# Petition for Writ of Certiorari — Tennessee v. Department of Transportation, Research & Special Programs Administration

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 981

## Text

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OS 111 JUL 18 2003
No.

In The
Supreme Court of the United States

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STATE OF TENNESSEE, and
TENNESSEE DEPARTMENT OF
ENVIRONMENT AND CONSERVATION,

Petitioners,
v. .

UNITED STATES DEPARTMENT OF
TRANSPORTATION, RESEARCH AND
SPECIAL PROGRAMS ADMINISTRATION,
and ASSOCIATION OF WASTE
HAZARDOUS MATERIALS TRANSPORTERS,
Respondents.
*
On Petition For A Writ Of Certiorari

To The United States Court Of Appeals
For The Sixth Circuit

¢

PETITION FOR A WRIT OF CERTIORARI
4

PAUL G. SUMMERS
Attorney General and Reporter
State of Tennessee

MICHAEL E. MOORE
Solicitor General

BARRY TURNER*

Deputy Attorney General
425 Fifth Avenue North
Nashville, Tennessee 37243
(615) 532-2586

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Under the Hazardous Materials Transportation Act,
specifically 49 U.S.C. § 5125(d\(1), a private party with
standing may commence an administrative proceeding
against a State to obtain a decision from the United States
Department of Transportation about whether the State’s
law is preempted. Congress intended the agency's preemp-
tion decision to be binding on the State. Is a § 5125(d)(1)
proceeding agency adjudication barred by state sovereign
immunity under this Court’s decision in Federal Maritime
Comm’n v. South Carolina State Ports Authority, 535 U.S.

743 (2002)?

li

LIST OF PARTIES

All of the parties to this civil case are named in the cap-
tion.

There are no entities to report or list in accordance with
Supreme Court Rule 29.6.

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TABLE OF CONTENTS

Page
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SNE SAM WIR RIIEE 0. 0consescusnssesnssesnsererssysossocssess.ceec., ii
TABLE OF AUTHORITIES 00.0.0... cccoceccesceseececcs iv
CITATIONS OF THE OPINIONS AND ORDERS
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STATEMENT OF THE BASIS FOR JURISDIC-
SE SELSRN NL Sernntinnsersextsnewvovsksevesessebeusécneasiasesea.,... 1
CONSTITUTIONAL PROVISIONS INVOLVED IN
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STATEMENT OF THE CASE... ooeccececcccecececcc 2
REASONS FOR GRANTING THE 5 ee 8
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iv
TABLE OF AUTHORITIES
Page
CASES
Alden vu. Maine, 527 U.S. 706 (1999) .............ccceeeeeeees passim
Allstate Insurance Co. v. Phillips Leasing Co., 214
PB. BIS CHD. GBD. TB). ecvecvscericcnsessensnsosrsccosevevesens 17
Colorado Public Utilities Comm’n v. Harmon, 951
PG, LETS CRG Cie. TOBE) ccc ecescccerccesevsshocnssniaconsesssoseesess 11
Federal Maritime Comm’n v. South Carolina State
Ports Authority, 535 U.S. 743 (2002)................eeee passim
Pension Benefit Guaranty Corp. v. LTV Corp., 496
cae, Se ER creiinnnrencissersdhichinkneincesiniaaiocaomaaomaana 15
Puerto Rico Aqueduct and Sewer Authority uv.
Metcalf & Eddy, inc., 506 U.S. 139 (1993) .......... eee 2
Seminole Tribe of Florida v. Florida, 517 U.S. 44
(BEEF icisscinnisunisinintnisncesdininsiasianionsinatninuneenianaasadppadiniibaninneamaicaaian 19
South Carolina State Ports Authority v. Federal
Maritime Comm’n, 243 F.3d 165 (4th Cir. 2001),
Oh, GEE GB. TOD COE) ane yncerssessnsscennsrersensocssssseesasovsives 18
Tennessee Dept. of Human Services v. U.S. Dept. of
Education, 979 F.2d 1162 (6th Cir. 1992) ......... eee 7
Tennessee v. U.S. Dept. of Transportation, 326 F.3d
Fe Ce Ge UD eatideeniccctesnncerensncsenseesesncsnabemeninien passim
Ulman v. United States, 558 F.2d 1 (Cl. Ct. 1977)............ 24
Yesler Terrace Community Council v. Cisneros, 37
Pe GE Ce Ge Be iecesencctntcnintintccncnnnenstunevicnensneneinanin 21

Witherow v. Larken, 421 U.S. 35 (1975) ......... cee eee eee 18, 19

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*

Vv

TABLE OF AUTHORITIES - Continued

Page

FEDERAL STATUTES AND RULES
Put L. 101-615, § 13, 104 Stat. 3244, 3260 (1990)........... 10
GUS.C. § 55164) (1906)... .sesccsssssssesessesesseosesseoseoessss..... 21
OB. FROG) (SOO ooo cesssrssostiinrcetdornessnccesccecc tl 21
5 U.S.C. § 551(7) (1996) ..........sccssssssessssssssssssssssseeseseeecce.... 21
5 U.S.C. § 553(e) SUED ,

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ccd habs eR Dost eat Selanne te Rit

App. 61

in good faith. Plaintiffs also sued the Governor of Florida,
under Ex Parte Young, seeking a similar injunction.

The State of Florida argued that the Eleventh
Amendment barred any action against it, in spite of the
fact that the IGRA contained an explicit statement which
purported to abrogate the State’s Eleventh Amendment
immunity. The IGRA had been passed pursuant to the
Indian commerce clause (U.S. Const., Art. I, § 8, cl. 3),
which gives Congress the power to “regulate Commerce
... with Indian Tribes.”

In shifting to a dramatic new direction in Eleventh
Amendment jurisprudence, the Seminole Tribe Court
overruled Union Gas and held that Congress, acting under
Article I of the Constitution, simply does not have the
power to abrogate a State’s “Eleventh Amendment”
immunity, no matter how clearly it expresses its desire to
do so.

Chief Justice Rehnquist began the Court’s analysis as
follows:

Although the text of the [Eleventh] Amendment
would appear to restrict only the Article III di-
versity jurisdiction of federal courts, “we have
understood the Eleventh Amendment to stand
not so much for what it says, but for the presup-
position ... which it confirms.” ... That presup-
position, first observed over a century ago in
[Hans], has two parts: first, that each State is a
sovereign entity in our federal system; and sec-
ond, that “(i]t is inherent in the nature of sover-
eignty not to be amenable to the suit of an
individual without its consent,” ... For over a
century we have reaffirmed that federal jurisdic-
tion over suits against unconsenting States “was

App. 62

not contemplated by the Constitution when es-
tablishing the judicial power of the United
States.”

517 U.S. at 54, 134 L.Ed. 2d at 265 (citations omitted).

The Court quickly concluded that the IGRA clearly
expressed Congress’ intent to abrogate the states’ sover-
eign immunity. The Court then turned to the question
whether the IGRA was passed “pursuant to a valid exer-
cise of [congressional] power.” Plaintiffs apparently had
argued that this issue should be viewed with some “char-
ity” by the Court, because they were seeking only prospec-
tive injunctive relief. In response, the Court stated as
follows:

Petitioner suggests that one consideration weigh-
ing in favor of finding the power to abrogate here
is that the Act authorizes only prospective in-
junctive relief rather than retroactive monetary
relief. But we have often made it clear that the
relief sought by a plaintiff suing a State is irrele-
vant to the question whether the suit is barred
by the Eleventh Amendment... . We think it fol-
lows a fortiori from this proposition that the type
of relief sought is irrelevant to whether Congress
has power to abrogate States’ immunity. The
Eleventh Amendment does not exist solely in or-
der to “preven(t] a federal court judgment that
must be paid out of a State’s treasury... ; it also
serves to avoid “the indignity of subjecting a
State to the coercive process of judicial tribunals
at the insistence of private parties. ...”

517 U.S. at 58, 134 L.Ed. 2d at 267 (citations omitted).

App. 63

The Seminole Tribe Court continued its analysis by
noting that the Court had upheld Congressional abroga-
tion of the States’ sovereign immunity only in two situa-
tions: (1) cases in which Congress had acted pursuant to
§5 of the Fourteenth Amendment” and (2) one case,
Pennsylvania v. Union Gas Co., supra, in which Congress
had acted under the Interstate Commerce Clause. 517
U.S. at 59, 134 L.Ed. 2d at 268. The Court found that no
“principled distinction” could be drawn between the Indian
Commerce Clause and the Interstate Commerce Clause.
After discussing the fact that the decision in Union Gas
was a plurality decision, that it was a “deeply fractured
decision,” that it “essentially eviscerated our decision in
Hans,” and that it had “proved to be a solitary departure
from established law,” the Court specifically overruled
Union Gas. 517 U.S. at 64-66, 134 L.Ed. 2d at 271-73.

Next, the Seminole Tribe Court gave a show of sup-
port to Hans and its interpretation of the Eleventh
Amendment:

The dissent mischaracterizes the Hans opinion.
That decision found its roots not solely in the
common law of England, but in the much more
fundamental “jurisprudence in all civilized na-
tions.”

The dissent’s lengthy analysis of the text of the
Eleventh amendment is directed at a straw man

" Section 5 of the Fourteenth Amendment provides, “The Congress
shall have power to enforce, by appropriate legislation, the provisions of
this article.”

App. 64

— we long have recognized that blind reliance
upon the text of the Eleventh Amendment is “to
strain the Constitution and the law to a con-
struction never imagined or dreamed of.” ... The
text dealt in terms only with the problem pre-
sented by the decision in Chisholm; in light of
the fact that the federal courts did not have fed-
eral question jurisdiction at the time the
Amendment was passed (and would not have it
until 1875), it seems unlikely that much thought
was given to the prospect of federal-question ju-
risdiction over the States.

517 US. at 69-70, 134 L.Ed. 2d/at 275."

After finding that Plaintiffs’ claims against the State
of Florida were barred by the Eleventh Amendment, the
Court proceeded to analyze Plaintiffs’ claims for injunctive

2 As discussed above, the rationale of Hans rests in large part
upon the assumption that, if the federal courts had been able to
exercise general federal question jurisdiction at the time the Eleventh
Amendment was written, the Amendment would have specifically
prohibited a citizen from suing his own state. See discussion at note 6,
supra. The Seminole Tribe Court’s statement that not “much thought”
was given to this point seemingly indicates that Hans rests upon a
faulty assumption.

This statement on the part of the majority, however, was seriously
challenged by Justice Souter in his dissent, wherein he noted that the
first post-Chisholm draft of the Eleventh Amendment basically
provided that “no state” could be “made a party defendant” in any
federal court in a suit brought by “any person or persons.” 517 U.S. at
110-111, 134 L.Ed. 2d at 300-301. He noted that Congress took no
action on that draft, and he concluded that “the Amendment as
ultimately adopted two years later could hardly have been meant to
limit federal-question jurisdiction, or it would never have left the States
open to federal-question suits by their own citizens.” 517 U.S. at 112,
134 L.Ed. at 301.

App. 65

relief against the Governor of Florida, brought under Ex
Parte Young. In doing so, the court announced another
significant restriction of the Ex Parte Young doctrine. The
Court found that Congress had crafted an “intricate
remedial scheme” in the IGRA. In considering this reme-
dial scheme (which the Court had just held could not be
enforced against the State of Florida because it violated
the Eleventh Amendment), the Court noted that the
sanctions set forth therein were “quite modest,” when
compared with the “more complete and more immediate
relief [that] would be available under Ex Parte Yuung.”
517 U.S. at 75, 134 L.Ed. 2d at 278-79. The Court took this
fact as an indication that Congress, in providing for only
“modest” relief in the IGRA, did not wish to allow a “more
complete” remedy under Ex Parte Young. Therefore,
despite the fact that Plaintiff could not enforce the IGRA
remedies, the Court held that Plaintiff could not maintain
an action against the Governor of Florida under Ex Parte
Young. Id.

While four Justices wrote approximately 70 pages of
dissent in Seminole Tribe, those views are now clearly the
minority opinion, and they will not be discussed herein.

H. The Application of the Doctrine of Sovereign
Immunity to Federal Claims Brought in State
Court and Further Expansion of the Doctrine.

In the wake of Seminole Tribe, the following results
were quite clear. First, the “Eleventh Amendment” prohib-
ited Plaintiffs’ lawsuit for injunctive relief against the
State of Florida. Regardless of its expressed intent, Con-
gress simply lacked the power, when legislating under
Article I, to override a state’s sovereign immunity. Second,
Plaintiffs could not maintain an Ex Parte Young action

App. 66

against the Governor of Florida even for prospective
injunctive relief. Thus, it seemed that Congress had
created a federal right in favor of Plaintiffs, but Plaintiffs
had no federal forum in which to attempt to vindicate that
right. The possibility remained open, however, that future
plaintiffs could sue a state in state court, where the
eleventh Amendment would not apply.

That door was shut some three years later with the
Supreme Court's decision in Alden v. Maine, 527 U.S. __,
144 L.Ed. 2d 636 (1999). In Alden, a group of state em-
ployees had sued the State of Maine in federal court for
alleged violations of the overtime provisions of the Fair
Labor Standards Act (FLSA). While that lawsuit was
pending, the Supreme Court decided Seminole Tribe.

