[Federal Register Volume 67, Number 14 (Tuesday, January 22, 2002)]
[Notices]
[Pages 2948-2951]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1443]


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DEPARTMENT OF TRANSPORTATION

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


Research and Special Programs Administration Federal Motor 
Carrier Safety Administration; Morrisville, PA Requirements for 
Transportation of ``Dangerous Waste''

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

ACTION: Decision on petition for reconsideration of administrative 
determination of preemption.

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PETITIONER:  Borough of Morrisville, Pennsylvania.

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 C.F.R. Parts 171-180.

MODES AFFECTED:  Highway.
SUMMARY: The Borough's petition for reconsideration is denied, and RSPA 
and FMCSA reaffirm their determination that 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. Preemption Determination

    Med/Waste, Inc. and its subsidiary, Sanford Motors, Inc. 
(collectively ``Med/Waste''), applied for a determination that Federal 
hazardous material transportation law preempts provisions in Ordinance 
No. 902 of the Borough of Morrisville, Pennsylvania (``Borough''): (1) 
defining ``infectious waste,'' ``hospital waste,'' and ``dangerous 
waste'' and using the term ``dangerous waste''; (2) limiting trucks 
transporting dangerous waste within the Borough to Route 1; and (3) 
requiring trucks carrying dangerous waste to carry and have available 
for inspection the uniform manifest required for hazardous wastes. RSPA 
and FMCSA published the text of Med/Waste's application and a 
responding letter from the Borough in the Federal Register and invited 
interested parties to submit comments. 65 FR 20258 (April 14, 2000). 
Comments were received from Med/Waste, Sanitec, the Medical Waste 
Institute (``Institute''), Biosystems, and American Waste Industries, 
Inc. The Borough did not submit further comments.
    On July 17, 2001, RSPA and FMCSA published in the Federal Register 
their determination on Med/Waste's application in PD-23(RF), 66 FR 
37260. RSPA and FMCSA found that Federal hazardous material 
transportation law preempts:
    (1) the definitions of ``infectious waste,'' ``hospital waste,'' 
and ``dangerous waste'' in Section 01 of Ordinance No. 902 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; 
and the term ``dangerous waste'' because it is used and defined 
throughout the ordinance in a manner that is substantively different 
from the use of the word ``dangerous'' in the HMR;
    (2) the limitation that trucks transporting dangerous waste may 
only travel on Route 1 within the Borough, in Section 02 of Ordinance 
No. 902, because the Borough failed to comply with FMCSA's standards in 
49 CFR part 397 when it adopted a routing limitation; and
    (3) the requirement in Section 05(a) of Ordinance No. 902 that a 
uniform hazardous waste manifest must be carried on any truck 
transporting dangerous waste within the Borough because that 
requirement is not substantively the same as requirements in the HMR 
for the ``preparation, execution, and use of shipping documents,'' 
which do not require the use of any specific form for shipments of 
regulated medical waste (or other materials that are not hazardous 
wastes).
    In Part I.B. of their July 17, 2001 determination, RSPA and FMCSA 
discussed Federal regulation of the transportation of medical waste as 
a hazardous material since 1972 and the fact that ``regulated medical 
wastes must be distinguished from (and are not within the category of) 
`hazardous wastes.' '' 66 FR at 37261. These agencies noted that the 
HMR specifically state that ``A hazardous waste is not subject to 
regulation as a regulated medical waste,'' 49 CFR 173.134(b)(2); and 
that the Pennsylvania Department of Transportation has adopted as State 
law the HMR in 49 CFR parts 171-173 and 178-180 and FMCSA's Federal 
Motor Carrier Safety Regulations in 49 CFR parts 388 and 397.
    In Part II of their determination, RSPA and FMCSA discussed the 
standards for making determinations of preemption under the Federal 
hazardous material transportation law. 66 FR at 37261-62. As explained 
there, unless DOT grants a waiver or there is specific authority in 
another Federal law, a local (or other

[[Page 2949]]

non-Federal) requirement is preempted if:

--It is not possible to comply with both the local requirement and a 
requirement in the Federal hazardous material transportation law or 
regulations;
--The local requirement, as applied or enforced, is an ``obstacle'' to 
accomplishing and carrying out the Federal hazardous material 
transportation law or regulations;
--The local requirement concerns any of five specific subjects and is 
not ``substantively the same as'' a provision in the Federal hazardous 
material transportation law or regulations, including ``the 
designation, description, and classification of hazardous materials,'' 
and the ``preparation, execution, and use of shipping documents''; or
--The locality establishes on or after November 14, 1994, a 
designation, limitation, or requirement related to highway routing of 
hazardous materials that fails to comply with FMCSA's standards in 49 
CFR part 397.

