[Federal Register Volume 84, Number 187 (Thursday, September 26, 2019)]
[Notices]
[Pages 50882-50884]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20880]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
[Docket No. PHMSA-2016-0163; PDA-39(R)]
Hazardous Materials: Oregon Hazardous Waste Management Regulation
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
U.S. Department of Transportation (DOT).
ACTION: Notice of rejection of application for an administrative
determination of preemption.
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SUMMARY: NORA, An Association of Responsible Recyclers, has petitioned
for an administrative determination that the Hazardous Materials
Transportation Act (HMTA) preempts an Oregon hazardous waste regulation
to the extent that Oregon interprets the regulation as imposing a
strict liability standard on transporters of hazardous waste. Because
the HMTA's preemption provisions--including the provision granting the
Department the authority to make administrative preemption
determinations--expressly do not apply to a ``mental state . . .
utilized by a State . . . to enforce a requirement applicable to the
transportation of hazardous material,'' PHMSA lacks authority to act on
NORA's petition. PHMSA therefore rejects the petition.
FOR FURTHER INFORMATION CONTACT: Vincent Lopez, Office of Chief Counsel
(PHC-10), Pipeline and Hazardous Materials Safety Administration, U.S.
Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC
20590; telephone No. 202-366-4400; facsimile No. 202-366-7041.
SUPPLEMENTARY INFORMATION:
I. Background
NORA, An Association of Responsible Recyclers (NORA) has applied to
PHMSA for a determination that the federal Hazardous Materials
Transportation Act (HMTA), 49 U.S.C. 5101 et seq., preempts Oregon
Administrative Rule (OAR) 340-100-0002(1), as applied to transporters
of hazardous waste. Specifically, NORA states that the Oregon
Environmental Quality Commission (OEQC) interprets the Oregon
regulation--which adopts certain regulations of the United States
Environmental Protection Agency (EPA), including EPA's regulation
requiring transporters to receive a manifest before transporting
hazardous waste, 40 CFR 263.20(a)(1)--as imposing a strict liability
standard on transporters of hazardous waste. According to NORA, under
Oregon law, ``the transporter exercising reasonable care may not rely
on the information provided by the generator and instead must be held
to a strict liability standard'' (emphasis omitted). PHMSA invited
public comment on NORA's application on January 24, 2017, see 82 FR
8257. For the reasons set forth below, PHMSA has concluded that it
lacks authority with respect to NORA's application, and therefore
rejects it.
[[Page 50883]]
II. Oregon Law
The legal framework that governs hazardous waste consists of
overlapping federal and state authority. At the federal level, EPA,
under authority granted by the Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. 321 et seq., has promulgated regulations to control
hazardous waste. This includes the generation, transportation,
treatment, storage, and disposal of hazardous waste. Any state may seek
EPA authorization to administer and enforce a hazardous waste program.
In Oregon, EPA has authorized the state to administer its own hazardous
waste program, which it does through the Department of Environmental
Quality and the OEQC.
The relevant Oregon regulation, OAR 340-100-0002 Adoption of United
States Environmental Protection Agency Hazardous Waste and Used Oil
Management Regulations, states in part, ``[e]xcept as otherwise
modified or specified by OAR 340, divisions 100 to 106, 109, 111, 113,
120, 124 and 142, the Commission adopts by reference, and requires
every person subject to ORS 466.005 to 466.080 and 466.090 to 466.215,
to comply with the rules and regulations governing the management of
hazardous waste, including its generation, transportation, treatment,
storage, recycling and disposal, as the United States Environmental
Protection Agency prescribes in 40 CFR parts 260 to 268, 270, 273 and
Subpart A and Subpart B of Part 124, . . . .'' OAR 340-100-0002(1).
The EPA manifest requirement, 40 CFR 263.20(a)(1), which is one of
the regulations that Oregon has adopted, reads in part, ``[a]
transporter may not accept hazardous waste from a generator unless the
transporter is also provided with a manifest . . . signed in accordance
with the requirement of Sec. 263.23 . . . .'' 40 CFR 263.20(a)(1).
As noted above, NORA states that under OEQC's interpretation of
this requirement, a ``transporter exercising reasonable care may not
rely on the information provided by the generator and instead must be
held to a strict liability standard.'' The Oregon Supreme Court has
recently upheld OEQC's interpretation. See Oil Re-Refining Co. v.
Envtl. Quality Comm'n, 388 P.3d 1071 (Or. 2017).
III. Federal Preemption
PHMSA has the authority under the HMTA to preempt state law.
