulations in the 
area of hazardous materials transportation.'' S. Rep. No. 1102, 93rd 
Cong. 2nd Sess. 37 (1974). When it amended the HMTA in 1990, Congress 
specifically found that:

    (3) Many States and localities have enacted laws and regulations 
which vary from Federal laws and regulations pertaining to the 
transportation of hazardous materials, thereby creating the 
potential for unreasonable hazards in other jurisdictions and 
confounding shippers and carriers which attempt to comply with 
multiple and conflicting registration, permitting, routing, 
notification, and other regulatory requirements,
    (4) Because of the potential risks to life, property, and the 
environment posed by unintentional releases of hazardous materials, 
consistency in laws and regulations governing the transportation of 
hazardous materials is necessary and desirable,
    (5) In order to achieve greater uniformity and to promote the 
public health, welfare, and safety at all levels, Federal standards 
for regulating the transportation of hazardous materials in 
intrastate, interstate, and foreign commerce are necessary and 
desirable.

Pub. L. 101-615 Sec. 2, 104 Stat. 3244.
    A Federal Court of Appeals has found that uniformity was the 
``linchpin'' in the design of the HMTA, including the 1990 amendments 
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. Pub. L. 103-272, 108 Stat. 745.) To 
achieve safety through consistent Federal and State requirements, 
Congress has also authorized DOT to make grants to States ``for the 
development or implementation of programs for the enforcement of 
regulations, standards, and orders'' that are ``compatible'' with the 
highway-related portions of the HMR. 49 U.S.C. 31102(a). In this fiscal 
year, $155 million is available for grants to States under the Federal 
Motor Carrier Safety Assistance Program. See 49 CFR Parts 350 & 355 and 
the preamble to FMCSA's March 21, 2000 final rule, 65 FR 15092, 15095-
96.
    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. This 
administrative determination replaced RSPA's process for issuing 
advisory inconsistency rulings (IRs) under the ``dual compliance'' and 
``obstacle'' criteria now explicitly set forth in section 5125(a).
    The Secretary of Transportation has delegated to FMCSA the 
authority to make determinations of preemption that concern highway 
routing and to RSPA the authority to make such determinations 
concerning all other hazardous materials transportation issues. 49 CFR 
1.53(b)(2), 1.73(d)(2). In this determination, FMCSA's Administrator 
has addressed the highway routing issues, and RSPA's Associate 
Administrator for Hazardous Materials Safety has addressed the 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 be published in the Federal Register. 
Following the receipt and consideration of written comments, RSPA and 
FMCSA publish their determination in the Federal Register. See 49 CFR 
107.209(c), 397.211(d). A short period of time is allowed for filing 
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, 951 F.2d 
at 1581 n.10.
    In making preemption determinations under 49 U.S.C. 5125(d), RSPA 
and FMCSA are guided by the principles and policies set forth in 
Executive Order No. 13132, entitled ``Federalism'' (64 FR 43255 (August 
10, 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 RSPA and FMCSA have implemented 
through their regulations.

III. Discussion

A. Authority To Set ``More Stringent'' Requirements

    In its March 1, 2000 letter (published as Appendix B to the April 
14, 2000 Federal Register notice), the Borough argued that Federal 
environmental statutes set only ``minimum standards,'' and that ``local 
governments [may] enact more stringent regulations.'' It cited City of 
Philadelphia v. New Jersey, 437 U.S. 617 (1978), as support for the 
position that RCRA allows state, regional, and local authorities ``to 
control the collection and disposal of solid waste as one of their 
primary functions,'' and quoted from that case that there was ``no 
clear and manifest purpose of Congress to preempt the entire field of 
interstate waste management.'' 437 U.S. at 620. The Borough also cited 
Ensco, Inc. v. Dumas, 807 F.2d 743 (8th Cir. 1986), as holding 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 Borough's arguments fail for two reasons. First, as discussed 
in Section I.B., above, EPA's two-year demonstration program for 
tracking and managing medical wastes ended in 1991, and the types of 
wastes regulated by Ordinance No. 902 are not within the category of 
hazardous wastes regulated by EPA under RCRA. The ``more stringent'' 
language in 42 U.S.C. 6929