Applying Seminole Tribe, the federal district court
had dismissed Plaintiffs’ FLSA claims, which dismissal
was affirmed by the First Circuit. Because Plaintiffs were
seeking money damages, they could not bring an Ex Parte
Young action. Therefore, they tried the only route that was
left open following Seminole Tribe — they filed suit in state
court alleging a violation of the FLSA. The state trial court
dismissed the lawsuit on the basis of sovereign immunity.
The Supreme J udicial Court of Maine affirmed that
decision.

The U.S. Supreme Court granted certiorari and
affirmed. Because the broad and sweeping language set
forth in Alden bears directly on the issue at hand, the
Court believes it appropriate to quote extensively from
that decision. The Alden Court began its analysis as
follows:

The Eleventh Amendment makes explicit refer-
ence to the States’ immunity from suits

App. 67

“commenced or prosecuted against one of the
United States by Citizens of another State or by
Citizens or Subjects of any Foreign State.” ...
We have, as a result, sometimes referred to the
States’ immunity from suit as “Eleventh
Amendment immunity.” The phrase is convenient
shorthand but something of a misnomer, for the
sovereign immunity uf the States neither derives
from nor is limited by the terms of the Eleventh
amendment. Rather, as the Constitution’s struc-
ture, and its history, and the authoritative inter-
pretations by this Court make clear, the States’
immunity from suit is a fundamental aspect of
the sovereignty which the States enjoyed before
the ratification of the Constitution, and which
they retain today (either literally or by virtue of
their admission into the Union upon an equal
footing with the other States) except as altered
by the plan of the Convention or certain constitu-
tional Amendments. 7

Although the Constitution establishes a National
Government with broad, often plenary authority
over matters within its recognized competence,
the founding document “specifically recognizes
the States as sovereign entities.” ... Various tex-
tual provisions of the Constitution assume the
States’ continued existence and active participa-
tion in the fundamental processes of govern-
ance.... The limited and enumerated powers
granted to the Legislative, Executive, and Judi-
cial Branches of the National Government, more-
over, underscore the vital role reserved to the
States by the constitutional design.... Any
doubt regarding the constitutional role of the
States as sovereign entities is removed by the
Tenth Amendment which, like the other provi-
sions of the Bill of Rights, was enacted to allay

App. 68

lingering concerns about the extent of the na-
tional power. The Amendment confirms the
promise implicit in the original document: “The
powers not delegated to the United States by the
Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the
people.”

The federal system established by our Constitu-
tion preserves the sovereign status of the States
in two ways. First, it reserves to them a substan-
tial portion of the Nation’s primary sovereignty,
together with the dignity and essential attributes
inhering in that status. The States “form distinct
and independent portions of the supremacy, no
more subject, within their respective spheres, to
the general authority than the general authority
is subject to them, within its own sphere.”

The States thus retain “a residuary and inviola-
ble sovereignty.” ... They are not relegated to
the role of mere provinces or political corpora-
tions, but retain the dignity, though not the full
authority, of sovereignty.

527 U.S. at ___, 144 L.Ed. 2d at 652-53.

The Court has been consistent in interpreting
the adoption of the Eleventh Amendment as con-
clusive evidence “that the decision in Chisholm
was contrary to the well-understood meaning of
the Constitution,” .. ., and that the views ex-
pressed by Hamilton, Madison, and Marshall
during the ratification debates, and by Justice

App. 69

Iredell in his dissenting opinion in Chisholm, re-
flect the original understanding of the Constitu-
tion.... In accordance with this understanding,
we have recognized a “presumption that no
anomalous and unheard-of proceedings or suits
were intended to be raised up by the Constitution
— anomalous and unheard of when the Constitu-
tion was adopted.” ... As a consequence we have
looked to “history and experience, and the estab-
lished order of things,” ... rather than “adhering
to the mere letter” of the Eleventh Amendment,

. in determining the scope of the States’ consti-
tutional immunity from suit.

[Our] holdings reflect a settled doctrinal under-
standing consistent with the views of the leading
advocates of the Constitution’s ratification, that
sovereign immunity derives not from the Elev-
enth Amendment but from the structure of the
original Constitution itself.... The Eleventh
Amendment confirmed rather than established
sovereign immunity as a constitutional principle;
it follows that the scope of the States’ immunity
from suit is not demarcated by the text of the
Amendment alone but by fundamental postulates
implicit in the constitutional design.

In this case we must determine whether Con-
gress has the power, under Article I, to subject
nonconsenting States to private suits in their
own courts. As the foregoing discussion makes
clear, the fact that the Eleventh Amendment by
its terms limits only “the Judicial power of the
United States” does not resolve the question. To
rest on the words of the Amendment alone would

_

App. 70

be to engage in the type of a historical literalism
we have rejected in interpreting the scope of the
States’ sovereign jmmunity since the discredited
decision in Chisholm... .

527 U.S. at ___; 144 L.Ed. 2d at 661-63 (citations omitted).

The four dissenters in Alden relied upon the Suprem-
acy Clause, U.S. Const., Art. VI, for the proposition that,
when Congress enacts legislation subjecting the states to
suit, such legislation necessarily overrides the states’
sovereign immunity. The dissent also relied heavily on the
fact that the Eleventh Amendment speaks only to the
“judicial power of the United States,” and, thus, it cannot
possibly be applicable to an action filed in state court by
an individual seeking to vindicate a federal right.

The majority responded to the first point with an
argument somewhat akin to the reasoning of Ex Parte
Young that, when Congress enacts laws that do not
“accord with the constitutional design” (i.e., the constitu-
tional design including the “implicit” concept of the States’
sovereign immunity), the Supremacy Clause simply
cannot apply. The Alden Court continued as follows:

The Constitution, by delegating to Congress the
nower to establish the supreme law of the land
when acting within its enumerated powers, does
not foreclose a State from asserting immunity to
claims arising under federal law merely because
that law derives not, from the State itself but
from the national power. .-- We reject any con-
tention that substantive federal law by its own
force necessarily overrides the sovereign immu-
nity of the States. When a State asserts its um-
munity to suit, the question is not the primacy of
federal law but the implementation of the law in

——————————————

App. 71

a manner consistent with the constitutional sov-
ereignty of the States.

527 U.S. at __, 144 L.Ed. 2d at 664.

There are isolated statements in some of our
cases suggesting that the Eleventh Amendment
is inapplicable in state courts. . . . This, of course,
is a truism as to the literal terms of the Eleventh
Amendment. As we have explained, however, the
bare text of the Amendment is not an exhaustive
description of the States’ constitutional immunity
from suit. The cases, furthermore, do not decide
the question presented here — whether the States
retain immunity from private suits in their own
courts notwithstanding an attempted abrogation
by the Congress.

527 U.S. at ___, 144 L.Ed. 2d at 666 (citations omitted).

Following sixteen pages of discussion, the majority in
Alden reached the conclusion that the question whether
Congress had the authority under Article I to abrogate a
State’s immunity from suit in its own courts was “a ques-
tion of first impression.” 527 U.S. at __, 144 L.Ed. 2d at
670. In order to answer this question, the Alden majority
looked not to the Eleventh Amendment, but to “history,
practice, precedent, and the structure of the Constitution.”
Id.

Petitioners had also argued that, because the Elev-
enth Amendment focused on the states’ immunity from
suit in federal court, there was no instruction in the
historical record regarding the founders’ intent to preserve
the states’ immunity from sit in their own courts. Once
again, returning to the logic inherent in Hans, the Alden
Court stated that the founders’ silence on this point was
“best explained by the simple fact that no one, not even

App. 72

the Constitution’s most ardent opponents, suggested the
document might strip the States of the immunity.” 527
US. at __, 144 L.Ed. 2d at 670 (emphasis added). The
Court found that, “the silence... suggests the sovereign’s
right to assert immunity from suit in its own courts was @
principle so well established that no one conceived it
would be altered by the new Constitution.” Id.

The Court next noted, with apparent approval, that
its decisions had “often described the States’ immunity in
sweeping terms. - - ” 597 USS. at __, 144 L.Ed. 2d at 672
(emphasis added). After discussing some of these cases,
the Alden Court summed up as follows:

As it is settled doctrine that neither substantive
federal law nor attempted congressional abroga-
tion under Article I bars a State from raising a
constitutional defense of sovereign immunity in
federal court ... our decisions suggesting that
the States retain an analogous constitutional
immunity from private suits in their own courts
support the conclusion that Congress lacks the
Article I power to subject the States to private

suits in those fora.”
527 U.S. at __; 144 L.Ed. 2d at 674.

The majority next questioned whether “a congres-
sional power to subject nonconsenting Stats to private
suits in their own courts is consistent with the structure of
the Constitution.” Id. In answering this question, the
Alden Court looked “to the essential principles of federal-
ism and to the special role of the State Courts in the
constitutional design.” Id. The Court stated as follows:

Although the Constitution grants broad powers
to Congress, our federalism requires that

———————<x«<— i=".

App. 73

Congress treat the States in a manner consistent
with their status as residuary sovereigns and
joint participants in governance of the Nation... .
The principle of sovereign immunity preserved
by constitutional design “thus accords the States
the respect owed them as members of the federa-
tion.” [citing in part Idaho v. Coeur d’Alene Tribe,
512 U.S. at 268, 138 L.Ed. 2d at 447, which had
recognized “the dignity and respect afforded a
State, which the immunity is designed to pro-
tect”).

Petitioners contend that immunity from suit in
federal courts suffices to preserve the dignity of
the State. Private suits against nonconsenting
States, however, present “the indignity of subject-
ing « State to the coercive processes of judicial
tribunals at the instance of private parties,” ...
regardless of the forum.

527 U.S. at ___, 144 L.Ed. 2d at 674-75 (emphasis added).

Finally, the Alden majority apparently felt it neces-
sary to address the consequences of its decision, as well as
those of other recent sovereign immunity cases, which had
now made it clear that an individual cannot sue a state for
damages to vindicate a federal right in either federal court
or state court. As the Hans Court had done, the Alden
Court first emphasized the apparent hope that no citizen
would ever need to sue a state.’* The Court said:

The constitutional privilege of a State to assert
its sovereign immunity in its own courts does not

‘8 Obviously, that same hope which had been addressed in Hans
more than 100 years earlier had proven to be vain.

App. 74

confer upon the State a concomitant right to dis-
regard the Constitution or valid federal law. The
States and their officers are bound by obligations
imposed by the Constitution and by federal stat-
utes that comport with the constitutional design.
We are unwilling to assume the States will refuse
to honor the Constitution or obey the binding
laws of the United States. The good faith of the
States thus provides an important assurance
that [tJhis Constitution, and the Laws of the Un-
tied States which shall be made in Pursuance
thereof ... shall be the supreme Law of the
Land.” U.S. Const., Art. VI.

527 U.S. at __, 144 L.Ed. 2d at 678-79 (emphasis added).

But, in those presumably rare situations in which a
citizen’s federal rights are somehow subverted in spite of
the states’ good faith, the Alden Court recognized that
individuals attempting to sue states are not completely
without remedies. First, a state might consent to be sued.”
Second, even the sweeping amorphous concept of state
sovereign immunity inherent in the Constitution does not
prevent the federal government from suing a state.”

“ Numerous commentators, as well as several Justices of the
Supreme Court, have noted that the “consent” theory is completely
inconsistent with the plain language of the Eleventh Amendment. See,
e.g., Pfander, supra n.2 at 1373-78; Union Gas, supra, 491 U.S. at 25-
26, 105 L.Ed. 2d at 23-24 (Stevens, J. concurring). It is well-settled that
the federal courts are courts of limited jurisdiction, and that the parties
to a lawsuit cannot waive a lack of subject matter jurisdiction. Thus, if
the Eleventh Amendment restricts the “judicial power of the United
States,” as it plainly does how can a state “waive” its sovereign immu-
nity, and thereby give a federal court jurisdiction that it does not have?

% The Fifth Circuit, however, has recently held that the doctrine of

sovereign immunity bars a lawsuit by a federal agency filed against a
(Continued on following page)

App. 75

Third, the states enjoy no sovereign immunity under
federal statutes enacted by Congress as “appropriate
legislation” to enforce the Four eenth Amendment.”

state in federal court. See Matter of Estate of Fernandez, 123 F.3d 241,
245-46 (5th Cir. 1997) (holding that the FDIC, as an agency of the
national government, “does not enjoy the status accorded the national
government for Eleventh Amendment purposes,” although recognizing
the possibility that Congress might “abrogate the Eleventh Amendment
in the grant of agency status for the purpose of jurisdiction”).

‘© While it is well beyond the scope of this Report and Recommen-
dation, the Court notes that the Supreme Court has continued to take
an expansive view of the doctrine of sovereign immunity even in
situations where Congress unquestionably has the power, acting under
Section 5 of the Fourteenth Amendment, to abrogate a state’s immunity
from suit. Thus, the Court has required Congress to unequivocally
express its intent to abrogate the states’ sovereign immunity in
whatever legislation may be at issue. See Kimel Florida Board of
Regents, ___ U.S. __, 120 S.Ct. 631, 640 (2000).