    These preemption provisions stem from congressional findings that 
State, local, or Indian tribe requirements that vary from Federal 
hazardous material transportation law and regulations can create ``the 
potential for unreasonable hazards in other jurisdictions and 
confound[] shippers and carriers which attempt to comply with multiple 
and conflicting * * * regulatory requirements,'' and that safety is 
advanced by ``consistency in laws and regulations governing the 
transportation of hazardous materials.'' Pub. L. 101-615 Sections 2(3) 
& 2(4), 104 Stat. 3244 (Nov. 16, 1990).
    RSPA and FMCSA also explained that their ``[p]reemption 
determinations do not address issues 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.'' 66 FR at 37262. 
RSPA and FMCSA specifically rejected the Borough's argument that the 
Resource Conservation and Recovery Act authorizes a State or locality 
to establish ``more stringent'' requirements applicable to the 
transportation of hazardous materials (including medical waste) than 
the HMR. 66 FR at 37262-63.
    Within the 20-day time period provided in 49 CFR 107.211(a) and 
397.223(a), the Borough filed a petition for reconsideration of PD-
23(RF) and certified that it had mailed a copy of its petition to Med/
Waste and all others who had submitted comments in this proceeding. 
Responses to the Borough's petition for reconsideration were submitted 
by Med/Waste, the Institute, and Sanitec.

B. Petition for Reconsideration

    In its petition, the Borough never takes direct issue with the 
findings in PD-23(RF) that definitions in Ordinance No. 902 and the 
manifest requirement are substantively different than provisions in the 
HMR. Nor does the Borough dispute the finding that its routing 
limitation does not comply with FMCSA's standards in 49 CFR part 397. 
Rather, the Borough asserted that RSPA and FMCSA:
    1. failed to determine ``whether compliance with both federal law 
and the Borough Ordinance is impossible as required by the two-part 
preemption test set forth in Ray v. Atlantic Richfield Co., 435 U.S. 
151, 158 (1978)'' with respect to both the definitions in Section 01 of 
Ordinance No. 902 and the requirement in Section 05(a) to carry the 
uniform hazardous waste manifest.
    2. failed to find ``why the terms of Ordinance 902, though 
different from the HMR, are more stringent than the federal 
regulations,'' with respect to both the definitions in Section 01 and 
the requirement in Section 05(a) to carry the uniform hazardous waste 
manifest.
    3. improperly equated the word ``dangerous'' in Ordinance No. 902 
with ``dangerous when wet'' in the HMR and improperly concluded that 
``dangerous'' in Ordinance No. 902 is a ``synonym for ``hazardous.'''
    4. ``failed to consider that there are alternate routes, outside of 
the Borough of Morrisville,'' that would allow Med/Waste to reach its 
facility on Pennsylvania Avenue, and also failed to ``substantiate how 
the provisions of 49 USC 5112 and 49 USC 31114 apply to highways and 
roads other than interstate highways.''