[[Page 37263]]

does not apply to ``dangerous waste'' and other categories of wastes 
covered by Ordinance No. 902.
    Second, in enacting RCRA, Congress provided that EPA's regulations 
on the transportation of hazardous waste must be ``consistent with'' 
the HMR. 42 U.S.C. 6923(b). Also, a State program must be ``equivalent 
to'' and ``consistent with'' EPA's regulations in order to be approved 
by EPA. 42 U.S.C. 6926(b). RCRA and EPA's regulations do not authorize 
a State or locality to impose requirements on the transportation of 
hazardous waste that fail to satisfy the preemption criteria in 49 
U.S.C. 5125, as discussed in more detail in PD-12(R), New York 
Department of Environmental Conservation Requirements on the Transfer 
and Storage of Hazardous Wastes, etc., 60 FR 62527, 62533-34 (Dec. 6, 
1995), decision on petition for reconsideration, 62 FR 15970 (Apr. 3, 
1997), petition for judicial review dismissed, New York v. U.S. Dep't 
of Transportation, 37 F. Supp. 2d 152, 158 (N.D.N.Y. 1999) (``EPA's 
authorization of a state RCRA program is not the equivalent of 
`authoriz[ation] by another law of the United States.' '').

B. Designation, Description and Classification of Hazardous Material

    Ordinance No. 902 added a new part entitled ``Dangerous Waste'' to 
the Borough's Motor Vehicles and Traffic Code. The term ``dangerous 
waste'' is defined in Section 01(f) as ``infectious wastes, or 
chemotherapeutic wastes, or hazardous wastes, or any combination 
thereof.'' In addition, ``all Hospital Waste will be presumed to be 
DANGEROUS WASTE,'' according to Section 07.
    ``Infectious waste'' is defined in Section 01(c) as ``waste that 
contains or may contain any disease-producing microorganism or 
material,'' including but not limited to 12 examples such as ``cultures 
and stocks of etiologic agents,'' ``waste blood and blood products,'' 
and ``[t]issues, organs, body parts, blood and body fluids that are 
removed during surgery and autopsy.'' The term ``hospital waste'' is 
defined in Section 01(g) as:

waste of any sort generated by nursing homes, hospitals, clinics for 
the treatment of disease, or like institutions or businesses. The 
term shall also include paper products, bedding, towels, containers, 
or cleaning implements that have been exposed to infectious, 
chemotherapeutic, pathological wastes, solid wastes and/or hazardous 
wastes generated by nursing homes, hospitals, clinics for the 
treatment of disease, or like institutions or businesses.\4\
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    \4\ Section 01 of Ordinance No. 902 also defines the terms 
``waste,'' ``hazardous waste,'' and ``chemotherapeutic waste.''