Even in cases where Congress makes it explicit that it is acting
pursuant to its Section 5 powers and that it wishes to subject the states
to suit, the Court will question whether the legislation at issue is
“appropriate” legislation to enforce rights guaranteed by the Fourteenth
Amendment. See City of Boerne v. Flores, 521 U.S. 507, 138 L.Ed. 2d
624, 117 S.Ct. 2157 (1997). Flores held that, while Congress has the
power to “enforce” the provisions of the Fourteenth Amendment,
Congress cannot do so by “changing what the right is.” In other words,
while Congress can enact appropriate “remedial” legislation under the
Fourteenth Amendment, it cannot effect a substantive redefinition of
the Fourteenth Amendment right at issue. In making the determina-
tion as to which of these Congress has done, the court looks to whether
there is “a congruence and proportionality between the injury -to be
prevented or remedied and the means adopted to that end.” 521 U.S. at
520, 117 S.Ct. at 2157. See also Kimel, supra. If there is not, the
legislation is not “appropriate” and the doctrine -f sovereign immunity
applies. For example, in Florida Prepaid Postsecondary Education
Expenses Board v. College Savings Bank, 527 U.S. at __, 144 L.Ed. 2d
575 (1999), the Court ruled that the Plaintiff could not sue the State of
Florida for patent infringement, because the Act purporting to allow
such lawsuits was not “appropriate” legislation enacted to enforce the

(Continued on following page)

ee

aa amsemmaneeanemniepaieeattii dia emcaabalenenianaiti ditinthiiiadsideialeeedee en

App. 76

Fourth, sovereign immunity does not bar suits against
“lesser entities” than states (i.e. municipal corporations or
other governmental entities which are not arms of the
state). Fifth, suits can be brought under Ex Parte Young
for declaratory or injunctive relief, or even suits for money
damages against state officers can be brought-“so long as
the relief is sought not from the state treasury but from
the officer personally.” 527 U.S. at __, 144 L.Ed. 2d at
679-80.

The same day that Alden was decided, the Supreme
Court decided another case worthy of note. In College
Savings Bank v. F lorida Prepaid Postsecondary Education
Expense Board, 527 U.S. at __, 144 L.Ed. 2d 605 (1999),
the Court confirmed that Congress, acting pursuant to its
Article I powers over copyrights and patents, could not
abrogate a State’s sovereign immunity. Plaintiff had sued
the State of Florida under the Lanham Act, as amended
(15 U.S.C. § 1125(a)) for false misrepresentation of Plain-
tiffs product. Plaintiff and the State were selling similar
products, in competition with each other. Plaintiff argued
that the State had constructively waived its immunity
from suit, relying on Parden. After referring to Parden as
“an elliptical opinion that stands at the nadir of our waiver
(and, for that matter, sovereign immunity) jurisprudence,”
the College Savings Bank Court specifically overruled
Parden. 527 U.S. at ___, 144 L.Ed. 2d at 617, 619.

Fourteenth Amendment. While Congress had stated that it was acting,
at least in part, under Section 5 of the Fourteenth Amendment in
passing the Patent Remedy Act, Congress had not identified conduct
transgressing the Fourteenth Amendment's substantive provisions nor
had it tailored its legislative scheme to remedying or preventing such
conduct. 527 U.S. at __, 144 L.Ed. 2d at 588.

3
z

App. 77

III. Application of the Doctrine of Sovereign
Immunity to the Case at Bar

The above discussion shows that the concept of sover-
eign immunity is extremely broad, amorphous and virtu-
ally unlimited, with the possible exception of the five
specific instances mentioned in Alden. Two guiding princi-
ples, however, are readily apparent.

First, there is absolutely no question that the doctrine
of sovereign immunity is not limited by the language of
the Eleventh Amendment. Thus, Defendants’ arguments
that the doctrine is inapplicable in the case at bar because
this is not a “suit” or a situation that involves the “judicial
power of the United States” are unavailing.

Second, it cannot be questioned that the Supreme
Court has taken an expansive view of the doctrine of
sovereign immunity in recent years, while restricting the
major, previously-recognized “exceptions” to it.

It is certainly not the province of this Court to ques-
tion the holdings of the United States Supreme Court. The
appropriate questions have already been raised quite
eloquently in the dissenting opinions in Atascadero,
Pennhurst II, Welch, Seminole Tribe, and Alden. As
Justice Frankfurter once observed:

Whether [sovereign] immunity is an absolute
survival of the monarchial privilege, or is a mani-
festation merely of power, or rests on abstract
logical grounds, ... it undoubtedly runs counter
to modern democratic notions of the moral re-
sponsibility of the State. Accordingly, courts re-
flect a strong legislative momentum in their
tendency to extend the legal responsibility of
Government and to confirm Maitland’s belief,

RE PD

App. 78

express [sic] nearly fifty years ago that, “it is a
wholesome sight to see ‘the Crown’ sued and an-
swering for its torts.”

See Great Northern Life Insurance Company v. Read, 322
U.S. at 59, 88 L.Ed. at 1129 (1944) (Frankfurter J., dis-
senting) (citation omitted).

Nevertheless, as the Sixth Circuit has stated, it is the
duty of the lower courts to follow Supreme Court prece-
dent, whether they agree with it or not. See, e.g., McNeilus
Truck and Manufacturing Co. v. State of Ohio, 226 F.3d
429, 438 (6th Cir. 2000).

As discussed above, the case at bar is one of first
impression. This Court must be guided not only by the
language of the Supreme Court decisions discussed above
but also by the principles implicit in those decisions.

The Court must conclude that the doctrine of sover-
eign immunity bars the administrative proceeding at
issue, and that the State has not consented to that pro-
ceeding.” It is undisputed that Congress was acting

17 ‘The State did not raise its sovereign immunity in its initial filing
before the Secretary. Administrative Record (hereinafter “AR”) at 129-
39. In fact, the State did not raise its sovereign immunity until after the
Secretary had issued his decision, when the State filed a “Motion for
Stay” of that decision. AR at 197-98. This fact, however, is of no
consequence, because the Supreme Court has held that the defense of
sovereign immunity is so important that it can be raised at any stage of
the proceedings, even when a case is on review before the Supreme
Court itself. See Ford Motor Co. v. Department of Treasury, 323 U.S.
459, 466-67, 89 L.Ed. 389, 395-96, 65 S.Ct. 347 (1945). Additionally, the
Sixth Circuit has recently dismissed a case on the basis of a Defen-
dant’s sovereign immunity, even though Defendant had never raised

(Continued on following page)

App. 79

pursuant to its powers under the Commerce Clause when
it enacted the Hazardous Materials Transportation Act.
Under Seminole Tribe and Alden, Congress plainly could
not have included a provision in the Act that would have
allowed the Association to file suit against the State of
Tennessee in either federal court or state court, even if the
Association were seeking only declaratory and prospective
injunctive relief. As the Seminole Tribe Court stated, “[Wle
have often made it clear the relief sought by a plaintiff
suing a Sate is irrelevant to the question whether the suit
is barred by the Eleventh Amendment.” 517 U.S. at 58,
134 L.Ed. 2d at 267. The question, therefore, becomes
whether Congress had the power to establish a procedure
that allows an individual to force a state to defend itself
and one of its regulations in a federal administrative
forum. Based upon the above authorities, the court be-
lieves that Congress does not have that power either.

The Court must follow the principles of Coeur d’Alene
that sovereign immunity is designed to protect “the
dignity and respect afforded a State.” 512 U.S. at 268, 138
L.Ed. 2d at 447. As Allen stated, “Our federalism requires
that Congress treat the States in a manner consistent with
their status as residuary sovereigns and joint participants
in governance of the Nation.” 527 U.S. at__, 144 L.Ed. 2d
at 674. As Alden further stated, “Private suits against
nonconsenting states ... present ‘the indignity of subject-
ing a State to the coercive processes of judicial tribunals at
the instance of private parties,’ ... regardless of the
forum.” 527 U.S. at __, 144 L.Ed. 2d at 675.

the issue. See Reese v. State of Michigan, 2000 U.S. App. LEXIS 27404
(6th Cir. 2000) (Not for Publication).

App. 80

The Department of Transportation argues that the
State is not forced to do anything under §5125(d). The
reality of the situation however, is that the State must
“appear” and must contest the application. If it does not do
so, it is not a “party” under § 5125(f), and it cannot seek
judicial review of the decision under that subsection.
Theoretically, a state might choose not to participate in
the administrative proceeding and might thereafter
attempt to challenge the “fnal administrative determina-
tion” of the Associate Administrator by filing its own
action in court. In such a case, the Department of Trans-
portation would no doubt argue that the state had waived
its right to contest the determination by not participating
in the administrative proceeding and that the state could
not seek judicial review of its determination under subsec-
tion (f) or otherwise. Presumably very few states would be
willing to take the risk that a court might agree.

Moreover, subjecting the State of Tennessee to the
“coercive processes” of the Department of Transportation,
whose Associate Administrator has the authority to
conduct “an investigation,” a “hearing” or a “conference,”
the parameters of which are completely undefined, is a
much greater insult to the State’s “dignity,” than subject-
ing the State to the processes of a “judicial tribunal” would
be. At least if the State were before a court of law, the
court would be bound by rules of procedure and rules of
evidence. Additionally, a court of law would arguably be a
more impartial forum than that presented by the U.S.
Department of Transportation, which is being asked to
determine whether the federal law it is charged with
enforcing preempts the State’s regulatory fee.

Before this Court, the Department of Transportation
also attempts to take advantage of the “deference” that

App. 81

arguably should be accorded his decision. The concept of a
reviewing court giving deference to the decision of an
administrative agency when the agency is acting within its
sphere of expertise is a familiar one, and need not be
discussed in detail here. But if this Court gives such
deference to the Secretary’s decision, the “dignity” of the
State of Tennessee suffers much more than it otherwise
would have suffered if the initial proceeding had been held
before a court of law, because no such “deference” would
have been given in that situation.

Respondents cite Tennessee Department of Human
Services v. United States Department of Education, 979
F.2d 1162 (6th Cir. 1992), for the proposition that sover-
eign immunity does not apply in an Article I administra-
tive process commenced by a private party. That case
however, was decided in 1992, four years before the
Supreme Court’s decision in Seminole Tribe, and it rests in
large part upon the rationale of Union Gas, supra, (see 979
F.2d at 1166), which was specifically overruled in Semi-
nole Tribe.

IV. Recommendation

For the foregoing reasons, the undersigned concludes
the doctrine of sovereign immunity bars the administra-
tive proceeding at issue in this case. The undersigned,
therefore, recommends that the decision of the Secretary
be vacated, that Petitioners’ motion be granted in part,
and that this matter be dismissed.

Under Rule 72(b) of the Federal Rules of Civil Proce-
dure, any party has ten (10) days from receipt of this
Report and Recommendation in which to file any written
objections to this Recommendation, with the District

App. 82

Court. Any party opposing said © -ections shall have ten
(10) days from receipt of any objections filed in this Report
in which to file any response to said objections. Failure to
file specific objections within ten (10) days of receipt of this
Report and Recommendation can constitute a waiver of
further appeal of this Recommendation. Thomas v. Arn,
474 U.S. 140, 106 S.Ct. 466, 88 L.Ed 2d 435 (1985) reh’g
denied, 474 U.S. 1111 (1986).

/s/ E. Clifton Knowles
E. Clifton Knowles
United States

Magistrate Judge

App. 83

APPENDIX D
[LOGO] 400 Seventh St., S.W.
U.S. Department Washington, D.C. 20590
of Transportation |
Research and
Special Programs
Administration

Alan M. Leiserson, Esq.

Legal Services Director

Tennessee Department of
Environment and Conservation

Office of General Counsel

_ Seventh Floor, Tennessee Tower

312 Eighth Avenue, North

Nashville, TN 37243-1548

Docket No. RSPA 98-3665-15 (PD-21(R))
Tennessee Hazardous Waste Requirements

Dear Mr. Leiserson:

The request of the Tennessee Department of Environment
and Conservation (DEC) for a “stay” of Preemption De-
termination (PD) No. 21(R), published in the Federal
Register at 64 Fed. Reg. 54474, on October 6, 1999, is
denied for the reasons set forth below.

According to DEC’s “motion” paper, its request only
applies to the ruling in PD-21(R) that Federal hazardous
material transportation law preempts DEC’s annual $650
remedial action fee imposed on all transporters who pick
up or deliver hazardous waste within Tennessee. DEC
indicates that it is not requesting a stay of that part of PD-
21(R) which found that 49 U.S.C. § 5125(b)(1)(D) preempts
DEC’s written incident notification requirement in DEC
Rule 1200-1-11-.04(4)(a)(4). DEC also states that the latter

App. 84

requirement was amended effective July 19, 1999, but
DEC has not submitted the text of its amended require-
ment to the docket in this proceeding or otherwise pro-
vided it to the Research and Special Programs
Administration (RSPA).

Neither DEC nor any other person filed a petition for
reconsideration of PD-21(R) within 20 days of publication
in the Federal Register, as allowed by 49 C.F.R. § 107.211(a).
As indicated in PD-21(R), because no petition for reconsid-
eration was filed within the time allowed, the October 6,
1999 determination became RSPA’s final decision on
October 26, 1999. 64 Fed. Reg. at 54481. The filing of a
petition for reconsideration is not a prerequisite for seek-
ing judicial review under 49 U.S.C. § 5125(f). Id.

DEC observes that RSPA has no rules for staying adminis-
trative determinations of preemption. It states that its
request is based on the provision in the Administrative
Procedure Act that “[w]hen an agency finds that justice so
requires, it may postpone the effective date of action taken
by it, pending judicial review.” 5 U.S.C. § 705. In its paper,
DEC addresses the following four factors:

1. the likelihood that DEC will prevail on the merits
of a suit for review of PD-21(R);

29. the likelihood that DEC will be irreparably
_harmed absent a stay;

3. the prospect that others will be harmed if a stay
is granted; and

4. the public interest in granting the stay.

