Application by Association of Waste Hazardous Materials Transporters for a Preemption Determination as to Broward County, Florida's Requirements on the Transportation of Certain Hazardous Materials to or From Points in the County

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

[Docket No. RSPA-98-3577 (PDA-18(R))]

Application by Association of Waste Hazardous Materials

Transporters for a Preemption Determination as to Broward County,

Florida's Requirements on the Transportation of Certain Hazardous

Materials to or From Points in the County

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

ACTION: Public notice and invitation to comment.

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SUMMARY: Interested parties are invited to submit comments on an

application by the Association of Waste Hazardous Materials

Transporters (AWHMT) for an administrative determination whether

Federal hazardous materials transportation law preempts requirements

enforced by Broward County, Florida, concerning the transportation of

certain hazardous materials to or from points in the County.

DATES: Comments received on or before September 21, 1998, and rebuttal

comments received on or before November 4, 1998, will be considered

before an administrative ruling is issued by RSPA's Associate

Administrator for Hazardous Materials Safety. Rebuttal comments may

discuss only those issues raised by comments received during the

initial comment period and may not discuss new issues.

ADDRESSES: The application and all comments received may be reviewed in

the Dockets Office, U.S. Department of Transportation, Room PL-401, 400

Seventh Street, SW, Washington, DC 20590-0001. The application and all

comments are also available on-line through the home page of DOT's

Docket Management System, at ``http://dms.dot.gov.''

Please submit comments to the Dockets Office at the above address.

Comments may also be submitted by E-mail to

``[email protected].'' Each comment should refer to the Docket

Number set forth above. A copy of each comment must also be sent to

[[Page 42099]]

(1) Mr. Michael Carney, Chairman, Association of Waste Hazardous

Materials Transporters, 2200 Mill Road, Alexandria, VA 22314, and (2)

Mr. John J. Copelan, Jr., County Attorney, 115 S. Andrews Avenue, Suite

423, Fort Lauderdale, FL 33301. A certification that a copy has been

sent to these persons must also be included with the comment. (The

following format is suggested: ``I certify that copies of this comment

have been sent to Messrs. Carney and Copelan at the addresses specified

in the Federal Register.'')

A list and subject matter index of hazardous materials preemption

cases, including all inconsistency rulings and preemption

determinations, are available through the home page of RSPA's Office of

the Chief Counsel, at ``http://rspa-atty.dot.gov.'' A paper copy of

this list and index will be provided at no cost upon request to Ms.

O'Berry, at the address and telephone number set forth in ``For Further

Information Contact'' below.

FOR FURTHER INFORMATION CONTACT: Donna L. O'Berry, Office of the Chief

Counsel, Research and Special Programs Administration, U.S. Department

of Transportation, Washington, DC 20590-0001 (Tel. No. 202-366-4400).

SUPPLEMENTARY INFORMATION:

I. Application for a Preemption Determination

AWHMT has applied for a determination that Federal hazardous

material transportation law, 49 U.S.C. 5101 et seq., preempts certain

provisions of the Broward County Code of Ordinances 93-47 (``Code'').

The Code is an extensive set of regulations that is designed to protect

the Biscayne Aquifer from possible harm due to the infiltration of

hazardous materials into the aquifer. The Code was amended in 1993 to

address concern pertaining to generation, use, storage, handling,

processing, manufacturing and disposal of hazardous materials in

Broward County. The text of AWHMT's application and a list of

attachments are set forth in Appendix A. A paper copy of the

attachments to AWHMT's application will be provided at no cost upon

request to Ms. O'Berry, at the address and telephone number set forth

in ``For Further Information Contact'' above.

AWHMT's challenges the definition of ``Hazardous Materials'' and

related terms used in the Code and nine specific requirements:

--Code Sec. 27-355(a)(1) containing release reporting requirements,

--Code Sec. 27-356(b)(4)d.1 and Code Sec. 27-356(d)(4)a.1 containing

shipping paper retention requirements,

--Code Sec. 27-356(d)(4)a.2 containing standards for waste-hauling

vehicles,

--Code Sec. 27-356(d)(4)a.3 containing periodic vehicle inspection

requirements,

--Code Sec. 27-356(d)(4)a.4 containing requirements that waste-hauling

vehicles be marked with an identification tag issued by the County,

--Code Sec. 27-356(d)(4)a.6 containing training requirements for

drivers and other appropriate personnel,

--Code Sec. 27-356(d)(4)a.7 containing fee requirements for a license

to transport discarded hazardous material within the County,

--Code Sec. 27-356(d)(4)b.1 containing requirements to request a

modification from the County prior to utilizing a vehicle for

transporting a type of waste that is not specified on the current

license, and

--Code Sec. 27-356(d)(4)c.1 containing reporting requirements for

monthly activity reports to be submitted to the County.