    In its application, Med/Waste stated that the terms ``infectious 
waste,'' ``hospital waste,'' and ``dangerous waste'' conflict with the 
category of ``regulated medical waste'' in the HMR. Med/Waste also 
stated that the use of ``dangerous'' in the ordinance is not consistent 
with the HMR's category of materials that are ``Dangerous when wet.'' 
Both Sanitec and American commented that Ordinance No. 902 contains 
``confusing and conflicting'' definitions that create confusion about 
the HMR and regulations of the State of Pennsylvania.
    The Institute stated that the term ``dangerous waste'' differs 
substantively from the HMR by classifying as hazardous, and regulating, 
materials that are not covered in the HMR. As examples, the Institute 
referred to the definition of ``infectious waste'' in Section 01(c) as 
including (1) tissues, organs, body parts, blood and body fluids that 
are removed during surgery and autopsy (but which does not take into 
account the exception in 49 CFR 173.134(b)(1) for ceremonial interment 
or cremation), and (2) animal bedding and other wastes that have been 
``in contact with'' laboratory research animals but may have not been 
used in ``diagnosis, treatment or immunization'' of animals as covered 
in the HMR's definition of ``regulated medical waste'' in 49 CFR 
173.134(a)(4). The Institute also asserted that materials defined in 
the HMR as ``regulated medical waste'' are categorized or classified 
differently in Ordinance No. 902, because the Borough imposes on 
infectious waste ``the requirements for hazardous waste under RCRA,'' 
despite the fact that hazardous waste under RCRA ``does not include 
infectious substances.''
    The Borough stated that the definitions in Ordinance No. 902 
``address essentially the same types of materials'' as the HMR. It 
compared the definition of ``infectious waste'' in the ordinance, 
including several of the examples, to wording in 49 CFR 173.134(a). 
However, the Borough did not address its definitions for ``dangerous 
waste'' and ``hospital waste'' or attempt to show that these terms are 
substantively the same as definitions and classifications of hazardous 
materials in the HMR.
    The scheme in Ordinance No. 902 for describing and classifying 
``dangerous waste'' differs markedly from that in the HMR. In the HMR, 
among the ``infectious substances'' in Division 6.2 are diagnostic 
specimens, biological agents, and regulated medical waste. 49 CFR 
173.134(a). The Borough's comments attempt to explain that the examples 
listed in the definition of ``infectious waste'' in Ordinance No. 902 
cover diagnostic specimens, biological agents, and regulated medical 
waste. However, these subcategories of infectious waste (and the manner 
in which they are regulated) overlap; they are not separated as they 
are in the HMR. Moreover, the language in Section 01(g) of Ordinance 
No. 902, ``waste of any sort generated by nursing homes, hospitals, 
clinics for the treatment of disease, or like institutions or 
businesses'' appears to include ordinary trash from administrative 
offices, which is not within the scope of an ``infectious substance'' 
regulated by the HMR. Thus, ``hospital waste'' in Ordinance No. 902 
encompasses both (1) items that are within the definition of 
``regulated medical waste'' in the HMR and (2) other items that may not 
contain any infectious substance and, therefore, are not regulated 
under the HMR.
    The term ``dangerous waste'' in Ordinance No. 902 is also used in a 
manner that differs from the designation and classification scheme in 
the HMR. While the HMR do not define the word ``dangerous'' by itself 
or as modifying the word ``waste,'' in the overall context of the HMR, 
``dangerous'' is a synonym for the word ``hazardous.'' The HMR use the 
term ``hazardous materials'' in the same manner as the term ``dangerous 
goods'' is used in international regulations. See the UN 
Recommendations on the Transport of Dangerous Goods, the Technical 
Instructions for the Safe Transport of Dangerous Goods by Air, and the 
International Maritime Dangerous Goods Code, each of which deals with 
those materials regulated as ``hazardous'' under the HMR. In the same 
manner, when used in the HMR to describe materials that are ``dangerous 
when wet,'' the word ``dangerous'' means the same as ``hazardous.''
    In Ordinance No. 902, however, the term ``dangerous waste'' does 
not correspond to the category of ``hazardous waste'' in the HMR. It 
appears to include (1) types of waste infectious materials that are 
regulated by DOT as infectious substances, rather than ``hazardous 
waste'' and (2) other types of waste that present no hazards at all, 
such as ``hospital waste.'' In this manner, the term ``dangerous 
waste'' in Ordinance No. 902 is not substantively the same as any 
definition, description or classification of hazardous material in the 
HMR.

[[Page 37264]]

    As discussed in Part II above, 49 U.S.C. 5125(b)(1)(A) provides 
that (in the absence of a waiver or specific authorization in another 
Federal law), a local requirement on ``the designation, description, 
and classification of hazardous material'' is preempted when it is not 
``substantively the same as'' the HMR. Under this standard, the overall 
scheme of designation and classification of hazardous materials must be 
substantively the same as in the HMR. It is not sufficient that one 
particular definition is similar to a definition of a category of 
hazardous materials, or that the local ordinance covers ``essentially 
the same types of materials'' as the Borough stated, if the scheme of 
designation and classification are markedly different.
    In this case, the definitions of ``infectious waste,'' ``hospital 
waste,'' and ``dangerous waste'' in Ordinance No. 902 are preempted by 
49 U.S.C. 5125(b)(1)(A) because these terms are used to create a scheme 
for designating and classifying hazardous material that is not 
substantively the same as in the HMR. In addition, the word 
``dangerous'' in the term ``dangerous waste'' is preempted under 49 
U.S.C. 5125(b)(1)(A) because it is used and defined in Ordinance No. 
902 in a manner that is substantively different from the use of the 
word ``dangerous'' in the HMR.

C. Prohibition Against Using Streets Other Than Route 1

    Section 02 of Ordinance No. 902 provides that ``at this time'' the 
only street on which trucks may transport dangerous waste within the 
Borough is Route 1.\5\ Because this limitation was established after 
November 14, 1994, it must comply with FMCSA's standards in 49 CFR part 
397, subpart C. 49 CFR 397.69(a). These standards, issued pursuant to 
49 U.S.C. 5112(b), specify that there must be:
---------------------------------------------------------------------------

    \5\ Section 02 states that because the Borough's streets ``are 
generally narrow, winding, and in places congested, and not 
generally designed to accommodate heavy or constant truck traffic,'' 
the Borough may ``designate certain routes and/or particular streets 
for use by motor vehicle trucks hauling DANGEROUS WASTE.'' There is 
no indication that the Borough has designated any streets other than 
Route 1.