The Court of Appeals for the District of Columbia Circuit
has held that these factors should be considered in deter-
mining whether a judicial stay is warranted. Cuomo v.

ee

App. 85

U.S. Nuclear Regulatory Comm’n, 772 F.2d 972, 974 (D.C.
Cir. 1985). I have considered DEC’s request under the four
factors set forth in the Cuomo case without deciding that 5
U.S.C. § 705 applies to PD-21(R) or that the Cuomo factors
apply to an administrative agency’s exercise of discretion
to stay its own decision.

Likelihood of success. DEC makes two arguments with
respect to the likelihood that it will prevail in a civil action
to reverse PD-21(R). It asserts that the Department of
Transportation lacked “subject matter jurisdiction” to
issue PD-21(R) under recent decisions of the U.S. Supreme
Court regarding the “sovereign immunity” of a State
against a private suit in a Federal court or the State’s own
courts. DEC also claims that RSPA misinterpreted the
applicable statute, 49° U.S.C. § 5125(g)(1), “misused” the
applicable precedents, and “failed to adequately address
the facts .. . or the applicable case law.”

DEC has not previously asserted “sovereign immunity” as
a reason why RSPA may not make administrative deter-
minations of preemption under 49 U.S.C. § 5125(d)(1).
Rather, DEC submitted comments in May and July 1998,
and it specifically requested an opportunity to further
respond to rebuttal comments, without raising sovereign
immunity issues. Most importantly, DEC has not ex-
plained how the recent Supreme Court decisions apply toa
Federal agency’s administrative determination, such as
PD-21(R), that Federal law preempts an inconsistent State
requirement — or how that doctrine affects judicial review
of PD-21(R) in Federal court when a State sues an agency
of the United States (and not a private party) as the
opposing party litigant.

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App. 86

A State may not wilfully ignore a valid Federal law that
contains express preemption provisions. The Supreme
Court made clear in Alden v. Maine, 119 S.Ct. 2240, 2266
(1999), that a State’s privilege to assert sovereign immu-
nity against private suits

does not confer upon the State a concomitant
right to disregard the Constitution or valid fed-
eral law. The States and their officers are bound
by obligations imposed by the Constitution and
by federal statutes that comport with the consti-
tutional design.

DEC has not shown that the recent Supreme Court deci-
sions directly apply to PD-21(R) or make it likely that
RSPA’s determination in PD-21(R) will be reversed.

The determination in PD-21(R) specifically addressed each
of the substantive arguments raised by DEC in its com-
ments, including those related to the current balance in
the remedial action fund (which DEC has never precisely
specified); the Supreme Court’s construction of the Com-
merce Clause of the Constitution and decisions of Federal
courts of appeals concerning the fees charged for perform-
ing annual safety inspections (which DEC does not per-
form); and DEC’s use (or nonuse) of the funds collected
from transporters of hazardous waste. DEC’s complaints of
error do not show that RSPA misapplied eithe~ the law or
facts in deciding PD-21(R) or that there is any likelihood
that PD-21(R) will be reversed on the merits.

Irreparable Injury. DEC argues that, if it stops collect-
ing fees from transporters of hazardous waste, it will “lose
a portion of its ability to protect the public and the envi-
ronment.” DEC also claims that there would be “confusion
and disruption of the regulatory program” if it stopped

OO

App. 87

collecting these fees and then resumed collections (assum-
ing a reversal of PD-21(R)).

DEC has not explained why it cannot fund a program for
responding to transportation incidents involving hazard-
ous waste with a fee that is “fair” and used for purposes
“related to transporting hazardous material” as required
by 49 U.S.C. § 5125(g)(1). Nor has it made any showing
that the current balance in the remedial action fund is not
sufficient to cover potential expenses during the period for
judicial review of PD-21(R). Included in the comments
previously submitted by DEC was information that the
State of Tennessee annually appropriates $1 million to the
remedial action fund, which dwarfs the approximately
$170,000 collected from transporters each year. The
applicant in PD-21(R) estizuated that DEC had collected
more than $500,000 from transporters up through the end
of 1997, and DEC also stated that the balance in the fund
has never been below $170,000 in recent years. Yet DEC
identified only $15,000 in expenditures from the remedial
action fund to clean up highway and rail incidents. Even
assuming that $15,000 were an annual expense, rather
than the total since the remedial action fund was created,
it is impossible to conclude that DEC's capability for
emergency response would be substantially impaired by a
refusal to stay PD-21(R) during judicial review.

I also cannot find that a potential difficulty in collecting
fees from transporters constitutes irreparable injury, even
if PD-21(R) is reversed and DEC then seeks to collect fees
from hazardous waste transporters covering the period of
judicial review. In an analogous situation, the Federal
Energy Regulatory Commission refused to stay its order
that a utility make refunds to its customers, stating that

App. 88

The possibility that the utility might experience
difficulty in recouping refunds from its wholesale
customers does not constitute irreparable in-
jury. ... Further, the utility has not shown that
the customers will suffer little, if any, harm by
delaying the payments of refunds. We believe
that the public interest supports the rapid dis-
bursement of refunds.

Ohio Power Co., 43 FERC § 61,046 (1988) (internal cita-
tion and footnote omitted).

Harm to others. DEC argues that requiring hazardous
waste transporters to continue to pay the $650 annual
remedial action fee, pending judicial review of PD-21(R),
will have a “relatively small monetary impact” on them. In
doing so, DEC acknowledges that each hazardous waste
transporter would suffer some actual injury. By itself, this
is sufficient to find that other parties will be harmed by a
stay of PD-21(R). Indeed, the payment of $650 may have a
substantial impact on a small transporter.

Public interest. To support its claim that “the public
interest is on [its] side,” DEC simply repeats its earlier
arguments of “confusion among the regulated community
and the diminished capacity to respond to hazardous
substance sites.” It does not further explain how the public
interest would be advanced by a preservation of the status
quo, whereby hazardous waste transporters are charged
$650 that is simply placed in the remedial action fund and
not actually “used for purpose relating to transporting
hazardous material,” as required by 49 U.S.C. § 5125(g)(1).

For the reasons already stated, DEC has not shown that it
will suffer harm from foregoing collection of $170,000 per
year from hazardous waste transporters. To the extent

ll

App. 89

that DEC needs to collect fees from transporters, it may
design an alternative program that satisfies the require-
ments of § 5125(g)(1). Therefore, I cannot conclude that a
stay of RSPA’s determination in PD-2 1(R) is in the public
interest.

I am denying DEC’s request for a stay because I cannot
find that it has satisfied any of the four factors to be
considered.

Sincerely,
/s/ Alan I. Roberts

Alan I. Roberts
Associate Administrator for
Hazardous Materials Safety

ec: Mr. Michael Carney (AWHMT)
Mr. Jonathan Collom (HMAC)
Michael J. Rush, Esq. (AAR)

App. 90

APPENDIX E

54474 6532/Federal Register/Vol. 64, No. 193/
Wednesday, October 6, 1999/Notices

DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
[Docket No. RSPA-98-3665]

Preemption Determination No. 21(R);
Tennessee Hazardous Waste
Transporter Fee and Reporting
Requirements

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

ACTION: Notice of administrative determination of
preemption by RSPA’s Associate Administrator for Haz-
ardous Materials Safety.

ae

Applicant: Association of Waste Hazardous Materials
Transporters (AWHMT).

Local Laws Affected: Tennessee Code 68-212-203(a)(6);
Tennessee Rules and Regulations 1200-1-11-.04(4)(a)4,
1200-1-13-.03(1)(e).

Modes Affected: Highway and Rail.

SUMMARY: Federal hazardous material transportation
law preempts Tennessee's requirement for hazardous
waste transporters to pay a $650 per year remedial action
fee because that fee is not fair and it is not used for pur-
poses related to transporting hazardous material. Federal
hazardous meterial transportation law also preempts
Tennessee’s requirement for a transporter to submit a

App. 91 \

written report of a discharge of hazardous waste during
transportation because that requirement is not substan-
tively the same as RSPA’s requirement in the Hazardous
Materials Regulations.

FOR FURTHER INFORMATION CONTACT: Frazer C.
Hilder, Office of the Chief Counsel, Research and Special
Programs Administration, U.S. Department of Transporta-
tion, Washington, DC 20590-0001 (Tel. No. 202-366-4400).

SUPPLEMENTARY INFORMATION:
I. Background

In March 1998, AWHMT applied for a determination
that Federal hazardous material transportation law
preempts Tennessee statutory and regulatory require-
ments that transporters of hazardous waste pay a reme-
dial action fee and file written reports of any discharge of
hazardous waste within the State.

Tennessee requires a transporter to hold a permit in
order to pick up or deliver hazardous waste within the
State. Tennessee Code 68-212-108(a)(1); Rule 1200-1-11-
.04(2) of the Tennessee Department of Environment and
Conservation (DEC). In addition to the initial application
and annual renewal fees to obtain this permit, which are
not challenged by AWHMT, the transporter must also pay
a $650 “remedial action fee” each year, under Tennessee
Code 68-212-203(a\(6) and DEC Rule 1200-1-13.03(1)(e).
(This fee had been set at $550 for the 1994-95 fiscal year
and $600 for the 1995-96 fiscal year. Id.) The remedial
action fees paid by transporters are deposited into a
“special agency account .. . known as the ‘hazardous waste
remedial action fund.’” Tennessee Code 68-2 12-204(a). The

ee

App. 92

monies in this fund may be used for a number of purposes,
including identifying, investigating, cleaning up and
monitoring “inactive hazardous substance sites”; matching
funds provided by the United States to clean up hazardous
substance sites; providing on-site technical assistance to
hazardous waste generators; taking additional measures
to reduce the generation of hazardous waste within the
State; and preparing an annual report to the Tennessee
Legislature. Tennessee Code 68-212-205.

Tennessee also requires a transporter to submit to
DEC, “[w]ithin fifteen days of occurrence,” a written report
“on each hazardous waste discharge during transportation
that occurs in the state.” DEC Rule 1200-1-11-.04(4)(a)4.
The Note to this section states that a copy of DOT form F
5800.1, as required by 49 CFR 171.16, “shall suffice for
paw this report provided that it is properly completed and
supplemented as necessary to include the information
required” in_subsection (a)3 with respect to immediate
notification of any discharge of hazardous waste. ‘

AWHMT contends that Tennessee’s remedial action
fee is preempted because the proceeds are not used exclu-
sively for purposes related to transporting hazardous
material, including enforcement and planning, developing,
and maintaining a capability for emergency response.
AWHMT also maintains that this is a “flat fee” that is
preempted because it has no relation to the transporter’s
operations within the State. In addition, AWHMT argues
that Tennessee’s requirement to submit written reports of
any hazardous waste discharge is preempted because it is
not substantively the same as DOT’s requirements in 49
CFR 171.16.

App. 93

The text of AWHMT’s application was published in the
Federal Register, and interested parties were invited to
submit comments. 63 FR 17479 (April 9, 1998), correction,
63 FR 18964 (April 16, 1998). Comments were submitted
by DEC, the Association of American Railroads (AAR), and
the Hazardous Materials Advisory Council (HMAC).
Rebuttal comments were submitted by AWHMT, DEC, and
AAR. In its rebuttal comments, DEC asked RSPA to
reopen the comment period to allow commenters to re-
spond to rebuttal comments. RSPA denied that request but
called DEC’s attention to RSPA’s procedural regulations
providing that “Late-filed comments are considered so far
as practicable.” 49 CFR 107 -205(c). Accordingly, in the
event that a commenter raises a new issue in rebuttal
comments, or there is a change in the facts or law involved
in a preemption application, an interested party may
always bring these matters to RSPA’s attention. No late-
filed comments were received.

II. Federal Preemption

The Hazardous Materials Transportation Act (HMTA)
was enacted in 1975 to give the Department of Transpor-
‘tation greater authority “to protect the Nation adequately
against the risks to life and property which are inherent in
the transportation of hazardous materials in commerce.”
Pub. L. 93-633 § 102, 88 Stat. 2156, presently codified as
revised in 49 U.S.C. 5101. The HMTA “replace[d] a patch-
work of state and federal laws and regulations ** * with a
scheme of uniform, national regulations.” Southern Pac.
Transp. Co. v. Public Serv. Comm’n, 909 F.2d 352, 353 (9th
Cir. 1980). On July 5, 1994, the HMTA was among the
many Federal laws relating to transportation that were
revised, codified and enacted “without substantive change”

App. 94

by Public Law 103-272, 108 Stat. 745. The Federal haz-
ardous material transportation law is now found in 49
U.S.C. Chapter 51.

The HMR are currently issued under the direction in
49 U.S.C. 5103(b)(1) that DOT “shall prescribe regulations
for the safe transportation of hazardous material in
intrastate, interstate, and foreign commerce.” The term
“hazardous material” specifically includes hazardous
wastes. 49 CFR 171.8; see also § 171.1(a)(1).

A statutory provision for Federal preemption was
central to the HMTA. In 1974, the Senate Commerce
Committee “endorse[d] the principle of preemption in
order to preclude a multiplicity of State and local regula-
tions and the potential for varying as well as conflicting
regulations in the area of hazardous materials transporta-
tion.” S. Rep. No. 1102, 93rd Cong. 2nd Sess. 37 (1974).
More recently, a Federal Court of Appeals found that
uniformity was the “linchpin” in the design of the HMTA,
including the 1990 amendments that expanded the pre-
emption provisions. Colorado Pub. Util. Comm'n v.
Harmon, 951 F.2d 1571, 1575 (10th Cir. 1991).