II. Discussion

A. The Statutory Criteria for Preemption

    The Borough appears to misread and misunderstand the criteria for 
preemption in 49 U.S.C. 5125(a) and (b)(1) of the Federal hazardous 
material transportation law. It misstates the law when it asserts, as a 
ground for reconsideration, that RSPA failed to determine ``whether 
compliance with both federal law and the Borough ordinance is 
impossible.'' Similarly, its claim that RSPA failed to find ``why the 
terms of Ordinance No. 902 * * * are more stringent than Federal 
regulations'' seems to be based on an incorrect assumption that only 
``more stringent'' requirements are preempted by 49 U.S.C. 5125.
1. ``Conflict'' Preemption and the ``Obstacle'' Test
    In the Ray case, the Supreme Court used the word ``or'' to make it 
perfectly clear that the ``dual compliance'' and ``obstacle'' criteria 
are alternate tests of ``conflict'' preemption.\1\ A non-Federal 
standard may be preempted under either of these alternate criteria:
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    \1\ The preemption provisions in 49 U.S.C. 5125 are a form of 
``conflict'' preemption, which differs from ``field'' preemption. 
Field preemption exists when Federal regulation is ``so pervasive as 
to make reasonable the inference that Congress left no room for the 
States to supplement it.'' Ray, 435 U.S. at 157, 94 S. Ct. at 994, 
quoting from Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 
S. Ct. 1146, 1152 (1947). Thus, when there is field preemption, 
Congress has ``completely foreclosed state legislation in a 
particular area.'' Ray, 435 U.S. at 158, 94 S. Ct. at 994.

    A state statute is void to the extent that it conflicts with a 
valid federal statute. A conflict will be found ``where compliance 
with both federal and state regulations is a physical 
impossibility'' * * * or where the state ``law stands as an obstacle 
to the accomplishment and execution of the full purposes and 
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objectives of Congress.''

435 U.S. at 158, 98 S. Ct. at 994 (citations omitted). The five 
specific subject areas where non-Federal requirements must be 
``substantively the same as'' the Federal requirements are simply areas 
where any substantive difference creates an ``obstacle.'' As Congress 
found when it amended the Hazardous Materials Transportation Act (HMTA) 
in 1990 (see Pub. L. 101-615, 104 Stat. 3244), these subject areas

are critical both to the safe transportation of hazardous materials 
and to the free flow of commerce. Thus, requiring near-uniformity by 
both Federal and non-Federal entities is crucial.

H. Report 101-444, Part 1, Committee on Energy and Commerce, 101st 
Cong., 2d Sess., p. 33 (Apr. 3, 1990).
    In this respect, the 1990 amendments to the HMTA reflected prior 
inconsistency rulings by RSPA that consistency is necessary in these 
subject areas. For example, in IR-5, City of New York Administrative 
Code Governing Definitions of Certain Hazardous Materials, 47 FR 51991, 
51994 (Nov. 18, 1982), RSPA discussed its statutory responsibility to 
``designate'' materials as hazardous and found that

differing hazard class definitions present an obstacle to the 
accomplishment of the general Congressional purpose of promoting 
uniformity in hazardous materials transportation [and] * * * to the 
more

[[Page 2950]]

specific purpose of achieving the maximum level of compliance with 
the HMR. * * * [I]f it were to be determined that differing hazard 
class definitions are an appropriate field for local regulation, * * 
* the potential for regulatory chaos is obvious.

Consistent with RSPA's decision in IR-5, Congress stated that 
conflicting designations, descriptions, or classifications of hazardous 
materials ``by non-Federal entities would undermine the consistency 
needed to promote uniform requirements for all hazardous materials 
[and] * * * serve no useful purpose.'' H. Report 101-444, Part 1, p. 
34.
    Congress also stated 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.'' Id. This conclusion followed RSPA's finding in IR-5 that 
``the shipping paper requirements of the HMR are exclusive and that any 
additional shipping paper requirements are inconsistent under the 
HMTA'' because the need to obtain or provide additional information 
``would obviously result in widespread confusion which could lead to 
noncompliance with applicable Federal regulations.'' 47 FR at 51994.
    In this case, there was no need for RSPA to address whether it is 
impossible to comply with both the HMR and provisions in Ordinance No. 
902 defining various terms and requiring a uniform hazardous waste 
manifest.\2\ The classification of hazardous materials in Ordinance No. 
902 and its requirement to carry the uniform hazardous waste manifest 
are not substantively the same as the HMR. Therefore, these provisions 
are preempted under 49 U.S.C. 5125(b)(1)(A) and (C), respectively.
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    \2\ Similarly, in IR-5, RSPA made no finding whether the local 
provisions failed the ``dual compliance'' test but found that 
differing hazard class definitions and additional shipping paper 
requirements are preempted because they ``are an obstacle to the 
accomplishment of the HMTA and its regulations.'' 47 FR at 51994.
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2. The Nature of the Ordinance as More ``Stringent''
    In their July 17, 2001 determination, RSPA and FMCSA discussed and 
rejected the Borough's argument ``that RCRA allows state, regional, and 
local authorities `to control the collection and disposal of solid 
waste as one of their primary functions.' '' 66 FR at 37262. RSPA and 
FMCSA explained that medical wastes are not within the category of 
hazardous wastes regulated under RCRA and that the provision in 42 
U.S.C. 6929 allowing ``more stringent'' provisions in a State-
authorized program does not authorize transportation requirements 
otherwise preempted by 49 U.S.C. 5125. Id. at 37262-63.
    In its petition for reconsideration, the Borough advances an 
argument that a non-Federal transportation requirement must be ``more 
stringent'' in order to be preempted. However, that is not one of the 
criteria in 49 U.S.C. 5125. Under that section, a requirement of a 
State, political, subdivision of a State, or Indian tribe is preempted 
when:

--It does not meet the dual compliance or obstacle criterion in 
subsection (a);
--It concerns any of five subject matter areas listed in subsection 
(b)(1) and is not substantively the same as a provision in the Federal 
hazardous material transportation law or the HMR; or
--It is a highway routing designation, limitation, or requirement 
established after November 1994 and does not comply with FMCSA's 
standards issued under 49 U.S.C. 5112(b), as provided in 49 U.S.C. 
5125(c)(1).

    It is not necessary to find that the Ordinance's provisions are 
``more stringent'' than the HMR. However, the plain language of the 
Ordinance would support such a finding. As discussed in the July 17, 
2001 determination, Ordinance No. 902 applies to substances that ``are 
not regulated under the HMR,'' 66 FR at 37263. The manifest requirement 
in Section 05(a) is also an additional requirement, above and beyond 
the requirements for shipping papers in the HMR. In this manner, 
Ordinance No. 902 clearly contains more stringent requirements than the 
HMR's provisions on regulated medical waste. The Borough's argument on 
this issue is both irrelevant and incorrect.

B. The Use of the Word ``Dangerous'' in the Ordinance

    The Borough is wrong when it asserts, in its petition for 
reconsideration, that RSPA equated the word ``dangerous'' in Ordinance 
No. 902 with ``dangerous when wet'' in the HMR or concluded that 
``dangerous'' in the Ordinance is a synonym for ``hazardous'' in the 
HMR. Rather, it is precisely the opposite. RSPA specifically found that 
``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.'' 66 FR at 37263.
    As explained in the July 17, 2001 determination, ``in the overall 
context of the HMR, `dangerous' is a synonym for the word `hazardous,' 
'' and the ``HMR use the term `hazardous materials' in the same manner 
as the term `dangerous goods' is used in international regulations.'' 
Id. However, the word ``dangerous'' is used differently in Ordinance 
No. 902, and ``the term `dangerous waste' does not correspond to the 
category of `hazardous waste' in the HMR.'' Id. Thus, the Borough's 
petition has it backward. It was not RSPA who equated ``dangerous'' in 
the Ordinance to ``hazardous'' in the HMR; it is the Borough that 
failed to make that equation in its Ordinance and, therefore, created a 
definition and classification of hazardous materials that are preempted 
because they are not substantively the same as the HMR's use of the 
word dangerous to define and classify hazardous materials.

C. The Applicable Federal Highway Routing Standards

    Although the Borough now claims in its petition for reconsideration 
that Med/Waste had ``reasonable access'' to its facility over 
``alternate routes, outside of the Borough of Morrisville,'' it 
provides no evidence to support this claim. In addition, the Borough 
does not show that it actually considered either (a) the existence of 
these alternate routes and the effect of requiring carriers to use 
those alternate routes or (b) any of the other conditions in 49 CFR for 
the establishment of a highway routing limitation after November 1994, 
including:

--A finding that this limitation ``enhances public safety'' within the 
Borough and in neighboring jurisdictions through which vehicles 
carrying ``dangerous waste'' must travel if those vehicles are limited 
to Route 1 within the Borough (49 CFR 397.71(b)(1));
--The required notice to the public, consideration of a public hearing, 
and the opportunity of the public to submit comments on the original 
proposal to limit vehicles carrying ``dangerous waste'' within the 
Borough to Route 1 (49 CFR 397.71(b)(2));
--Notice to and consultation with ``officials of affected political 
subdivisions, States and Indian tribes,'' and any other parties that 
are affected by the routing limitation, and completion of the routing 
designation process within 18 months of the notice to the public or 
notice to the other affected jurisdictions (49 CFR 397.71(b)(3), (6));
--Assurance of ``through highway routing * * * between adjacent areas'' 
(49 CFR 397.71(b)(4));

[[Page 2951]]

--A finding that there will not be an unreasonable burden on commerce 
and consideration whether there was agreement by any other affected 
State (49 CFR 397.71(b)(5)); and
--Consideration of other specific factors besides the existence of 
alternate routes and the burden on commerce, including population 
density, emergency response capabilities, continuity of routes, 
potential delays in transportation, and congestion and accident history 
(49 CFR 397.71(b)(9)).

    Because it is clear that the Borough failed to meet these 
conditions and did not comply with FMCSA's standards in 49 CFR part 
397, its limitation of vehicles carrying dangerous waste to Route 1 is 
preempted. Moreover, reconsideration of this determination is not 
warranted on the Borough's claim that DOT somehow failed to 
``substantiate how the provisions of 49 USC 5112 and 49 USC 31114 apply 
to provisions and roads other than interstate highways.''
    The authority of Congress to regulate interstate and intrastate 
commerce is not limited to traffic on interstate highways, nor is the 
authority of DOT in 49 U.S.C. 5112(b) to ``prescribe by regulation 
standards for States and Indian tribes to use'' in establishing a 
highway routing limitation limited to the transportation of hazardous 
materials on interstate highways. Similarly, 49 U.S.C. 31114 limits the 
restrictions that a State may place on a carrier's ``access'' between 
interstate highways and terminals or other facilities, all of which are 
presumably not located on an interstate highway itself. Accordingly, 
this ground for reconsideration of the July 17, 2001 determination has 
no more basis than any of the other positions taken by the Borough in 
its petition.

D. Expansion of the Preemption Determination

    In its comment on the Borough's petition for reconsideration, Med/
Waste asked RSPA and FMCSA ``to consider complete preemption of the 
entire Ordinance 902.'' RSPA and FMCSA decline to expand or extend the 
scope of their July 17, 2001 determination for the same reason that 
they previously declined to determine whether specific provisions not 
originally challenged in Med/Waste's application are preempted--because 
the notice inviting public comment on that application ``did not 
clearly indicate that RSPA and FMCSA would consider these other 
requirements.'' 66 FR at 37265. Nonetheless, it would seem that the 
Borough would be precluded from enforcing any provision in Ordinance 
No. 902 that applies to ``infectious waste,'' ``hospital waste,'' or 
``dangerous waste,'' because the definitions of these terms are 
preempted and the use of the term ``dangerous waste'' throughout the 
Ordinance is also preempted.

III. Ruling

    For the reasons set forth above, the Borough's petition for 
reconsideration is denied. RSPA and FMCSA incorporate and reaffirm the 
determination that 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; and
    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).

IV. Final Agency

    In accordance with 49 CFR 107.211(d) and 397.223(d), this decision 
constitutes the final agency action by RSPA and FMCSA on Med/Waste's 
application for a determination of preemption as to provisions in 
Ordinance No. 902 of the Borough of Morrisville, Pennsylvania. Any 
party to this proceeding may bring a civil action in an appropriate 
district court of the United States for judicial review of this 
decision not later than 60 days after publication of this decision in 
the Federal Register.

    Issued in Washington, D.C. on January 15, 2002.
Robert A. McGuire,
Associate Administrator for Hazardous Materials Safety, Research and 
Special Programs Administration.
Joseph M. Clapp,
Administrator, Federal Motor Carrier Safety Administration.
[FR Doc. 02-1443 Filed 1-18-02; 8:45 am]
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