--A finding by the State that the highway routing designation 
``enhances public safety in the areas subject to its jurisdiction and 
in other areas which are directly affected by such highway routing 
designation.'' 49 CFR 397.71(b)(1).
--Notice to the public of the proposed routing designation, a 30-day 
period for the public to submit comments, and consideration of whether 
to hold a public hearing (with advance notice to the public). 49 CFR 
397.71(b)(2).
--Notice to and consultation with ``officials of affected political 
subdivisions, States and Indian tribes, and any other affected 
parties,'' and completion of the routing designation process within 18 
months of the notice to the public or notice to other affected 
jurisdictions. 49 CFR 397.71(b)(3), (6).
--Assurance of ``through highway routing * * * between adjacent 
areas.'' 49 CFR 397.71(b)(4).
--No unreasonable burden on commerce and agreement by any other 
affected State. 49 CFR 397.71(b)(5).
--Reasonable access for vehicles to terminals; pickup and delivery 
points and loading and unloading locations; and facilities for food, 
fuel, repairs, rest, and safe havens. 49 CFR 397.71(b)(7).
--Consideration of specific factors, including population density, 
emergency response capabilities, continuity of routes, alternative 
routes, effects on commerce, potential delays in transportation, and 
congestion and accident history. 49 CFR 397.71(b)(9).

    In addition, the State must (1) ensure that its political 
subdivisions comply with FMCSA's standards and procedures (49 CFR 
397.71(b)(8)); (2) make information on highway routing designations 
available to the public ``in the form of maps, lists, road signs or 
some combination thereof'' (49 CFR 397.73(a)); and (3) report highway 
routing designations to FMCSA for publication in the Federal Register 
(49 CFR 397.73(b)).\6\
---------------------------------------------------------------------------

    \6\ The routing designations and restrictions reported to FMCSA 
have been published in the Federal Register, 63 FR 31549 (June 9, 
1998), 65 FR 75771 (Dec. 4, 2000), and they are also posted on 
FMCSA's internet web site at http://hazmat.fmcsa.dot.gov>.
---------------------------------------------------------------------------

    Med/Waste stated that the Borough failed to follow FMCSA's 
standards and procedures when it designated Route 1 as the only street 
on which trucks may transport dangerous waste within the Borough; 
``there was no notification that the Borough was even considering the 
Ordinance * * * and there is still no signage in the Borough regarding 
the restrictions of this Ordinance.''
    Med/Waste also stated that the designation of Route 1 as the only 
street on which trucks may transport dangerous waste within the Borough 
cuts off access to its permitted facility at 1307 South Pennsylvania 
Avenue, which it has operated for more than five years. That address 
appears to be approximately three-quarters of a mile from Route 1 and, 
on the citations Med/Waste provided, the location of the violation is 
shown as Pennsylvania Avenue.
    Sanitec, American and the Institute agreed that the Borough's 
routing limitation in Section 02 is invalid because the procedures in 
49 CFR 397.71(b) were not followed. The Institute also stated that 
there was no notice of an opportunity to comment on ``the impacts of 
the routing restrictions,'' which prevents Med/Waste from access to its 
facility and also ``restricts intra and interstate transporters from 
servicing the many health care facilities located in and around the 
Borough.'' The Institute noted that the stated basis in Ordinance No. 
902 for limiting trucks transporting dangerous waste to Route 1 cannot 
be valid because ``the Borough is not regulating other industries whose 
heavy trucks traverse roads located within the Borough.''
    The Borough stated that the State of Pennsylvania has delegated to 
counties and municipalities ``the right to designate specific highway 
routes over which hazardous material may and may not be transported by 
motor vehicle.'' In response to Med/Waste's reference to 49 U.S.C. 
31114, the Borough stated that there was no restriction ``on access to 
the interstate highway system'' because ``no interstate highways 
traverse the Borough of Morrisville.'' However, the Borough did not 
discuss the provisions in 49 U.S.C. 31114(a)(2) and 49 CFR 397.71(b)(7) 
that any routing designation may not prevent ``reasonable access'' to a 
motor carrier's terminals or points of pickup and delivery. Nor did the 
Borough dispute the assertions by Med/Waste and other commenters that 
this routing limitation was adopted without notice to the public and an 
opportunity to comment, as required by 49 CFR 397.71(b)(2).
    It is clear that the Borough failed to comply with FMCSA's 
standards in 49 CFR part 397 when it adopted Section 02 of Ordinance 
No. 902, limiting trucks transporting dangerous waste to Route 1. Among 
other failures, the Borough did not follow the required notice and 
comment procedure, and its limitation prevents reasonable access to 
terminals and points of pickup and delivery. Section 02 of Ordinance 
No. 902 is preempted by 49 U.S.C. 5125(c)(1), because the Borough 
failed to comply with FMCSA's standards for establishing highway 
routing designations issued pursuant to 49 U.S.C. 5112(b).