The 1990 amendments to the HMTA codified the “dual
compliance” and “obstacle” criteria that RSPA had applied
in issuing inconsistency rulings before 1990.’ The dual

1 While advisory in nature, RSPA’s inconsistency rulings were “an
alternative to litigation for a determination of the relationship of
Federal and State or local requirements” and also a possible “basis for
an application * * * [for] a waiver of preemption.” Inconsistency Ruling
(IR) No. 2, Rhode Island Rules and Regulations Governing the Trans-
portation of Liquefied Natural Gas and Liquefied Propane Gas, etc., 44
FR 75566, 76657 (Dec. 20, 1979). Fe

ROOF STIs

App. 95

compliance and obstacle criteria are based on U.S. Su-
preme Court decisions on preemption. Hines v.
Davidowitz, 312 U.S. 52 (1941); Florida Lime & Avocado
Growers, Inc. v. Paul, 373 U.S. 132 (1963); Ray v. Atlantic
Richfield, Inc., 435 U.S. 151 (1978). As now set forth in 49
U.S.C. 5125(a), these criteria provide that, in the absence
of a waiver of preemption by DOT under 49 U.S.C. 5125(e)
or unless it is authorized by another Federal law, “a
requirement of a State, political subdivision of a State, or

Indian tribe” is explicitly preempted if

(1) complying with a requirement of the
State, political subdivision or tribe and a re-
quirement 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 en-
forced, is an obstacle to the accomplishing and
carrying out this chapter or a regulation pre-
scribed under this chapter.

In the 1990 amendments to the HMTA, Congress also
added additional preemption provisions on certain “cov-
ered subject” areas and with regard to fees imposed by a
State, political subdivision, or Indian tribe on the trans-
portation of hazardous material. The covered subject areas
include “the written notification, recording, and reporting
of the unintentional release in transportation of hazardous
material,” 49 U.S.C. 5125(b)(1)(D); unless it is authorized
by another Federal law or a DOT waiver of preemption, a
non-Federal requirement on this subject matter is pre-
empted when it is not “substantively the same as a provi-
sion of this chapter or a regulation prescribed under this

- chapter.” 49 U.S.C. 5125(b)(1). RSPA has defined “substan-
tively the same” to mean “conforms in every significant

App. 96

respect to the Federal requirement. Editorial and other
similar de minimis changes are permitted.” 49 CFR
107.202(d). -

In addition, 49 U.S.C. 5125(g)(1) provides that a State,
political subdivision, or Indian tribe may

impose a fee related to transporting hazardous
material only if the fee is fair and used for a pur-
pose relating to transporting hazardous material,
including enforcement and planning, developing,

and maintaining a capability for emergency re-
sponse.

Under 49 U.S.C. 5125(d)\(1), any directly affected
person may apply to the Secretary of Transportation ‘or a
determination whether a State, political subdivision or
Indian tribe requirement is preempted. The Secretary of
Transportation has delegated to RSPA the authority to
make determinations of preemption, except for those
concerning highway routing (which have been delegated to
FHWA). 49 CFR 1.53(b). Under RSPA's regulations,
preemption determinations are issued by RSPA’s Associate
Adininistrator for Hazardous Materials Safety. 49 CFR
107.209(a).

Section 5125(d)(1) requires that notice of an applica-
tion for a preemption determination be published in the
Federal Register. Following the receipt and considera-
tion of written comments, RSPA will publish its determi-
nation in the Federal Register. See 49 CFR 107.209(d). A
short period of time is allowed for filing petitions for
reconsideration. 49 CFR 107.211. Any party to the pro-
ceeding may seek judicial review in a Federal district
court. 49 U.S.C. 5125(f).

App. 97

Preemption determinations do not directly address
issues of preemption arising under the Commerce Clause
of the Constitution, except that, as discussed in more
detail in Section III.B.2., below, RSPA considers that
Commerce Clause standards are relevant to a determina-
tion whether a fee related to the transportation of hazard-
ous material is “fair” within the meaning of 49 U.S.C.
5125(g)(1). Preemption determinations also do not address
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 re-
quirement is not authorized by another Federal law
merely because it is not preempted by another Federal
statute. Colorado Pub. Util. Comm’n v. Harmon, above,
951 F.2d at 1581 n.10.

In making preemption determinations under 49
U.S.C. 5125(d), RSPA is guided by the principles and
policy set forth in Executive Order No. 12612, entitled
“Federalism” (52 FR 41685, Oct. 30, 1987). Section 4(a) of
that Executive Order authorizes preemption of State laws
only when a statute contains an express preemption
provision, there is other firm and palpable evidence of
Congressional intent to preempt, or the exercise of State
authority directly conflicts with the exercise of Federal
authority. Section 5125 contains express preemption

? On August 4, 1999, the President signed “Federalism” Executive
Order No. 13132 which becomes effective on November 2, 1999.
Although this replaces Executive Order No. 12612, it continues the
policy that a Federal agency should find preemption “only where the
[Federal] statute contains an express preemption provision or there is
some other clear evidence that the Congress intended preemption of

(Continued on following page)

App. 98

provisions, which RSPA has implemented through its
regulations.

III. Discussion
A. Standing

In its initial comments, DEC questioned whether
AWHMT “has standing to pursue this petition.” DEC
asserted that AWHMT had not set forth sufficient facts in
its application “to know if the Association has any m2m-
bers that have standing.” DEC stated that its remedial
action fee “does not apply to the universe of hazardous
materials * * * but only to the subset of hazardous waste
as defined by the Resource Conservation and Recovery Act
(RCRA),” 42 U.S.C. 6901 et seq., and that

the fee only applies to persons who ‘transport
hazardous waste to or from locations within Ten-
nessee. TDEC Rule 1200-1-11-.04(2)(b)(1) in the
Applicant’s Attachment C. The fee does not apply
to a transporter who passes through the State.
[Footnote omitted]

With its rebuttal comments, AWHMT submitted
affidavits of two of its members, Environmental Transport
Group, Inc., of Flanders, New Jersey, and Tri-State Motor
Transit Co., Inc., of Joplin, Missouri. Officials of each of
these companies stated that their companies handled
numerous shipments of hazardous waste every year that
originate, terminate or are temporarily stored during the

State law, or where the exercise of State authority conflicts with the
exercise of Federal authority under the Federal Statute.” Sec. 4(a), 54
FR 43255, 43257 (Aug. 10, 1999).

1 tpi eat RLS TEN SEIEN Y le SDAIN

Sh ALO LG EE PEI EI omy

App. 99

normal course of transportation in Tennessee. This is
sufficient to allow AWHMT to petition for an administra-
tive determination of preemption on behalf of its members.
As stated in PD-2(R), Illinois Environmental Protection
Agencys Uniform Hazardous Waste Manifest, 58 FR
11176, 11182 (Feb. 23, 1993),

if [an association’s] members do not comply with
the IEPA Uniform Hazardous Waste Manifest re-
quirements, they are subject to State enforce-
ment action and to delays of their shipments.
Thus, [the association’s] members are “directly
affected” by the Uniform Hazardous Waste Mani-
fest system, and [the association] has standing to
apply for this preemption determination.

Accord, PD-6(R), Michigan Marking Requirements for
Vehicles Transporting Hazardous and Liquid Industrial
Wastes, 59 FR 6186, 6189 (Feb. 9, 1994) (an association
has standing to apply for a determination that Michigan
requirements on the transportation of hazardous waste
are preempted when its “members include those who
transport hazardous waste in or through Michigan by
motor vehicle”).

RSPA finds that AWHMT has standing to apply for a
determination that Federal hazardous materials
transportation law preempts Tennessee requirements that
apply to AWHMT’s members that transport hazardous
waste within Tennessee.

B. Remedial Action Fee
1. The Fee and its Uses

According to DEC, the remedial action fee mandated
by Tennessee Code 68-212-203(a(6) and DEC Rule

App. 100

1200-1-13-.03(1)(e) is “part of the Tennessee superfund
program.” DEC stated that these fees are paid by genera-
tors of hazardous waste, transporters of hazardous waste,
and facilities that treat or dispose of hazardous waste.’
DEC indicated that its Division of Superfund collected
more than $2.5 million in remedial action fees in 1996,
and almost $2.9 million in 1997. In both years, more than
90% of the fees were paid by generators and treatment
and disposal facilities; transporters paid $176,800 (about
7% of the fees collected) in 1996, and $168,700 (about 6%)
in 1997.

DEC stated that the remedial action fees paid by
generators, transporters and treatment and disposal
facilities are credited to the Hazardous Waste Remedial
Action Fund,‘ which is “distinct from the state general
fund and any unencumbered balance does not revert to the
general fund at the end of any fiscal year.” DEC also
advised that, besides these fees, the Hazardous Waste

* It appears that the amount of fees paid by generators depends
upon the amount of hazardous waste generated within the year. DEC
Rule 1200-1-13-.03(1)(b). In addition, generators who ship hazardous
waste offsite for treatment of disposal also pay an additional fee, also
based on the amount of hazardous waste shipped. DEC Rule 1200-1-13-
03(1X(c). Although this additional “off-site shipping fee” may be a “fee
related to transporting hazardous material,” 49 U.S.C. 5125(g(1), no
directly affected person has asked RSPA to determine whether Federal
hazardous material transportation law preempts this separate fee
imposed on generators.

‘ Although DEC stated initially that this fund is “officially named
the Hazardous Waste Remediation Fund,” it later referred to the
“Hazardous Waste Remedial Action Fund,” which is the name specified
in Tennessee Code 68-212-204.

piety the pm tt 2 Corid apetee Sate

ov tm pedis 7

App. 101

Remediation Fund receives criminal fines and civil penal-
ties for violations of the Tennessee Hazardous Waste
Management Act, and the State appropriates $1 million to
this fund each year. See Tennessee Code 68-212-203(d), (e).

DEC stated that “the primary use [of monies in the
fund] is as a mechanism for the Department to investi-
gate, contain and clean up ‘inactive hazardous substance
sites’ *** where disposal of hazardous substance has
occurred.” According to DEC, “hazardous substance” has
the same meaning as in the Comprehensive Environ-
mental Response, Compensation, and Liability Act (CER-
CLA), 49 U.S.C. 9601(14), so that this term includes more
than hazardous wastes.

DEC indicated that disposal can include “[aJny spill-
ing, discharge, or leaking such as can occur during an
accident during transportation or during loading and
unloading.” DEC stated that it “accomplishes these activi-
ties through the use of contractors when the liable parties
do not do it themselves.” It indicated that it has separate
contracts for emergency response, investigation and
engineering, and for remediation. However, according to
DEC, “[t]here has not been a major spill in a transporta-
tion-related incident that we have had to address with the
superfund.” It mentioned that, in 1996, it “used the fund
and the emergency response contractor to address inci-
dents on highways,” at a total cost of $4,300. DEC also
referred to two train derailments that resulted in the
release of significant amounts of hazardous substances. It
stated that, in these latter two cases, the rail transporter
paid the direct costs of response and clean-up, and DEC
incurred oversight costs that totaled slightly more thea
$10,000 for both incidents.

App. 102

In its application, AWHMT challenges Tennessee's
remedial action fee on the grounds that it is not “fair” and
that it is not being used for purposes that are related to
the transportation of hazardous material.

2. The Fairness Test

Both AWHMT and DEC have referred to the Com-
merce Clause as providing the standards for a determina-
tion whether the Tennessee remedial action fee is “fair”
within the meaning of 49 U.S.C. 5125(g 1). AWHMT
ecntends that, because the remedial action fee is set at a
“flat rate” for all transporters who pick up or deliver
hazardous wastes within Tennessee, it fails to meet the
«:nternal consistency” test discussed in American Trucking
Ass’ns v. Scheiner, 483 U.S. 266, 97 S.Ct. 2829 (1987).
AWHMT cited the Scheiner case, 483 U.S. at 290-291, as
holding that “because they are unappertioned, flat fees
cannot be said to be “ ‘fairly related’ to a feepayer’s level of
presence or activities in the fee-assessing jurisdiction.” It
cited four State court decisions in cases also brought by
the American Trucking Associations, Inc. (ATA) that
“strike down, enjoin, or escrow flat hazardous materials
taxes and fees”: Wisconsin, 556 N.W.2d 761 (Wis. Ct. App.),
review denied, 560 N.W.2d 274 (1996); Massachusetts, 613
N.E.2d 95 (1993); Maine, 595 A.2d 1014 (1991); and New
Jersey, No. 11562-92 (N.J. Tax. Ct., March 11, 1998).°

° After remand by the New Jersey Supreme Court, 713 A.2d 497
(1998), the Appellate Division reversed and remanded this case with
directions to the State to apply to DOT for a determination on the
fairness of New Jersey’s hazardous waste transporter registration fee.
Docket No. A-6334-97T3F (June 15, 1999). RSPA understands that the

(Continued on following page)

ee

‘

App. 103

AWHM'T also asserted that the DEC remedial action
fee is inherently “unfair” because of the possible cumula-
tive effect if other jurisdictions charge similar fees:

Some motor carriers, otherwise in compli-
ance with the HMRs, will inevitably be unable to
shoulder multiple flat fees, and thus will be ex-
cluded from some sub-set c. fee-imposing juris-
dictions. If the State’s flat fee scheme is allowed
to stand, similar fees must be allowed in the Na-
tion’s other 30,000 non-federal jurisdictions. The
cumulative effect of such outcome would be not
only a generally undesirable patchwork of regu-
lations necessary to collect the various fees, but
the balkanization of carrier areas of operation
and attendant, unnecessary handling of hazard-
ous materials as these materials are transferred
from one company to another at jurisdictional
borders. The increased transfers would pose a se-
rious risk to safety, since “the more frequently
hazardous material is handled during transpor-
tation, the greater the risk of mishap.”