Generally, the HMTA preemption standards preclude non-federal
governments from imposing requirements applicable to hazardous
materials transportation if (1) complying with the non-Federal
requirement and the Federal requirement is not possible; or (2) the
non-Federal requirement, as applied and enforced, is an obstacle to
accomplishing and carrying out the Federal requirement.
Furthermore, unless it is authorized by another federal law or a
waiver of preemption from the Secretary of Transportation, a non-
federal requirement applicable to any one of several specified covered
subjects is preempted if it is not substantively the same as the HMTA,
the HMR, or a hazardous materials transportation security regulation or
directive issued by the Secretary of Homeland Security. The five
subject areas include: The designation, description, and classification
of hazardous material; the packing, repacking, handling, labeling,
marking, and placarding of hazardous material; the preparation,
execution, and use of shipping documents related to hazardous material
and requirements related to the number, contents, and placement of
those documents; the written notification, recording, and reporting of
the unintentional release in transportation of hazardous material and
other written hazardous materials transportation incident reporting
involving State or local emergency responders in the initial response
to the incident; and the designing, manufacturing, fabricating,
inspecting, marking, maintaining, reconditioning, repairing, or testing
a package, container, or packaging component that is represented,
marked, certified, or sold as qualified for use in transporting
hazardous material in commerce. See 49 U.S.C. 5125(a) and (b).
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).
Notwithstanding these preemption standards, Congress limited the
applicability of HMTA preemption with respect to non-federal
enforcement standards. For the purposes of this proceeding, the
relevant portion of the statute is 49 U.S.C. 5125(h), and it reads as
follows: ``Non-Federal enforcement standards.--This section does not
apply to any procedure, penalty, required mental state, or other
standard utilized by a State, political subdivision of a State, or
Indian tribe to enforce a requirement applicable to the transportation
of hazardous material.'' 49 U.S.C. 5125(h).
IV. NORA's Application
NORA contends that OEQC's ``strict liability'' interpretation of
the Oregon regulation conflicts with 49 CFR 171.2(f), a provision of
the HMR providing that ``[e]ach carrier who transports a hazardous
material in commerce may rely on information provided by the offeror of
the hazardous material or a prior carrier, unless the carrier knows or,
a reasonable person, acting in the circumstances and exercising
reasonable care, would have knowledge that the information provided by
the offeror or prior carrier is incorrect.'' NORA presents three
specific arguments. First, NORA contends that it is not possible to
comply with both the Oregon rule and the federal regulation because the
``HMTA regulation requires the transporter to exercise reasonable
care'' while Oregon's strict liability interpretation does not. Next,
NORA argues that Oregon's strict liability standard creates an obstacle
to carrying out the federal regulation, since it discourages the
exercise of reasonable care. Furthermore, NORA opines that the State's
inconsistent strict liability standard will encourage the
misclassification of hazardous material. Finally, NORA states that ``a
strict liability standard is not `substantively the same' as a
reasonable care liability standard.'' NORA notes that ``under Oregon's
interpretation, a transporter who satisfies the reasonable care
standard in section 171.2(f) would nonetheless be strictly liable for
the generator's waste mischaracterization.''
V. Decision
As noted above, 49 U.S.C. 5125 sets out standards for determining
whether state and local laws are preempted, and authorizes the
Secretary of Transportation to make administrative preemption
determinations. Section 5125, however, expressly ``does not apply to
any procedure, penalty, required mental state, or other standard
utilized by a State . . . to enforce a requirement applicable to the
transportation of hazardous material.'' 49 U.S.C. 5125(h); see also
H.R. Rep. No. 109-203, at 1083 (2005) (noting that the amendment
``clarifies that the Secretary's preemption authority does not apply to
a procedure, penalty, required mental state, or other standard used by
a State, political subdivision of a State, or Indian tribe to enforce
hazardous material transportation requirements.''). H.R. Rep. No. 109-
203, at 1083 (2005).
NORA's application argues that Oregon's imposition of a ``strict
[[Page 50884]]
liability'' standard--a ``required mental state''--is preempted by the
HMTA. 49 U.S.C. 5125(h) expressly specifies that the HMTA's preemption
provision does not apply to such a claim, and that PHMSA lacks
authority to make a determination with respect to such a claim. PHMSA
therefore rejects NORA's application.
Issued in Washington, DC, on September 20, 2019.
Paul J. Roberti,
Chief Counsel, Pipeline and Hazardous Materials Safety Administration.
[FR Doc. 2019-20880 Filed 9-25-19; 8:45 am]
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