[[Page 37265]]

D. Requirement To Carry Uniform Manifest

    Section 05(a) of Ordinance No. 902 requires that--

    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.

    In doing so, the Borough has extended the requirement to use a 
hazardous waste manifest, in 49 CFR 172.205, to materials that are not 
hazardous wastes. The HMR do not require the use of a specific form 
except for hazardous wastes. See 49 CFR 171.8 (definition of ``shipping 
papers'' as including ``a shipping order, bill of lading, manifest or 
other shipping document serving a similar purpose and containing the 
information required by Secs. 172.202, 172.203 and 172.204'') and 
RSPA's final rule in Docket No. HM-145D, ``Hazardous Waste Manifest; 
Shipping Papers,'' 49 FR 10507 (Mar. 20, 1984) (there is no 
``requirement for the use of a specific form'').
    In its application, Med/Waste stated that, because ``Regulated 
medical waste as defined by the HMR is not a hazardous waste as defined 
in 40 CFR part 262,'' the Borough's manifest requirement conflicts with 
49 CFR 172.205(a). Sanitec and American stated that the requirement to 
transport medical waste under a uniform hazardous waste manifest ``is 
in direct conflict with the current regulatory scheme.'' The Institute 
stated that EPA's ``manifesting requirements apply to hazardous wastes, 
which do not include infectious substances'' and that ``DOT adopted 
RCRA's hazardous waste manifesting regulations under the shipping paper 
requirements, but only for those wastes defined as a hazardous waste 
under federal rules.''
    EPA has stated that the uniform manifest form may be used for 
``wastes defined as hazardous by either the generator's State or the 
consignment State, but not defined as hazardous by EPA or DOT.'' EPA's 
final rule adopting the uniform manifest, 49 FR 10490, 10495 (Mar. 20, 
1984). However, RSPA found that additional requirements by States (or 
localities) for the use of a specific form beyond what is required in 
Federal regulations create ``a substantial burden for both generators 
and transporters.'' 45 FR at 10507. Moreover, EPA regulations 
specifically provide that a State may not ``impose enforcement 
sanctions on a transporter during transportation of the shipment for 
failure of the form to include * * * optional State information 
items.'' 40 CFR 271.10(h)(3).
    Congress amended the HMTA in 1990 to provide that (in the absence 
of a waiver or specific authorization in another Federal law), a local 
requirement on ``the preparation, execution, and use of shipping 
documents related to hazardous material'' is preempted when it is not 
``substantively the same as'' the HMR. 49 U.S.C. 5125(b)(1)(C). In 
adding this provision, Congress specifically found that ``consistency 
in all aspects of [shipping] documents will promote more precise and 
easier identification of any hazardous material, improve systems for 
handling hazardous materials, and enhance capabilities for dealing with 
emergencies associated with the transportation of hazardous 
materials.'' H. Rep. 101-444, Part 1, 101st Cong, 2nd Sess., p. 34.
    Because the HMR does not require the use of any specific form for 
shipments of regulated medical waste (or other hazardous materials that 
are not hazardous wastes), the requirement in Section 05 of Ordinance 
No. 902 that a uniform hazardous waste manifest be carried on any truck 
transporting dangerous waste within the Borough is not substantively 
the same as requirements in the HMR for the ``preparation, execution, 
and use of shipping papers.'' Accordingly, Section 05 of Ordinance No. 
902 is preempted by 49 U.S.C. 5125(b)(1)(C).