HMAC also argued that a

flat fee of $650 per year * * * is clearly unfair to
interstate carriers. If such fees were to be en-
acted by other States or jurisdictions, it would
lead to assessments on interstate carriers many
times the rates paid by local carriers for the

Appellate Division has denied motions for reconsideration of its June
15, 1999 decision and that both ATA and the State of New Jersey have
appealed this decision to the New Jersey Supreme Court. AWHMT is
affiliated with ATA.

* The quoted language is from Missouri Pac. R.R. v. Railroad
Comm’n of Texas, 671 F. Supp. 466, 480-81 (W.D. Tex.)

ee

App. 104

same number of miles. A fee of this magnitude
applied by 50 States would result in a cost to a
single carrier of more than $32,000.

DEC has asserted that its remedial action fee is not
unreasonably high because in 1997 transporters paid only
about 6% of the total fees collected. DEC stated that its fee
does not differentiate between interstate and intrastate
carriers, because both pay the same $650 amount per year.
Although not “conced[ing] that the fee is a flat fee,” DEC
does “acknowledge that all of the persons in the small
subset of payers who are transporters of hazardous waste
all pay the same amount.” It contended that the Scheiner
case is not dispositive, regardless of whether the remedial
action fee is considered a “tax” or a regulatory “fee.”

DEC stated that, because this fee is not used to pay
the government’s “general debts and liabilities,” it is not a
tax, but rather a “fee” which is “charged by the govern-
ment in connection with the exercise of its police function
to help defray costs of the government's provision of a
specific service.” This fee, DEC stated, helps “defray the
State’s costs in the establishment and maintenance of a
fund used to identify, investigate and remediate sites
where there is a release or threatened release of hazard-
ous substances,” including “‘maintaining a capability for
emergency response” when the actual or threatened
release results from the transport of hazardous materials.”
It contended that the decisions in V-1 Oil Co. v. Utah State
Dept. of Public Safety, 131 F3d 1415 (10th Cir. 1997), and
Interstate Towing v. Cincinnati, 6 F3d 1154 (6th Cir.
1993), hold that uniform fees that are used to perform
inspections of LPG facilities (in V-1 Oil) or tow trucks (in
Interstate Towing) do not discriminate against interstate
commerce. DEC also referred to Evansville-Vanderburgh

Aah IMAL ee

~ App. 105

Airport Auth. v. Delta Airlines, Inc., 405 U.S. 707, 717, 92
S.Ct. 1349, 1355 (1972), as approving a $1.00 charge for
each departing passenger on both interstate and intra-
state flights as “a fair, if imperfect, approximation of the
use of facilities for whose benefit they are imposed.”

DEC argued that “tax cases such as Scheiner” do not
invalidate its remedial action fee. It stated that “Tennes-
see’s fee provision does not explicitly treat out-of-state
interests differently,” and that only transporters who pick
up or deliver hazardous waste in the State must pay the
fee, not all “truckers who merely enter the State.” In
addition, DEC asserted that there should be no “concern
about burdensome multiple taxation,” because “If all the
states were to adopt a law identical to Tennessee’s, the
highest number of them that would assess the fee on a
particular shipment would be two, the beginning and
terminating states.” DEC cited Oklahoma Tax Comm'n v.
Jefferson Lines, Inc., 514 U.S. 175, 115 S.Ct. 1331 (1995),
and Goldberg v. Sweet, 488 U.S. 252, 109 S.Ct. 582 (1989),
as situations where two States might permissibly impose
taxes on the same interstate transaction, i.e., a telephone
call between persons in different States (Goldberg) or the
purchase of a bus ticket from one State to another (Jeffer-
son Lines). DEC maintained that Scheiner has not “invali-
dated all flat taxes, but rather focused on “the methods by
which the flat taxes are assessed.” DEC also argues that
the remedial action fee “is apportioned, as much as it can
be,” because

there is no relation between miles driven and the
potential cost of clean up if there is an accident.
One of the most significant factors in the expense
of a clean-up is the location of the spill, e.g.,
the proximity to a stream or the nature of the

i ciltpreeerte eee
Renee

App. 106

subsurface conditions and whether they impede
the migration into ground water. ** * These
cases [Scheiner and Goldberg] show that the
commerce clause does not require the adoption of
an apportionment formula that does not make
sense.

In its rebuttal comments, AWHMT disagreed with
each of DEC’s arguments. AWHMT stated that the amount
of the Tennessee remedial action fee is not reasonable
because, except for one other State, it is the highest “flat,
unapportioned” fee imposed on transporters of hazardous
materials, and it is excessive when compared to “the level
of the transporter’s instate activity” or the “DEC clean-up
costs, even if transportation-related.” AWHMT asserted
that mileage “is plainly relevant to the risk imposed upon
the DEC, or the State for that matter, by the transporta-
tion of hazardous waste.” Citing the decisions in the Maine
(595 A.2d at 1017) and Massachusetts (613 N.E.2d at 103)
cases, AWHMT argued that the factors cited by DEC do
not vary between interstate and intrastate carriers and
that Scheiner requires a State to apportion its fees based
on mileage that the interstate carrier travels within the
State, unless it is impracticable to do so.

AWHMT also noted that RSPA takes into account the
number of high mileage transportation corridors in a State
in allocating grants under the Hazardous Materials
Emergency Preparedness (HMEP) grants program, carried
out in accordance with 49 U.S.C. 5116. AWHMT stated
that Tennessee received more than $500,000 from RSPA
under the HMEP grant program between 1993 and 1996
(and a total of $19.4 million over the FY 92 — FY ’96
period in Federal assistance for preparing and responding

App. 107

to transportation emergencies, according to a Department
of Energy report).

: AWHMT stressed that the remedial action fee is an
annual fee, which is the same regardless of the number of
shipments into or from Tennessee, and that an interstate
carrier is potentially exposed to a cumulative burden of
$32,500 if every State adopted a similar fee. It is because
the fee is set on an annual basis, rather than per ship-
ment, AWHMT stated, that the fee discriminates against
the interstate carrier who “would pay a fee up to 49 times
higher than the intrastate carrier for the same level of
total covered operations.”

RR ae ee ede tart

AWHMT also asserted that the same Commerce
Clause standards apply, whether Tennessee calls the
remedial action fee a tax or a fee, and that these fees are
“wholly unlike” the user fees in the Evansville-
Vanderburgh case and the inspection charges in V-1 Oil
and Interstate Towing because they are not related to the
usage of a facility or the services provided by the State. It
stated that any language in Evansville-Vanderburgh
sanctioning “flat, annual user charges” (which were not
involved in that case) cannot be relied on following the
Scheiner case. And it disputed DEC’s argument that the
“internal consistency” test should not apply to Tennessee’s
remedial action fee, stating:

6 MAA a SPIRIT MARI Ire ee

An interstate carrier faced with the prospect
of paying $650 plus permit fees in advance of any
contract for at least a single delivery or pickup of
waste in Tennessee is subject to pressure to avoid
the State altogether. By the same token, if every
State implemented a system like the DEC reme-
dial action, Tennessee transporters would be
pressured to stay out of interstate commerce. The

App. 108

DEC remedial action fee thus runs squarely afoul
of the fundamental Commerce Clause principle
that “revenue measures must maintain state
boundaries as a neutral factor in economic deci-
sion-making.” [Scheiner, 483 U.S. at 283]

AWHM'T also disagreed with DEC's argument that the
remedial action fee is justified because the State regulates
hazardous waste more closely than it does hazardous
substances. According to AWHMT, both must be trans-
ported in accordance with the HMR, which requires the
use of the Uniform Hazardous Waste Manifest for hazard-
ous wastes (but not other hazardous materials) and refers
to the Environmental Protection Agency’s requirement
that a transporter of hazardous waste clean up any release
during transportation. See 49 CFR 171.3 (note), 172.205;
40 CFR Part 263. AWHMT asserted that, “[ilf environ-
mental protection fee were in fact the goal, this fee would
apply to all hazmat carriers, not just hazwaste transport-
ers picking up or delivering hazardous waste in the State.”

In Evansville-Vanderburgh, the Supreme Court found
that a state or local “toll” would pass muster under the
Commerce Clause so long as it “ig based on some fair
approximation of use or privilege for use, ... and is nei-
ther discriminatory against interstate commerce nor
excessive in comparison with the governmental benefit
conferred.” 405 U.S. at 716-17, 92 S.Ct at 1355. In that
case, the Court also indicated that “a State may impose a
flat fee for the privilege of using its roads, without regard
to the actual use by particular vehicles, so long as the fee
is not excessive.” 405 U.S. at 715, 92 S.Ct. at 1355. How-
ever, in Scheiner, the Court limited the application of this
latter proposition to those situations where a flat tax is
“the only practicable means of collecting revenues from

App. 109

users and the use of a more finely graduated user-fee
schedule would pose genuine administrative burdens.” 483
U.S. at 296, 107 S.Ct. at 2847. More recently, the Court
stated that “a levy is reasonable under Evansville if it (1)
is based on some fair approximation of the use of the
facilities, (2) is not excessive in relation to the benefits
conferred, and (3) does not discriminate against interstate
commerce.” Northwest Airlines, Inc. v. Kent, 510 U.S. 355,
367-68, 114 S.Ct. 855, 864 (1994).

As a fixed annual fee, regardless of the number of
pick-ups or deliveries of hazardous waste within the State,
Tennessee’s remedial action fee differs from the per-trip
fees in Evansville-Vanderburgh and from the sales or gross
receipts taxes on specific interstate transactions in the
Jefferson Lines and Goldberg cases. It is also different
from the fees charged to offset inspections performed by
the State in the V-1 Oil and Interstate Trucking decisions,
where the cost of performing a required inspection would
be expected to the same amount for both interstate and
intrastate companies. There is an absence of any evidence
that Tennessee’s $650 annual fee has any approximation
to transporters’ use of roads or other facilities within the
State, or that “genuine administrative burdens” prevent
the application of a more finely graduated user fee to
transporters who pick up or deliver hazardous waste
within the State. Accordingly, Tennessee's remedial action
fee fails the test of “reasonableness” in Evansville-
Vanderburgh.

This test appears to be the most appropriate one for
interpreting the fairness requirement in 49 U.S.C.
5125(g)(1). RSPA notes that the House Committee on
Energy and Commerce first used the word “reasonable” in
referring to this requirement, H.R. Report No. 101-444,

App. 110

Part 1, p. 49 (1990), although this evolved into “equitable”
in the 1990 amendments, Pub. L. 101-615, § 18, 104 Stat.
3260, and then to “fair” in the 1994 codification of the
Federal hazardous material transportation law. Pub. L
103-272, 108 Stat. 783. As noted by AWHMT, Senator
Exon subsequently stated in floor debate that, “even
though the recodification refers to fees that are ‘fair’
rather than ‘equitable,’ the usual constitutional commerce
clause protections remain applicable and prohibit fees that
discriminate or unduly burden interstate commerce.”
Cong. Rec. $11324 (Aug. 11, 1994).

RSPA notes that it is not simply a potential for multi-
ple fees, but the lack of any relationship between the fees
paid and the respective benefits received by interstate and
intrastate carriers, that establishes discrimination against
interstate commerce. As the Massachusetts Supreme
Judicial Court stated in the case brought by ATA challeng-
ing that State’s hazardous waste transporter fee:

[as] viewed from the perspective of the user, as it
must be, it is apparent that the fee does not vary
on any “proxy for value” obtained from the Com-
monwealth. An _ interstate hazardous waste
transporter which travels just one time in the
Commonwealth must pay the same fee as a local
hazardous waste transporter. It is therefore ap-
parent that the “privilege” of using the compli-
ance program is more valuable to local
transporters so that the practical effect of appor-
tioning total costs on a per vehicle basis is to dis-
criminate against interstate commerce.

415 Mass. at 347, 613 N.E.2d at 102. The Wisconsin Court
of Appeals discussed the difference between a tax on

App. 111

“services provided by disposal facilities” within the State,
which

would be constitutionally permissible under the
Commerce Clause because the tax would be im-
posed on the delivery of services within the state.
Chapter SERB 4 fees are not related to the ser-
vices provided by in-state disposal facilities to in-
terstate transporters but to carriers who cross
the state line to use a facility in Wisconsin. Such
fees are not “apportioned” in that they are unre-
lated to the extent of the mileage traveled within
the state. Such a flat tax or fee clearly violates
the spirit of the Commerce Clause to avoid the
economic Balkanization that plagued relations
among the Colonies and later among the States
under the Articles of Confederation.

556 N.W.2d at 766-67.

The statutory provisions directing DOT to issue
Federal regulations governing uniform forms and proce-
dures for State registration and permitting of persons who
offer or transport hazardous materials (to be based on the
recommendations of a working group) specifically provide
that DOT’s regulations may “not define or limit the
amounts of a fee a State may impose or collect.” 49 U.S.C.
5119(c)\1). RSPA “has never relied on the potential cumu-
lative effect of a [fee] requirement as a basis for finding
inconsistency,” IR-17, Illinois Fee on Transportation of
Spent Nuclear Fuel, 51 FR 20926, 20934 (June 9, 1986),
although RSPA has previously acknowledged the “impact
of widespread adoption of such fees [may be] relevant to
Commerce Clause litigation.” IR-17, Action on Appeal, 53
FR 36200, 36201 (Sept. 25, 1987). Here, there is no show-
ing that the potential for other States to adopt fees, by
itself, makes the Tennessee remedial action fee unfair.

