[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]
 BILLING CODE 4910-60-P