E. Discussion of Other Requirements

    In its comments submitted in response to the April 14, 2000 notice, 
Med/Waste referred to additional provisions in Ordinance No. 902 on 
speed limits, accident reporting, time limits on storage of dangerous 
waste, and the posting of a $50,000,000 indemnity bond with the Borough 
Secretary as part of a separate regulatory scheme that should be found 
to be preempted. Other commenters addressed the storage time limits and 
the bond. American also referred to requirements of the Pennsylvania 
Department of Environmental Protection (DEP) for marking and labeling 
containers and vehicles used to transport infectious waste and 
chemotherapeutic waste and requested DOT to find that ``the conflicting 
parts of the Pennsylvania Code should also be preempted.'' No 
determination is being made whether Federal hazardous material 
transportation law preempts these additional requirements because the 
April 14, 2000 notice in the Federal Register did not clearly indicate 
that RSPA and FMCSA would consider these other requirements or 
regulations of Pennsylvania DEP. However, the following general 
discussion is provided with respect to other provisions in Ordinance 
No. 902.
    1. Speed limits. Section 03 of Ordinance No. 902 states that:

    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.

    Med/Waste seems to read this section as authorizing the Borough to 
set specific speed limits for trucks carrying ``dangerous waste'' that 
are different from the speed limits applicable to other vehicles 
traveling on the same roads. However, no other comments addressed this 
section or provided any information on whether and how the Borough is 
implementing this provision.
    Speed limits are a form of local traffic controls that are not 
specifically addressed in the HMR, and they are ``presumed to be 
valid.'' IR-32, City of Montevallo, Alabama Ordinance on Hazardous 
Waste Transportation, 55 FR 36736, 36744 (Sept. 6, 1990), appeal 
dismissed as moot, 57 FR 41165 (Sept. 9, 1992). It is possible that a 
substantially lower speed limit applicable only to trucks carrying one 
or more hazardous materials, as compared to other trucks of similar 
size and weight, could cause congestion and create an obstacle to the 
safe transportation of hazardous materials. However, in the absence of 
``significant relevant evidence,'' including the speed limit for other 
vehicles, RSPA has not found that a local speed limit is preempted. Id.
    2. Accident reporting. Section 05(c) of Ordinance No. 902 states 
that ``Each driver of any such truck [carrying dangerous waste] shall 
immediately report any accident or collision involving his truck to the 
Borough of Morrisville police.'' The Institute stated that this 
requirement is substantively different than the requirement in 49 CFR 
171.15 for a carrier to immediately report certain incidents in 
transportation to the National Response Center, Federal Aviation 
Administration, or Centers for Disease Control.
    In PD-18(R), Broward County, Florida Requirements on Transportation 
of Certain Hazardous Materials, 65 FR 81950 (Dec. 27, 2000), petition 
for reconsideration pending, RSPA recently explained that only written 
incident reporting requirements are preempted when those requirements 
are not

[[Page 37266]]