7

App. 112

Because Tennessee’s remedial action fee imposed on
hazardous waste transporters is not based on some fair
approximation of the use of the facilities and discriminates
against interstate commerce, it is not fair and violates 49
U.S.C. 5125(g(1) and is preempted by Federal hazardous
material transportation law.

3. The “Used For” Test

DEC acknowledged that “many of the situations the
fund is used for are not related to transportation,” but
argued that it should not have to create “two sub-funds,
one for transportation incidents and one for everything
else.” If so, DEC claimed, there would be greater total
costs for the additional “staff to administer the program
[and] it is quite likely that the transporters would have to
pay a much larger fee to support a fund capable of paying
the costs of a significant removal and remediation effort at
a hazardous substance site.”

DEC refused to concede that “any money paid by a
transporter has actually been paid for any of these other
situations or purposes because the fund has not been
below $170,000 in the time period of concern.” It also
stated that “Congress clearly authorized fees such as
Tennessee’s” because

The Hazardous Waste Remedial Action Fund
is the only source of funds available to the De-
partment of Environmental Conservation, or the
State of Tennessee, which can be used to hire
contractors to address emergencies caused by
spills of hazardous waste resulting from trans-
portation accidents.

App. 113

DEC argued that even though it has spent less than
$15,000 from this fund in cleaning up highway and rail
incidents, “[i]t just happens that the liable party is doing
that work rather than the state’s contractor.” DEC as-
serted that the fund provides the capability for emergency
response, including developing, implementing, and super-
vising contracts, and that it is inappropriate to compare
receipts and costs in any single year. It stated that
Ҥ 5125(g) does not require that we look into what events
occur in what years with the possible result that the fee
would be preempted in some years and not in others.”

DEC contrasts its remedial action fee with the fees
charged by Los Angeles County which RSPA found to be
preempted in PD-9(R), 60 FR 8774, 8784 (Feb. 15, 1995),
petition for reconsideration pending. It stated that the fees
considered in PD-9(R) paid for administration of a re-
quirement that businesses plan for emergency response to
hazardous materials not in transportation, rather than the
State’s own capability for emergency response to a trans-
portation incident. DEC also argued that “what the fees
are actually spent on is irrelevant,” under the Evansville-
Vanderburgh case and New Hampshire Motor Transport
Ass’n v. Flynn, 751 F.2d 43 (1st Cir. 1984). These cases,
according to DEC, show that “it is permissible under the
commerce clause and the HMTA to combine the purposes
of a fund.”

In its application; AWHMT asserted that Tennessee’s
remedial action fee is preempted because none of the uses
of the Hazardous Waste Remedial Action Fund “address
enforcement and emergency response for transportation of
hazardous materials within the meaning of 49 U.S.C.
5125(g)(1).” In rebuttal comments, AWHMT questions
whether “inactive hazardous substance sites” properly

App. 114

include the location of a hazardous material transporta-
tion incident, because the carriers are known parties from
which the State can recover clean-up costs. It also ques-
tioned whether the “‘clean up’ after an emergency has
been abated is ‘transportation-related’ within the meaning
of 49 U.S.C. 5125(g)(1).” AAR agreed that none of the
purposes listed in Tennessee Code 68-212-205, for which
the fund may be used, “target transportation activities.”
HMAC stated that, while these monies may be used “for
many worthwhile purposes * * * the use of funds for these
activities is not related to the transportation of hazardous
material, as required by Federal statute, and therefore not
permitted.”

AAR also stated in its rebuttal comments that a
“separate transportation program” for use of the remedial
action fees would not necessarily involve greater costs
because “Tennessee can create a separate program with
shared administrative costs.” AAR argued that, because
there is no segregation of the fees paid by transporters of
hazardous waste, it is impossible to find that these fees
are being used only for transportation purposes, as re-
quired by § 5125(g)(1). AAR pointed out that the trans-
porters themselves, rather than the State, have paid the
cost of cleaning up train incidents.

With respect to DEC’s statement that the Hazardous
Waste Remedial Action Fund is the only source of funds
available to clean up spills of hazardous waste in transpor-
tation, AAR contended that, even if correct, this point is
irrelevant:

Congress did not add a qualification that a
State fee would not be preempted if it were the
only source of funds for a particular purpose.
*** [TJhere is nothing to prohibit Tennessee

App. 115

from developing an emergency response capabil-
ity utilizing a fee that does not violate the dic-
tates of 49 U.S.C. § 5125(g).

AWHMT referred to the responsibility of transporters to
respond to an incident and the Federal financial responsi-
bility requirements in 49 CFR Part 387 to cover environ-
mental damage. It also pointed to Federal assistance,|
including grants by RSPA under the HMEP program. |

In response to DEC’s arguments that it had not
actually used fees collected from transporters for non-
transportation purposes, AWHMT addressed several
points. It argued that the fact that the funds are commin-
gled in a single fund precludes a claim of “non-use,” that
the State may not properly collect fees on transportation
and hold them indefinitely because § 5125(g)(1) requires
that they be “used” for transportation-related activities,
and that the total amount collected from transporters is at
least $500,000, rather than the $170,000 just for 1996.

CERCLA was enacted “te provide for a national
inventory of inactive hazardous waste sites” and to author-
ize EPA “to take emergency assistance and containment
actions with respect to such sites,” finances by a “Super-
fund.” H.R. Report No. 96-1016, Part I, Interstate and
Foreign Commerce Committee, p. 17 (May 16, 1990), as
reprinted in 1980 U.S. Code Congressional and Adminis-
trative News, pp. 6119-20. In 1986, Congress amended
CERCLA to provide additional funding “to clean up the
Nation’s worst abandoned hazardous waste sites and
uncontrolled leaking underground storage tanks.” H.R.
Report No. 99-253, Part I, Energy and Commerce Commit-
tee, p. 54, as reprinted in 1986 U.S. Code Congressional
and Administrative News, p. 2836. While an “inactive” or
“abandoned” waste site could result from a release in

—e — — —

App. 116

transportation, it is clear that the primary purpose of the
Superfund was not to provide for the cleanup of transpor-
tation incidents.

Tennessee acknowledges that the primary purpose of
its remedial action fund is similarly to clean up “inactive
hazardous substance sites.” The State argues that the
fund is also available (and is the only source for) cleaning
up a release of a hazardous substance in transportation,
but it admits that it has spent less than $15,000 in super-
vising cleanup activities conducted by transporters — out of
the approximately $170,000 it collects each year. Without
providing specific figures, Tennessee seems to claim that
the unspecified excess that has been built up since 1994 is
simply being kept in reserve for possible future transpor-
tation incidents.

This does not satisfy the requirement in 49 U.S.C.
5125(g)(1) that hazardous material transporter fees must
be “used for a purpose related to transporting hazardous
material, including enforcement and planning, developing,
and maintaining a capability for emergency response.” If
the State prefers not to create and maintain a separate
fund for fees paid by hazardous materials transporters,
then it must show that it is actually spending these fees
on the purposes permitted by the law. In this area where
only the State has the information concerning where these
funds are spent, more specific accounting is required.
Under section 5125(g)(2(B), upon RSPA’s request, a State
must report on “the purposes for which the revenues from
the fee are used.” In the April 6, 1998 public notice, RSPA
asked Tennessee to set forth in detail how much it col-
lected and how it used the fees it collected in fiscal year
1996-97. Although DEC’s comments included information
on the amounts of remedial action fees collected, the State

US Rte ce Ow bm

App. 117

accounted for less than $15,000 in expenditures. Although
it claims that the current balance in the remedial action
fund exceeds the amount collected from transporters in
any one year, DEC has failed to demonstrate that none of
the fees collected from transporters were spent for non-
transportation purposes. Nor has it justified imposing fees
on transporters of hazardous waste simply to create a
large surplus for the future.

Because Tennessee is not using the remedial action
fees paid by hazardous waste transporters for purposes
related to transporting hazardous material, that fee
violates 49 U.S.C. 5125(g)(1) and is preempted by Federal
hazardous material transportation law.

C. Written Notification of Incidents

The HMR require a carrier to submit to RSPA, “within
30 days of the date of discovery,” a written report of
certain incidents that occur during the course of transpor-
tation, including any “unintentional release of hazardous
materials from a packaging (including a tank) or [when]
any quantity of hazardous waste has been discharged
during transportation.” This report must be submitted on
DOT Form F 5800.1 and, when it pertains to a discharge
of hazardous waste, a copy of the hazardous waste mani-
fest must be attached, and “[a]n estimate of the quantity of
the waste removed from the scene, the name and address
of the facility to which it was taken, and the manner of
disposition of any removed waste must be entered in
Section IX of the report form.” 49 CFR 171.16(a).

Section 171.16 was added to the HMR in 1970 in
response to a recommendation of the National Transporta-
tion Safety Board that DOT develop and establish a

App. 118
uniform system for reporting incidents in the transporta-
tion of hazardous materials by all modes. Final Rule,
Reports of Hazardous Materials Incidents, 35 FR 16836,
16837 (Oct. 31, 1970); see also RSPA’s notice of proposed
rulemaking (NPRM), 34 FR 17450 (Oct. 29, 1969). In the
NPRM, RSPA stated that:

The information derived from these reports
will be used by the Department: (1) As an aid in
evaluating the effectiveness of the existing regu-
lations; (2) to assist in determining the need for
regulatory changes to cover changing transporta-
tion safety problems; and (3) to determine the
major problem areas so that the attention of the
Department may be more suitably directed to
those areas.

Id. In 1989, the time for submitting written incident
reports was increased from 15 days to 30 days after the
carrier’s discovery of the incident, and DOT Form F 5800.1
was revised. Final Rule, Detailed Hazardous Materials
Incident Reports, 54 FR 25806, 25813 (June 19, 1989).
RSPA has recently begun a new rulemaking proceeding to
evaluate the need for any change in the reporting re-
quirements and consider changes to DOT Form F 5800.1
to obtain more useful information and reduce the burdens
on the carriers who are required to submit these reports.
See RSPA’s advance notice of proposed rulemaking, 64 FR
13943 (March 23, 1999).

Under DEC Rule 1200-1-11-.04(4)(a)4, a carrier must
also send a written report to DEC “on each hazardous
waste discharge during transportation that occurs in”
Tennessee. This written report must be submitted
“within fifteen days of occurrence,” and must include
specified information about the discharge, “a discussion of

App. 119

the cause of the emergency, and a summary of the emer-
gency response (including the treatment or disposition of
any spilled waste or contaminated material).” A copy of the
hazardous waste manifest must be included with the
report. The note to DEC Rule 1200-1-11.-04(4)(a)4 indi-
cates that a copy of DOT Form F 5800.1 “shall suffice for
this report provided that it is properly completed and
supplemented as necessary to include all information
required by this paragraph.”

Although AAR contended that DEC requires “more
information [to] be provided” than on DOT Form F 5800.1,
and DEC admitted that its requirement calls for “addi-
tional information to be submitted besides what is re-
quired on DOT form 5800.1,” no party specified what
additional information is required. Conceding that its
written incident notification requirement is preempted,
DEC stated that its “[s]taff has been advised to amend
those rules accordingly.” In rebuttal comments, AWHMT
asserted that DEC has not clarified whether it intends to
eliminate its written incident notification requirement or
revise that requirement to either be more “consistent with
the data sets on DOT form 5800.1 or otherwise require
carriers to provide to the DEC a copy of the DOT form
5800.1.” DEC Rule 1200-1-11-.04(4)(a)4 has not been
revised in the current (March 1999) version of DEC’s rules
available on the State of Tennessee internet homepage.

Aside from the differing time periods in which the
reports must be filed, and issues concerning the informa-
tion that m st be included, AWHMT refers to RSPA’s prior
holdings that Federal hazardous material transportation
law preempts a State requirement for the carrier to
directly submit a copy of the incident report form that it
must send to RSPA. HMAC states that “Federal law does

App. 120

not require localities to receive written reports when
hazardous waste releases occur within their jurisdiction.”

In IR-2, RSPA contrasted State requirements for
submission of follow-up written reports with the separate
need for local emergency responders to have immediate
oral or telephonic notification of an transportation incident
involving hazardous materials. RSPA stated that:

The written notice required to be supplied to
[DOT] pursuant to 49 CFR 171.16 precludes the
State from requiring additional written notice di-
rected to hazardous materials carriers. * * * In
light of the Federal written notice requirement,
however, it is inappropriate for a State to impose
an additional written notice requirement to ap-
ply solely to carriers already subject to the Haz-
ardous Materials Regulations. The detailed
hazardous materials incident reports filed with
[DOT] are available to the public.

44 FR at 75568, affirmed on appeal in IR-2(A), 45 FR
71881, 71884 (Oct. 30, 1980), and in National Tank Truck
Carriers, Inc. v. Burke, 535 F. Supp. 509 (D.R.I. 1982),
aff’d, 698 F.2d 559 (1st Cir. 1983).