The following discussion is based upon the copy of Broward County's

Code, Chapter 27 attached to AWHMT's application.

Definition of ``Hazardous Material'' and Related Terms

Code Sec. 27-352 defines a hazardous material to include, among

other things, any substance identified as hazardous in the most current

version of the HMR, as well as other Federal regulations, and any other

substance not previous specific that is known to be a hazard due to

quantity, concentration, physical, chemical or infectious

characteristics and which the Department of Natural Resources

Protection (DNRP) determines to pose an actual threat or potential risk

to water supply, the environment or health and safety. Secs 27-352

(4)and (5). AWHMT contends that the County's definition of hazardous

material is broader than the definition of a hazardous material

contained in the HMR. In addition, AWHMT contends that the definitions

of combustible liquid and flammable liquid found in Code Sec. 27-352

are not consistent with the Federal standards. AWHMT challenges the

Ordinance's provisions concerning the designation, description and

classification of hazardous materials as not ``substantially the same''

as DOT's designation and classification system found at 49 CFR 172.

Release Reporting

Code 27-355(a)(1) requires the responsible party of an unauthorized

hazardous material release to immediately report the release by

telephone to the DNRP and to file written notification of its verbal

report with the DNRP within seven calendar days. The Code defines

responsible party as, among other things, the owner or operator of a

facility or any person who accepts or accepted any hazardous material

for transport. The Code defines facility to include, among other

things, any motor vehicle, vessel, rolling stock, or aircraft.

AWHMT states that the written requirements are not substantially

the same as the requirements of 49 CFR 171.16, which require a carrier

to report in writing to DOT each incident of an unintentional release

of a hazardous materials or discharge of hazardous waste that occurs

during the course of transportation. The written report must be filed

with DOT within 30 days of the discovery of the release.

Concerning the oral notification requirement, AWHMT also challenges

the specific requirement that the notification must go to the DNRP,

rather than a local emergency operator. AWHMT contends that the time

required to locate the proper local agency number would create an

unreasonable delay in reporting. Thus, AWHMT requests that the County's

requirement to notify a specific local agency, rather than the local

emergency operator, be preempted under the obstacle test.

Shipping Paper Requirements

Code Secs. 27-356(b)(4)d.1 and 27-356(d)(4)a.1 and Sec. 27-

356(b)(4)d.1 require owners and operators of hazardous material

facilities to retain copies of hazardous waste manifests on-site for

five years. AWHMT cites to EPA regulations that require generator and

transporters to retain copies of the Uniform Manifest for three years.

AWHMT further asserts that there is no Federal requirement for the

location where such records must be maintained. AWHMT contends that

because DOT recognizes the Uniform Manifest as a shipping paper, the

County's requirements should be preempted under the ``substantively the

same as'' test.

Standards for Packagings

Code Sec. 27-356(d)(4)a.2 requires all waste hauling vehicles to be

product-tight or to be designed to effectively contain any release of

hazardous material during transportation. AWHMT

[[Page 42100]]

contends that terms such as ``product-tight'' and ``any release'' may

exclude DOT-authorized cargo tanks, since those tanks are equipped with

pressure relief valves. AWHMT also contends that, by specifically

referring to vehicles, the County Ordinance suggests that vehicles not

authorized as packagings, such as trailers, must meet packaging

standards. AWHMT contends that the County Ordinance does not grant

equivalency to the HMR's packaging standards contained in 49 CFR 173,

178 and 180, and, therefore, should be preempted as not ``substantively

the same as'' the Federal requirement.

Periodic Vehicle Inspection Requirement

Code Sec. 27-356(d)(4)a.3 gives the County the option to inspect

licensed vehicles. The Ordinance provides that the DNRP can waive the

inspection of such vehicles if the licensee submits evidence that the

vehicle has passed an inspection conducted pursuant to applicable

Federal or state regulations. AWHMT asserts that the County's periodic

inspection regulation causes a delay in the transportation of hazardous

materials and should be preempted under the obstacle test.

Vehicle Marking Requirements

Code Sec. 27-356(d)(4)a.4 requires that vehicles used to transport

discarded hazardous materials be marked with a County identification

tag. AWHMT contends that this provision should be preempted under 49

U.S.C. 5125(b)(1)(E) because it is not substantively the same as the

Federal requirements for marking a package or container qualified for

transporting hazardous materials.