substantively the same as provisions in the HMR. Rather, Congress did 
not intend the ``substantively the same as'' standard to apply to oral 
incident reporting, and ``RSPA and the courts have consistently held 
that requirements for immediate, oral accident/incident reports for 
emergency response purpose generally are consistent with Federal law 
and regulations and, thus, not preempted.'' Id. at 81955.
    3. Time limits on storage. Section 06 of Ordinance No. 902 provides 
that, ``[e]xcept as provided for by DEP regulations,'' dangerous waste 
may not be stored ``in one place'' within the Borough for more than 24 
hours, and ``in separate places'' for a total of more than 48 hours.
    The Institute stated that this time limit on storage creates an 
obstacle to the handling requirements in the HMR if this restriction is 
applied to storage that is a part of transportation (such as at a 
transfer station). It referred to PD-9(R), California and Los Angeles 
County Requirements Applicable to the On-site Handling and 
Transportation of Hazardous Materials, 60 FR 8774, 8783 (Feb. 15, 
1995), petition for reconsideration pending.
    In PD-9(R), RSPA found that Federal hazardous material 
transportation law preempts a local prohibition against a rail tank car 
being connected for transfer (unloading) operations at a consignee's 
facility for more than 24 hours, unless otherwise approved by the Fire 
Chief, because the local regulation was not substantively the same as 
requirements in the HMR on tank car unloading procedures (which 
contained no time limit). Id. at 8788. In IR-19, Nevada Public Service 
Commission Regulations Governing Transportation of Hazardous Materials, 
52 FR 24404, 24409-10 (June 30, 1987), decision on appeal, 53 FR 11600, 
11603 (April 7, 1988), upheld in Southern Pac. Transp. Co. v. Public 
Serv. Comm'n of Nevada, 909 F.2d 352, 358 (9th Cir. 1990), RSPA also 
found that a prohibition against storage or retention of hazardous 
materials for more than 48 hours without a permit was inconsistent with 
the ``comprehensive series of regulations [in the HMR] relating to the 
storage of hazardous materials incidental to transportation by rail.''
    The decisions in PD-9(R) and IR-19 may not be directly on point, 
because the HMR do not contain the same comprehensive procedures on 
interim storage during highway transportation (other than the 
separation and segregation requirements in 49 CFR 177.848). While the 
HMR prohibit any ``unnecessary delay'' in the highway transportation of 
hazardous materials, ``from and including the time of commencement of 
the loading of the hazardous material until its final unloading at 
destination,'' 49 CFR 177.800(d), specific time limits on interim 
storage of hazardous materials apply only to rail shipments. See 49 CFR 
174.14 (shipments of hazardous materials by rail must be forwarded 
``promptly and within 48 hours (Saturdays, Sundays, and holidays 
excluded),'' or on the first available train when only biweekly or 
weekly service is performed).
    The 10-day period during which a transporter may store hazardous 
wastes at a transfer station without obtaining a permit, in EPA's 
regulations at 40 CFR 263.12, also does not apply to ``dangerous 
wastes'' as defined in Ordinance No. 902, because these are not 
hazardous wastes, as discussed above. Rather, the absence of a more 
specific time limitation in the HMR on interim storage of hazardous 
materials in highway transportation reflects RSPA's view that this type 
of limitation is not necessary or appropriate for hazardous materials 
that are not hazardous wastes. The Supreme Court has found that local 
requirements on transportation may be preempted when the DOT ``has 
decided that no such requirement should be imposed at all.'' Ray v. 
Atlantic Richfield Co., 435 U.S. at 171-72.
    4. Indemnity bond. Under Section 05(d) of Ordinance No. 902, a 
truck carrying dangerous waste may not enter the Borough unless the 
truck driver or owner or consignor of the dangerous waste has deposited 
with the Borough Secretary--

an indemnity bond with limits of not less than $50,000,000 per 
occurrence * * * conditioned to pay all or part of such sum as 
damages or restitution to the Borough of Morrisville unless the 
responsible party 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.

    Med/Waste stated that the requirement for a $50,000,000 indemnity 
bond ``is so excessive that it actually makes the Ordinance 
prohibitive.'' Sanitec and American stated that this requirement 
creates a ``separate regulatory scheme'' that conflicts with the HMR 
and is an obstacle to accomplishing and carrying out the HMR. 
Biosystems stated that the indemnity bond requirement ``is an extreme 
impediment to interstate commerce'' that seems to apply to through 
traffic as well as that ``originating or destined within the borough.'' 
Biosystems also stated that the amount of the bond ``is patently 
unreasonable on its face'' and compared it to ``State environmental'' 
requirements for liability insurance of $1 million to $2 million (for 
those who transport regulated medical waste) or $5 million (for those 
who operate a medical waste treatment facility).
    The Institute stated that the requirement for an indemnity bond is 
actually a ``back door approach to creating routing restrictions,'' 
because it ``is clearly intended to prevent any vehicle transporting 
infectious waste from ever entering the Borough.'' It states that 
$50,000,000 ``far exceeds the worst case scenario for a single vehicle 
transporting infectious waste,'' and echoes the statement of Biosystems 
that closure bonds required by some States for an entire infectious 
waste facility are a small fraction of the amount required by Ordinance 
No. 902.
    Under FMCSA's regulations, transporters of regulated medical waste 
must maintain at least $1,000,000 in insurance, surety bonds, or 
evidence of self-insurance. 49 CFR 387.9 (with exceptions in 387.3(c) 
for intrastate carriers transporting non-bulk packagings and all 
carriers using smaller vehicles, less than 10,000 pounds gross vehicle 
weight rating). Under the required endorsement form, this financial 
responsibility covers bodily injury, property damage, and environmental 
restoration. 49 CFR 387.15.
    In several inconsistency rulings, RSPA found that non-Federal 
requirements for indemnity bonds (or other forms of financial 
responsibility) specifically applicable to hazardous materials, beyond 
those prescribed in 49 CFR part 387, are in conflict with the purposes 
and objectives of the HMTA and the HMR. IR-25, Maryland Heights, 
Missouri Ordinance Requiring Bond for Vehicles, 54 FR 16308, 16311 
(Apr. 21, 1989); IR-18, Prince Georges County, Maryland Code Section 
Governing Transportation of Radioactive Materials, 52 FR 200, 204 (Jan. 
2, 1987); IR-10 (New York State Thruway Authority), IR-11 (Ogdensburg 
Bridge and Port Authority), and IR-15 (Vermont), 49 FR 46632, 46645, 
46647, 46660 (Nov. 27, 1984). In IR-25, 54 FR at 16311, RSPA stated 
that:

    The existence in the U.S. of more than 30,000 local 
jurisdictions, each having the potential to impose such [bonding] 
requirements demonstrates the havoc which could be created if even a 
small percentage of them were to impose such requirements (with 
their inevitable differences). It would

[[Page 37267]]

be extremely difficult for carriers to learn about, let alone comply 
with, such local requirements.

    In PD-1(R), Maryland, Massachusetts, and Pennsylvania Bonding 
Requirements for Vehicles Carrying Hazardous Wastes, 57 FR 58848, 58854 
(Dec. 11, 1992), decision on petitions for reconsideration, 58 FR 32418 
(June 9, 1993), RSPA also found that State requirements to post a bond 
in order to pick up or deliver hazardous waste within the State were 
preempted because of ``the potential for expense and delay associated 
with meeting these requirements, as well as the diversion of traffic to 
other States when the hazardous waste transporter cannot or does not 
post the required bond.'' RSPA's determination as to Massachusetts' 
requirement was overturned by a Federal Court of Appeals in 
Commonwealth of Massachusetts v. United States Dep't of Transp., 93 
F.3d 890, 892 (D.C. Cir. 1996), where the Court found that 
Massachusetts required a performance bond to assure that the 
transporter ``shall faithfully perform all the requirements'' of the 
State. The Court stated that the bond required by Massachusetts was 
``distinct from other forms of liability insurance requirements'' 
because it did not create ``a general fund against which other parties 
may seek indemnity for their claims against the transporter.'' Id.
    The performance bond in the Massachusetts case is distinguishable 
from the indemnity bond required under Ordinance No. 902. In addition, 
as discussed in PD-20(R), Cleveland, Ohio Requirements for 
Transportation of Hazardous Materials, 66 FR 29867, 29870 (June 1, 
2001), RSPA and FMCSA disagree with the conclusion of the Court of 
Appeals in the Massachusetts case that the ``obstacle'' test for 
preemption in 49 U.S.C. 5125(a)(2) only applies to non-Federal 
requirements ``with which a party cannot comply if it complies with the 
HMTA, or [non-Federal] rules that otherwise pose an obstacle to 
fulfilling explicit provisions, not general policies, of HMTA.'' 93 
F.3d at 895.

IV. Ruling

    Federal hazardous material transportation law preempts the 
following provisions in Ordinance No. 902 of the Borough of 
Morrisville, Pennsylvania:
    1. The definitions of ``infectious waste,'' ``hospital waste,'' and 
``dangerous waste'' in Section 01 and the use of the term ``dangerous 
waste'' throughout the ordinance.
    2. The designation of Route 1 (between the Delaware River Toll 
Bridge and the boundary line with the Township of Falls) as the only 
street in the Borough that may be used by trucks transporting dangerous 
waste, in Section 02.
    3. The requirement that each truck transporting dangerous waste 
carry and have available ``the manifest required for transportation of 
such waste under the Resource Conservation and Recovery Act, or federal 
or state regulations implementing that Act,'' in Section 05(a).

V. Petition for Reconsideration/Judicial Review

    In accordance with 49 CFR 107.211(a) and 397.223(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 an 
appropriate district court of the United States * * * not later than 60 
days after the decision becomes final.'' 49 U.S.C. 5125(f).
    This decision will become the final decision of RSPA and FMCSA 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 and 
FMCSA on the petition for reconsideration will be the final decision. 
49 CFR 107.211(d), 397.223(d).

    Issued in Washington, DC, on July 9, 2001.
Robert A. McGuire,
Associate Administrator for Hazardous Materials Safety Research and 
Special Programs Administration.

Brian M. McLaughlin,
Associate Administrator for Policy and Program Development, Federal 
Motor Carrier Safety Administration.
[FR Doc. 01-17572 Filed 7-16-01; 8:45 am]
BILLING CODE 4910-60-P