In IR-3, Boston Rules Governing Transportation of
Certain Hazardous Materials Within the City, 46 FR
18918, 18924 (Mar. 26, 1981), RSPA referred to its earlier
decision in IR-2 and the procedures for RSPA to provide to
a “designated State agency” copies of the written reports
required by 49 CFR 171.16. RSPA reiterated its ruling that
a State or locality may not require a carrier to directly
submit a copy of the DOT Form F 5800.1:

Subsequent written reports required within
15 days by DOT are not necessary to local emer-
gency response. These reports themselves are

App. 121

publicly available, and [RSPA] is prepared to
routinely send copies of written reports to a des-
ignated State agency on request. Copies of writ-
ten reports required by DOT ** * may not be
required by [the City’s ordinance].

46 FR at 18924. In response to an administrative appeal
submitted by the City of Boston, RSPA further explained
that:

the information in a written incident report * * *
will very often be of only limited usefulness, is
not time-sensitive, and in any event can be ob-
tained by the City [from RSPA] with only a
minimum of effort. If the City in fact intends to
make serious use of the information in DOT inci-
dent reports, the effort to obtain it from [RSPA]
rather than the carrier should not be significant.
Accordingly, we reaffirm our previous conclusion
that Boston’s requirement that carriers submit
written reports is redundant, unnecessary, and
inconsistent with the HMTA and HMR.

IR-3(A), 47 FR 18457, 18462 (Apr. 29, 1982). Accord, IR-
31, Louisiana Statutes and Regulations on Hazardous
Materials Transportation, 55 FR 25572, 25582 (June 21,
1990), appeal dismissed as moot, 57 FR 41165 (Sept. 9,
1992), where RSPA found that

the provisions of State law which require the
submission of written accident/incident reports
are redundant with Federal requirements (par-
ticularly 49 CFR 171.16), tend to undercut com-
pliance with the HMR requirements, and thus
are inconsistent. [citations] This rationale also
_ applies to requirements to provide copies of the
incident reports filed with [RSPA]; as indicated

App. 122

in IR-3, supra, such a requirement is inconsis-
tent, but [RSPA] is prepared to routinely send
copies of those reports to a designated state
agency on request.

In the 1990 amendments to the HMTA, Congress
provided that non-Federal requirements on written
incident notification are preempted unless they are sub-
stantively the same as in the HMR. 49 U.S.C.
5125(b)(1)(D). In H.R. Report No. 101-444, Part I, at 34-35
(1990), the House Committee on Energy and Commerce
set forth its belief that

uniform requirements for written notices and re-
ports describing hazardous materials incidents
will allow for the development of an improved in-
formational database, which in turn may be used
to assess problems in the transportation of haz-
ardous materials. Without consistency in this
area, data related to hazardous materials inci-
dents may be misleading and confusing. Addi-
tional State and local requirements would also be
burdensome on those involved in such incidents
and may lead to liability for minor deviations.

DOT has long encouraged States to adopt and enforce
requirements for transporting hazardous materials that
are consistent with the HMR. Under its Motor Carrier
Safety Assistance Program, see 49 CFR Part 350, FHWA
provides grants to States that adopt and enforce require-
ments that are compatible with both the HMR and the
FHWA’s Federal Motor Carrier Safety Regulations
(FMCSR) at 49 CFR Parts 390-399.

App. 123

Tennessee has adopted the HMR, including 49 CFR
171.16, as State law, Rule 1200-2-1-.32." The State re-
ceived more than $1.8 million in fiscal year 1999 from
DOT to enforce the HMR and the FMCSR. Accordingly,
Tennessee may require a carrier to file a written incident
report with RSPA, under the same conditions specified in
49 CFR 171.16, and it may impose penalties on a carrier
that fails to file the required written incident report with
RSPA. Tennessee may also obtain from RSPA copies of
incident reports filed by carriers in order to enforce this
filing requirement and to conduct follow-up investigations
of incidents occurring within the State. In each of these
respects, Tennessee is acting “substantively the same as”
Federal law. However, Tennessee may not require a carrier
to file a copy of the DOT Form F 5800.1 report, or a sepa-
rate incident report, directly with the State. This last
requirement is substantively different from the HMR.

DEC Rule 1200-1-11.-04(4)(a)4 is preempted because
it is not substantively the same as 49 CFR 171.16.

IV. Ruling
Federal hazardous material transportation law

preempts:

1. Tennessee Code 68-212-203(a)(6) and Rule 1200-1-
13.03(1)(e), requiring a transporter who picks up or

7 Tennessee Code 68-212-107(d) also provides that “Regulations
providing requirements for the transportation, containerization, and
labeling of hazardous waste shall be consistent with those issued by the
United States department of transportation * * *”

App. 124

delivers hazardous waste within the State to pay a reme-
dial action fee, currently set at $650 per year.

2. Tennessee Rule 1200-1-11-.04(4)(a)4, requiring a
transporter of hazardous waste to submit a written report
on a discharge of hazardous waste during transportation.

IV. [sic] Petition for Reconsideration/Judicial Review

In accordance with 49 CFR 107.211(a), “[alny person
aggrieved” by this decision may file a petition for reconsid-
eration 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 RSPA’s final decision 20
days after publication in the Federal Register if no
petition for reconsideration is filed within that time. The
filing of a petition for reconsideration is not a prerequisite
to seeking judicial review of this decision under 49 U.S.C.
5125(f).

If a petition for reconsideration of this decision is filed
within 20 days of publication in the Federal Register,
the action by RSPA’s Associate Administrator for Hazard-
ous Materials Safety on the petition for reconsideration
will be RSPA’s final decision. 49 CFR 107.211(d).

ROC A

App. 125

Issued in Washington, D.C. on September 30, 1999.

Alan I. Roberts,
Aamobinte Administrator for H _—
[FR Doc. 99-26037 Filed 10-5-99; 8:45 4
BILLING CODE 4910-60-P

Materials Safety.

m]

App. 126

APPENDIX F
49 U.S.C. § 5125(d) (1997)

(d) Decisions on preemption. - (1) A person
(including a State, political subdivision of a State, or
Indian tribe) directly affected by a requirement of a State,
political subdivision, or tribe may apply to the Secretary,
as provided by regulations prescribed by the Secretary, for
a decision on whether the requirement is preempted by
subsection (a), (b)(1), or (c) of this section. The Secretary
shall publish notice of the application in the Federal
Register. The Secretary shall issue a decision on an appli-
cation for a determination within 180 days after the date
of the publication of the notice of having received such
application, or the Secretary shall publish a statement in
the Federal Register of the reason why the Secretary’s
decision on the application is delayed, along with an
estimate of the additional time necessary before the
decision is made. After notice is published, an applicant
may not seek judicial relief on the same or substantially
the same issue until the Secretary takes final action on
the application or until 180 days after the application is
filed, whichever occurs first.

(2) After consulting with States, political subdivi-
sions of States, and Indian tribes, the Secretary shall
prescribe regulations for carrying out paragraph (1) of this
subsection.

(3) Subsection (a) of this section does not prevent a
State, political subdivision of a State, or Indian tribe, or
another person directly affected by a requirement, from
seeking a decision on preemption from a court of competent

App. 127

jurisdiction instead of applying to the Secretary under
paragraph (1) of this subsection.

App. 128

APPENDIX G
49 C.E.R. §§ 107.203 to 107.213 (2002)
PREEMPTION DETERMINATIONS
§ 107.203 Application.

(a) With the exception of highway routing matters
covered under 49 U.S.C. 5125(c), any person, including a
State or political subdivision thereof or an Indian tribe,
directly affected by any requirement of a State or political
subdivision thereof or an Indian tribe, may apply to the
Associate Administrator for a determination of whether
that requirement is preempted by § 107.202 (a) or (b).

(b) Each application filed under this section for a
determination must:

(1) Be submitted to Associate Administrator for
Hazardous Materials Safety, Research and Special Pro-
grams Administration, U.S. Department of Transporta-
tion, Washington, DC 20590-0001. Attention: Hazardous
Materials Preemption Docket;

(2) Set forth the text of the State or political subdivi-
sion or Indian tribe requirement for which the determina-
tion is sought;

(3) Specify each requirement of the Federal hazard-
ous material transportation law or the regulations issued
thereunder with which the applicant seeks the State or
political subdivision or Indian tribe requirement to be
compared;

(4) Explain why the applicant believes the State or
political subdivision or Indian tribe requirement should or
should not be preempted under the standards of § 107.202;
and

App. 129

(5) State how the applicant is affected by the State
or political subdivision or Indian tribe requirement.

(c) The filing of an application for a determination
under this section does not constitute grounds for noncom-
pliance with any requirement of the Federal hazardous
material transportation law or the regulations issued
thereunder.

(d} Once the Associate Administrator has published
notice in the FEDERAL REGISTER of an application received
under paragraph (a) of this section, no applicant for such
determination may seek relief with respect to the same or
substantially the same issue in any court until final action
has been taken on the application or until 180 days after
filing of the application, whichever occurs first. Nothing in
§ 107.203(a) prohibits a State or political subdivision or
Indian tribe, or any other person directly affected by any
requirement of a State or political subdivision thereof or
Indian tribe, from seeking a determination of preemption
in any court of competent jurisdiction in lieu of applying to
the Associate Administrator under paragraph (a) of this
section.

[Amdt. 107-24, 56 FR 8622, Feb. 28, 1991, as amended by
Amdt. 107-25, 57 FR 20428. May 13, 1992; Amdt. 107-32,
59 FR 49131, Sept. 26, 1994; Amdt. 107-38, 61 FR 21098,
May 9, 1996]

§ 107.205 Notice.

(a) If the applicant is other than a State, political
subdivision, or Indian tribe, the applicant shall mail a
copy of the application to the State, political subdivision,
or Indian tribe concerned accompanied by a statement

App. 130

that the State, political subdivision, or Indian tribe may
submit comments regarding the application to the Associ-
ate Administrator. The application filed with the Associate
Administrator must include a certification that the appli-
cant has complied with this paragraph and must include
the names and addresses of each State, political subdivi-
sion, or Indian tribe official to w!\om a copy of the applica-
tion was sent.

(b) The Associate Administrator will publish notice
of, including an opportunity to comment on, an application
in the FEDERAL REGISTER and may notify in writing any
person readily identifiable as affected by the outcome of
the determination.

(c) Each person submitting written comments to the
Associate Administrator with respect to an application
filed under this section shall send a copy of the comments
to the applicant and certify to the Associate Administrator
that he or she has complied with this requirement. The
Associate Administrator may notify other persons partici-
pating in the proceeding of the comments and provide an
opportunity for those other persons to respond. Late-filed
comments are considered so far as practicable.

[Amdt. 107-38, 61 FR 21098, May 9, 1996]

§ 107.207 Processing.

(a) The Associate Administrator may initiate an
investigation of any statement in an application and
utilize in his or her evaluation any relevant facts obtained
by that investigation. The Associate Administrator may
solicit and accept submissions from third persons relevant

App. 131

to an application and will provide the applicant an oppor-
tunity to respond to all third person submissions. In
evaluating an application, the Associate Administrator
may consider any other source of information. The Associ-
ate Administrator on his or her own initiative may con-
vene a hearing or conference, if he or she considers that a
hearing or conference will advance his or her evaluation of
the application.

(b) The Associate Administrator may dismiss the
application without prejudice if:

(1) He or she determines that there is insufficient
information upon which to base a determination; or

(2) He or she requests additional information from
the applicant and it is not submitted.

[Amdt. 107-3, 41 FR 38171, Sept. 9, 1976, as amended by
Amdt. 107-24, 56 FR 8621, 8622, Feb. 28, 1991; Amdt. 107-
38, 61 FR 21098, May 9, 1996]

§ 107.209 Determination.

(a) Upon consideration of the application and other
relevant information received, the Associate Administrator
issues a determination.

—-

(b) The determination includes a written statement
setting forth the relevant facts and the legal basis for the
determination, and provides that any person aggrieved
thereby may file a petition for reconsideration with the
Associate Administrator.

(c) The Associate Administrator provides a copy of
the determination to the applicant and to any other person

App. 132

who substantially participated in the proceeding or re-
quested in comments to the docket to be notified of the
determination. A copy of each determination is placed on
file in the public docket. The Associate Administrator will
publish the determination or notice of the determination
in the FEDERAL REGISTER.

(d) A determination issued under this section consti-
tutes an administrative determination as to whether a
particular requirement of a State or political subdivision
or Indian tribe is preempted under the Federal hazardous
material transportation law or regulations issued there-
under. The fact that a determination has not been issued
under this section with respect to a particular requirement
of a State or political subdivision or Indian tribe carries no
implication as to whether the requirement is preempted
under the Federal hazardous material transportation law
or regulations issued thereunder.

[Amdt. 107-24, 56 FR 8623, Feb. 28, 1991, as amended by
Amdt. 107-25, 57 FR 20428, May 13, 1992; Amdt. 107-32,
59 FR 49131, Sept. 26, 1994; Amdt. 107-38, 61 FR 21098,
May 9, 1996]

§ 107.211. Petition for reconsideration.

(a) Any person aggrieved by a determination issued
under § 107.209 may file a petition for reconsideration
with the Associate Administrator. The petition must be
filed within 20 days of publication of the determination in
the FEDERAL REGISTER.

(b) The petition must contain a concise statement of
the basis for seeking review, including any specific factual or
legal error alleged. If the petition requests consideration of

App. 133

information that was not previously made available to the
Associate Administrator, the petition must include the
reasons why such information was not previously made
available.

(c) The petitioner shall mail a copy of the petition to
each person who participated, either as an applicant or
commenter, in the preemption determination proceeding,
accompanied by a statement that the person may submit
comments concerning the petition to the Associate Admin-
istrator within 20 days. The petition filed with the Associ

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1854%3A1. Public record. Not legal advice.