Training Requirements

Code Sec. 27-356(d)(4)a.6 requires that a licensee provide ``all

drivers and other appropriate personnel * * * classroom instruction

and/or on the job training that ensures compliance with the provisions

of the [Code].'' Training must include annual training in the

implementation of the licensee's spill contingency plan and procedures.

The Ordinance requires that records, containing the name of each

employee trained and dates of training must be kept for three years

following the employee's last day of work or until the carrier goes out

of business. AWHMT contends that localities do not have the authority

to impose training requirements on hazmat employees, and, therefore,

Code Sec. 27-356(d)(4)a.6 should be preempted under the obstacle test.

Fee Requirements

Code Sec. 27-357(a) authorizes the DNRP to charge fees for

licenses. Code Sec. 27-356(d)(4)a.7 requires an annual fee for a

discarded hazardous materials license. Currently the fee is $175 per

vehicle. Section 5125(g)(1) of 49 U.S.C. permits a State, political

subdivision of a State, or Indian tribe to impose a fee related to

transporting hazardous material only if the fee is fair and used for

purposes related to transporting hazardous material. AWHMT challenges

the County's fees under the obstacle test.

License Modification Requirements

Code Sec. 27-356(d)b.1 provides that ``vehicles may only be

utilized for the type of wastes for which the licensee is authorized to

haul. A license modification must be requested and approved by DNRP

prior to utilizing a vehicle for hauling a waste which is not specified

on the current license.'' AWHMT contends that this advance notice

requirement has the potential to unreasonably delay hazardous materials

transportation and cites to 49 CFR 177.800(d), which requires that

shipments of hazardous materials must be transported without

unnecessary delay. For these reasons, AWHMT requests that RSPA preempt

the regulation under the obstacle test.

Reporting Requirements

Code 27-356(d)(4)c.1 requires carriers of discarded hazardous

materials to submit monthly reports to the DNRP. The reports must ``at

a minimum, identify the facility name and address for each source,

type, and quantity of waste, the date the waste was collected, and the

final destination of each waste that was hauled during the preceding

month.'' The report must also include ``a summary of the total

quantities of each type of waste that was hauled by the licensee.''

AWHMT challenges this provision under the obstacle test.

II. Federal Preemption

Section 5125 of Title 49 U.S.C. contains several preemption

provisions that are relevant to AWHMT's application. Subsection (a)

provides that--in the absence of a waiver of preemption by DOT under

Sec. 5125(e) or specific authority in another Federal law--a

requirement of a State, political subdivision of a State, or Indian

tribe is preempted if

(1) Complying with a requirement of the State, political

subdivision or tribe and a requirement of this chapter or a

regulation issued under this chapter is not possible; or

(2) The requirement of the State, political subdivision, or

Indian tribe, as applied or enforced, is an obstacle to the

accomplishing and carrying out this chapter or a regulation

prescribed under this chapter.

These two paragraphs set forth the ``dual compliance'' and ``obstacle''

criteria which RSPA had applied in issuing inconsistency rulings before

1990, under the original preemption provisions in the Hazardous

Materials Transportation Act (HMTA). Pub. L. 93-633 Sec. 112(a), 88

Stat. 2161 (1975). The dual compliance and obstacle criteria are based

on U.S. Supreme Court decisions on preemption. Hines v. Davidowitz, 312

U.S. 52 (1941); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S.

132 (1963); Ray v. Atlantic Richfield, Inc., 435 U.S. 151 (1978).

Subsection (b)(1) of 49 U.S.C. 5125 provides that a non-Federal

requirement concerning any of the following subjects, that is not

``substantively the same as'' a provision of Federal hazardous

materials transportation law or a regulation prescribed under that law,

is preempted unless it is authorized by another Federal law or DOT

grants a waiver of preemption:

(A) The designation, description, and classification of

hazardous material.

(B) The packing, repacking, handling, labeling, marking, and

placarding of hazardous material.

(C) The preparation, execution, and use of shipping documents

related to hazardous material and requirements related to the

number, contents, and placement of those documents.

(D) The written notification, recording, and reporting of the

unintentional release in transportation of hazardous material.

(E) The design, manufacturing, fabricating, marking,

maintenance, reconditioning, repairing, or testing of a packaging or

a container represented, marked, certified, or sold as qualified for

use in transporting hazardous material.

Subsection (g)(1) of 49 U.S.C. 5125 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 purpose relating to transporting

hazardous materials, including enforcement and planning, developing,

and maintaining a capability for emergency response.

These preemption provisions in 49 U.S.C. carry out Congress's view

that a single body of uniform Federal regulations promotes safety in

the transportation of hazardous materials. In considering the HMTA, the

Senate Commerce Committee ``endorse[d] the principle of preemption in

order to preclude a multiplicity of State and local regulations and the

potential for varying as well as conflicting regulations in the area of

hazardous materials transportation.'' S. Rep. No. 1102, 93rd Cong. 2nd

Sess. 37 (1974).

[[Page 42101]]

When it amended the HMTA in 1990, Congress specifically found that:

(3) Many States and localities have enacted laws and regulations

which vary from Federal laws and regulations pertaining to the

transportation of hazardous materials, thereby creating the

potential for unreasonable hazards in other jurisdictions and

confounding shippers and carriers which attempt to comply with

multiple and conflicting registration, permitting, routing,

notification, and other regulatory requirements,

(4) Because of the potential risks to life, property, and the

environment posed by unintentional releases of hazardous materials,

consistency in laws and regulations governing the transportation of

hazardous materials is necessary and desirable,

(5) In order to achieve greater uniformity and to promote the

public health, welfare, and safety at all levels, Federal standards

for regulating the transportation of hazardous materials in

intrastate, interstate, and foreign commerce are necessary and

desirable.

Pub. L.101-615 Sec. 2, 104 Stat. 3244. A Federal Court of Appeals has

found that uniformity was the ``linchpin'' in the design of the HMTA,

including the 1990 amendments which expanded the preemption provisions.

Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1575 (10th Cir.

1991). (In 1994, the HMTA was revised, codified and enacted ``without

substantive change,'' at 49 U.S.C. Chapter 51. Pub. L. 103-272, 108

Stat. 745.)

Under 49 U.S.C. 5125(d)(1), any directly affected person may apply

to the Secretary of Transportation for a determination whether a State,

political subdivision or Indian tribe requirement is preempted. The

Secretary of Transportation has delegated authority to make

determinations of preemption that concern highway routing to FHWA and

those concerning all other hazardous materials transportation to RSPA.

49 CFR 1.48(u)(2), 1.53(b).

Section 5125(d)(1) requires that notice of an application for a

preemption determination must be published in the Federal

RegisterFollowing the receipt and consideration of written comments,

RSPA will publish its determination in the Federal Register. See 49

C.F.R. 107.209(d). A short period of time is allowed for filing of

petitions for reconsideration. 49 C.F.R. 107.211. Any party to the

proceeding may seek judicial review in a Federal district court. 49

U.S.C. 5125(f).

Preemption determinations do not address issues of preemption

arising under the Commerce Clause of the Constitution or under statutes

other than the Federal hazardous materials transportation law unless it

is necessary to do so in order to determine whether a requirement is

authorized by another Federal law. A State, local or Indian tribe

requirement is not authorized by another Federal law merely because it

is not preempted by another Federal statute. Colorado Pub. Util. Comm'n

v. Harmon, above, 951 F2d 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 provisions, which

RSPA has implemented through its regulations.

III. Public Comment

Comments should be limited to whether Federal hazardous material

transportation law preempts Broward County, Florida's requirements

challenged by AWHMT. Comments should:

(A) Set forth in detail the manner in which these requirements are

applied and enforced; including but not limited to:

(1) Whether the County's description and classification of

hazardous materials substantially differs from the HMR and potential

effects of any differences;

(2) The impact of the County's requirement in Sec. 27-355(a)(1) to

immediately notify the DNRP, rather than an emergency response number,

of a release;

(3) Whether the County's requirements in Sec. 27-356(d)(4)a.2 that

packages be product-tight or contain any release on cargo tanks

includes DOT-authorized cargo tanks and whether this requirement

applies to vehicles that are not considered packages;

(4) The amount of fees collected and the purposes for which those

fees are used;

(5) The potential delays that would be caused by the County's

requirement in 27-356(d)b.1 that a licensee request a license

modification prior to hauling a waste that is not specified on the

current license; and

(B) Specifically address the preemption criteria described in Part

II above.

Persons intending to comment should review the standards and

procedures governing RSPA's consideration of applications for

preemption determinations, set forth at 49 CFR 107.201-107.211.

Issued in Washington, DC, on July 31, 1998.

Alan I. Roberts,

Associate Administrator for Hazardous Materials Safety, Research and

Special Programs Administration.

Appendix A--Before the United States Department of Transportation

Office of Hazardous Materials Safety

Application of the Association of Waste Hazardous Materials

Transporters To Initiate a Proceeding To Determine Whether Various

Requirements Imposed by the County of Broward, Florida on Persons

Involved in the Transportation of Certain Hazardous Materials to or

From Points in the County Are Preempted by the Hazardous Materials

Transportation Act

April 9, 1998.

Interest of the Petitioner

The Association of Waste Hazardous Materials Transporters

(AWHMT) represents companies that transport, by truck and rail,

waste hazardous materials, including industrial, radioactive and

hazardous materials, throughout the United States, including points

to and from the County of Broward, FL (County). Despite full

compliance with the hazardous materials regulations (HMRs), members

of the AWHMT are precluded from transporting certain hazardous

materials to or from points in the County unless certain

requirements of the Broward County Hazardous Materials Ordinance

(Ordinance) 1 are met. The AWHMT asserts that the County

requirements are in contravention to the Hazardous Materials

Transportation Act (HMTA).

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\1\ Ordinance 93-47, enacted on November 23, 1993.

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Background

When the County proposed its Ordinance in 1993, the hazardous

materials transportation industry submitted written and oral

comments.2 The substance of the comments pointed out how

the proposed requirements were inconsistent with federal

requirements and urged the County to conform the proposed

requirements to federal standards. However, with one notable

exception that will be mentioned later, the County enacted the

proposed rules without substantive change. The County indicated that

it preferred to deal with any inconsistencies with federal standards

on a case-by-case basis, stating, in a cover letter accompanying the

final text of the Ordinance, that, ``if an industry member has a

specific question regarding the applicability of the ordinance to a

particular fact pattern

[[Page 42102]]

or case, DNRP will address the concern as need arises.''

3

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\2\ Letter to Lisa Zima Bosch, Office of the Broward County

Attorney, from Cynthia Hilton, Chemical Waste Transportation

Institute (CWTI), November 4, 1993; letter to Kevin Burger, Broward

County Department of Natural Resource Protection, from Cynthia

Hilton, CWTI, November 18, 1993; and statement before the Broward

County Commissioners, by Cynthia Hilton, CWTI, November 23, 1993.

\3\ Letter to Cynthia Hilton, CWTI, from Lisa Zima Bosch, Office

of the County Attorney, May 26, 1994.

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Despite the County's ``flexible'' enforcement promise, it has

not deterred the County from enforcing requirements, as the attached

affidavits attest, which we believe to be inconsistent with the HMR

and therefore subject to preemption under the HMTA. The Ordinance

provides that the County may use ``[a]ny enforcement proceedings

authorized by the Code of the Laws of Florida * * * to enforce the

provisions of [the Ordinance].'' 4 In addition,

violations of the Ordinance may result in the suspension or

revocation of a permit.5

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\4\ Broward County Code of Ordinances Chapter 27, Article XII,

(hereinafter ``Code''), Sec. 27-357(d). Attached is evidence of the

County's use of this authority. In a notice of violation, the County

declares its authority to enforce civil penalties under Code

Sec. 27-38(f)(2)and criminal penalties under Secs. 775.082 and

775.083, Florida Statutes.

\5\ See attached ``General Conditions'' of a License, item 1.

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The Ordinance authorizes the County's Department of Natural

Resource Protection (DNRP) ``to the extent permitted by state and

federal law * * * to license, evaluate, review, and administer all

hazardous materials activities * * * performed in Broward County.''

6 The Ordinance defines ``hazardous material'' as:

\6\ Code Sec. 27-351. Copy attached.

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any substance or mixture of substances which meets any one of the

following criteria:

(1) Hazardous materials as defined in this Article; 7

or

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\7\ ``Hazardous materials'' is defined as ``any substance

defined or identified as a hazardous material in 40 CFR parts 260-

265 and appendices, promulgated pursuant to the Resource

Conservation and Recovery Act * * *.''

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(2) Any substance listed in [Code] Chapter 27, Article XIII,

Appendix A; or

(3) Any petroleum product or any material or substance

containing discarded petroleum products; or

(4) Any substance identified as hazardous in the most current

version of the following regulations:

(a) Comprehensive Environmental Response Compensation, and

Liability Act * * *,

(b) Emergency Planning and Community Right-to-Know Act,

(c) Hazardous Material Transportation Act * * *,

(d) Federal Insecticide, Fungicide, and Rodenticide Act * * *.

(5) Any substance, not specified above, which is known to be

hazardous due to quantity, concentration, physical, chemical or

infectious characteristics and which DNRP determines poses an actual

threat or potential risk to water supplies, to the environment or to

health and safety.8

\8\ Code Sec. 27-352: Definition of ``Hazardous Material.''

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Clearly, the Ordinance applies to and affects the transportation

of hazardous materials regulated pursuant to the HMTA.

County Requirements for Which a Determination is Sought

This application seeks preemption of the following County

requirements:

Code Sec. 27-352: Definition of ``Hazardous Material''

and related terms.

Code Sec. 27-355(a)(1) : Release reporting.

Code Sec. 27-356(b)(4)d.1. & Sec. 27-356(d)(4)a.1.:

Shipping paper requirements.

Code Sec. 27-356(d)(4)a.2.: Standards for packagings.

Code Sec. 27-356(d)(4)a.3.: Periodic vehicle inspection

requirements.

Code Sec. 27-356(d)(4)a.4.: Vehicle marking

requirements.

Code Sec. 27-356(d)(4)a.6.: Training requirements.

Code Sec. 27-356(d)(4)a.7.: Fee requirements.

Code Sec. 27-356(d)(4)b.1.: Prenotification

requirements.

Code Sec. 27-356(d)(4)c.1.: Recordkeeping and reporting

requirements.

Federal Law Provides for the Preemption of Non-Federal Requirements

When Those Non-Federal Requirements Fail Certain Federal Preemption

Tests

The Hazardous Materials Transportation Act (HMTA) was enacted in

1975 to give the U.S. Department of Transportation (DOT) 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.'' 9 By vesting primary

authority over the transportation of hazardous materials in the DOT,

Congress intended to ``make possible for the first time a

comprehensive approach to minimization of the risks associated with

the movement of valuable but dangerous materials.'' 10 As

originally enacted, the HMTA included a preemption provision ``to

preclude a multiplicity of State and local regulations and the

potential for varying as well as conflicting regulations in the area

of hazardous materials transportation.'' 11 The Act

preempted ``any requirement, of a State or political subdivision

thereof, which is inconsistent with any requirement set forth in

[the Act], or in a regulation issued under [the Act].''

12 This preemption provision was implemented through an

administrative process where DOT would issue ``inconsistency

rulings'' as to,

\9\ P.L. 93-633 Sec. 102.

\10\ S. Rep. 1192, 93rd Cong., 2d Sess., 1974, page 2.

\11\ S. Rep. 1192, 93rd Cong., 2d Sess, 1974, page 37.

\12\ P.L. 93-633 Sec. 112(a).

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[w]hether compliance with both the State or political subdivision

requirement and the Act or the regulations issued under the Act is

possible; and [t]he extent to which the State of political

subdivision requirement is an obstacle to the accomplishment and

execution of the Act and the regulations issued under the Act.''

13

\13\ 41 FR 38171 (September 9, 1976).

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These criteria, commonly referred to as the ``dual compliance''

and ``obstacle'' tests, ``comport[ed] with the test for conflicts

between Federal and State statutes enunciated by the Supreme Court

in Hines v. Davidowitz, 312 U.S. 52 (1941).'' 14

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\14\ 41 FR 38168 (September 9, 1976).

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In 1990, Congress codified the dual compliance and obstacle

tests as the Act's general preemption provision.15 The

1990 amendments also expanded on DOT's preemption authorities.

First, Congress expressly preempted non-federal requirements in five

covered subject areas if they are not ``substantively the same'' as

the federal requirements. These covered subject areas are:

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\15\ 49 U.S.C. Sec. 5125(a).

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The designation, description, and classification of

hazardous materials.

The packing, repacking, handling, labeling, marking and

placarding of hazardous materials.

The preparation, execution, and use of shipping

documents pertaining to hazardous materials and requirements

respecting the number, content, and placement of such documents.

The written notification, recording, and reporting of

the unintentional release in transportation of hazardous materials.

The design, manufacturing, fabrication, marking,

maintenance, reconditioning, repairing, or testing of a package or

container which is represented, marked, certified, or sold as

qualified for use in the transportation of hazardous materials.

16

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\16\ 49 U.S.C. 5125(b).

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``Substantively the same'' was defined to mean ``conforms in

every significant respect to the Federal requirement. Editorial and

other similar de minimis, changes are permitted.'' 17

Second, non-federal highway routing requirements that fail to

satisfy the federal standard under 49 U.S.C. 5112(b) are preempted.

18 Third, non-federal registration and permitting forms

and procedures that are not ``the same'' as federal regulations to

be issued are preempted. 19 Forth, non-federal fees

related to the transportation of hazardous materials are preempted

unless the fees are ``fair and used for a purpose related to

transporting hazardous materials.'' 20 These preemption

authorities are limited only to the extent that non-federal

requirements are ``otherwise authorized'' by federal law. A non-

federal requirement is not ``otherwise authorized by Federal law''

merely because it is not preempted by another federal statute.

21

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\17\ 49 CFR 107.202(d).

\18\ 49 U.S.C. 5125(c).

\19\ 49 U.S.C. 5119(c)(2).

\20\ 49 U.S.C. Sec. 5125(g).

\21\ Colo. Pub. Util. Comm'n v. Harmon, 951 F. 2d, 1571, 1581

n.10, (10th Cir. 1991).

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The hazardous materials regulations (HMRs) have been promulgated

in accordance with the HMTA's direction that the Secretary of

Transportation ``issue regulations for the safe transportation of

hazardous material in intrastate, interstate, and foreign

commerce.'' 22 ``Transportation'' is defined as ``the

movement of property and loading, unloading, or storage incidental

to the movement.'' 23

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\22\ 49 U.S.C. 5103(b).

\23\ 49 U.S.C. 5102(12).

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[[Page 42103]]

Our review of federal law and the Ordinance lead us to believe

that the following specific Ordinance requirements are subject to

preemption pursuant to 49 U.S.C. 5125(a)(2) and (b) absent further

modification and/or clarification:

The Designation, Description, and Classification of Hazardous

Material in Transportation is Reversed to the Federal Government

The HMTA provides that non-federal rules designating,

describing, and classifying hazardous materials for transportation

is preempted unless the non-federal rules are substantively the same

as the federal rules. As noted above, Code Sec. 27-352 defines

``hazardous material'' more broadly than the HMRs. Likewise, Code

Sec. 27-352 contains definitions of ``combustible liquid'' and

``flammable liquid'' that are not consistent with federal

standards.24 The disparity between federal and County

definitions, the redundancy within the County's definitions, and, in

particular, the open-ended discretion given the DNRP at Sec. 27-

352--Hazardous materials--(5) to name and regulate additional

substances of concern, illustrates the confusion that is faced by

hazardous materials transporters in understanding their regulatory

obligations.25 Clearly, the Ordinance provisions relating

to the ``designation, description, and classification of hazardous

materials'' are not ``substantively the same'' as DOT's designation

and classification system found at 49 CFR 172. We believe this

classification scheme, as it affects hazardous materials in

transportation, is preempted pursuant to 49 U.S.C. 5125(b)(1)(A).

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\24\ Also see County's definition of ``biomedical waste''.

\25\ Even the County's attempt to clarify materials of concern

by reference to federal law provokes confusion. The ordinance states

that a ``hazardous material,'' in the County's terminology, includes

``any substance identified as hazardous'' according to a number of

federal statutes. ``Hazardous substance'' is a term used in the

Comprehensive Environmental Response Compensation and Liability Act

(CERCLA). The Emergency Planning and Community Right-to-Know Act

(SARA Title III), lists ``acutely hazardous substances.''

``Hazardous substance,'' in the context of the HMTA, references the

hazardous substance list in CERCLA, making the reference to the HMTA

superfluous. No materials are identified as ``hazardous substances''

in the Federal Insecticide, Fungicide, and Rodenticide Act.

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The Written Notification, Recording, and Reporting of the

Unintentional Release in Transportation of Hazardous Material is

Reversed to the Federal Government and Locally Imposed Oral

Reporting Requirements Inconsistent With Federal Requirements Pose

an Obstacle to the Accomplishment and Carrying Out of the HMTA

Code Sec. 27-355(a)(1) requires the ``responsible party'' of an

unauthorized hazardous material release to ``immediately report''

unauthorized releases of hazardous materials by telephone to the

DNRP. Among other things, a ``responsible party'' is defined as the

``owner or operator of a facility'' where a ``facility'' includes

``any . . . motor vehicle, vessel, rolling stock, or aircraft,'' and

``[a]ny person . . . who accepts or accepted any hazardous material

for transport . . .''26 The Code also requires that

written notification of these verbal reports must be filed with the

DNRP within seven calendar days. The written notification must

``include at a minimum the location of the release, a brief

description of the incident that caused the release . . . a brief

description of the action taken to stabilize the situation, and any

laboratory analysis, if available.''27

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\26\ Code Sec. 27-352, definitions of ``responsible party'' and

``facility.''

\27\ Code Sec. 27-355(a)(1).

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In addressing this issue, RSPA will have to distinguish between

the County's written and verbal notification requirements. First, it

is clear that the County's written notification requirements are not

substantively the same as corresponding federal

requirements.28 The HMTA expressly preempts such

requirements.29 DOT has even moved to preempt non-federal

written incident reports when the non-federal requirement has been

only ``to provide copies of the incident reports filed with [DOT] .

. .''30 On the other hand, RSPA has generally not found

inconsistent requirements for immediate, oral incident reports.

31 While we do not dispute the necessity of and, in fact,

support immediate notice following an incident, we ask RSPA to

preempt the specific requirement that the notice must go to the

DNRP. Broward County is but one of over 30,000 local governmental

jurisdictions in the country. In recognition of this fact, the U.S.

Environmental Protection Agency provided an exception from release-

reporting requirements for ``an owner or operator of a facility

[which includes motor vehicles, rolling stock, and aircraft] from

which there is a transportation-related release if the owner/

operator provides immediate notice to the ``911 operator, or in the

absence of a 911 emergency telephone number, to the operator.''

32 A ``transportation-related release'' is defined as a

``release during transportation, or storage incident to

transportation if the stored substance is moving under active

shipping papers and has not reached the ultimate consignee.''

33 If all non-federal jurisdictions required immediate

reporting to a specific local agency, telephone-like books of

emergency phone numbers and reporting requirements would have to be

carried in every vehicle. In fact, we believe that the effort to

locate the correct number of each jurisdiction would unreasonably

delay such notice. For these reasons, we request that RSPA find

preempted the requirement to notify a specific local agency in lieu

of a notice to the local emergency operator under its obstacle test

preemption authority.34

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\28\ 49 CFR 171.16.

\29\ 49 U.S.C. 5125(b)(1)(D).

\30\ IR-31, 55 FR 25582 (June 21, 1990).

\31\ IR-2, 44 FR 75566 (December 20, 1979); IR-3, 45 FR 76838

(November 20, 1980); IR-32, 55 FR 36736 (September 6, 1990).

\32\ 40 CFR 355.40(b)(4)(ii).

\33\ Ibid.

\34\ 49 U.S.C. 5125(a)(2).

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The Preparation, Execution, and Use of Shipping Documents Related

to Hazardous Material and Requirements Related to the Number,

Contents, and Placement of Those Documents is Reserved to the

Federal Government

Code Sec. 27-356(b)(4)d.1. and Sec. 27-356(d)(4)a.1., by

reference to (b)(4)d.1., require that owner/operators of ``hazardous

material facilities,'' including facilities offering hazardous waste

for transport, and ``discarded hazardous material haulers'' to

retain copies of ``hazardous waste manifests'' of shipments to,

from, or through the County (if the through movement is via a

``transfer station'')35 for five years at hazardous

materials facilities these entities may operate in the County. EPA

requires such generators and transporters to retain copies of the

Uniform Manifest for a maximum of three years.36

Additionally, no federal requirement limits the location where the

transporter can retain those records. The Uniform Manifest is

recognized by DOT as a shipping paper.37 Non-federal

requirements pertaining to shipping papers are subject to the HMTA's

``substantively the same as'' test of preemption.

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\35\ Code 27-352, definition of ``transfer station'' includes

``any site ... whose primary purpose is to store ... discarded

hazardous materials ... prior to or during transport ... .''

\36\ 40 CFR 263.22(a).

\37\ 49 CFR 172.205(h).

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The Design, Manufacturing, Fabrication and Maintenance of a

Packaging or Container Which is Represented, Marked, Certified, or

Sold as Qualified for Use in the Transportation of Hazardous

Materials is Reserved to the Federal Government

As noted above, the HMTA preempts non-federal requirements

concerning the design, manufacture, fabrication, and maintenance of

a packaging offered as qualified for use in the transport of

hazardous materials. Uniformity in the construction and maintenance

of packagings, especially reusable packagings, is critical. The

Ordinance, however, requires all ``waste hauling vehicles [to] be

product-tight or be designed to effectively contain any release of

hazardous materials during transport.'' 38 (Emphasis

added.) This definition may seem consistent with the HMRs general

packaging standards.39 However, terms like ``product-

tight'' and ``any release'' 40 call into question whether

DOT-authorized cargo tanks would meet this standard because they are

equipped with pressure relief valves. Additionally, the Ordinance

keys its requirements to ``vehicles,'' suggesting that vehicles not

authorized as packagings, such as trailers, must meet ``packaging''

standards. Nowhere, does the Ordinance grant equivalency to the

packaging standards of the HMRs. Code Sec. 27-356(d)(4)a.2. should

be preempted pursuant to 49 U.S.C. 5125(b)(1)(E) because it is not

``substantively the same as'' the federal

[[Page 42104]]

packaging standards found at 49 CFR 173, 178, and 180.

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\38\ Code Sec. 27-356(d)(4)a.2.

\39\ 49 CFR 173.24.

\40\ Code Sec. 27-352, definition of ``release'' where

``release'' means the ``unauthorized spilling, leaking, . . .

emitting, . . . discharging, . . . of any hazardous materials . . .

to the air, water, soil or other natural resources . . . .''

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The Ordinance Requirements for Periodic Vehicle Inspections are

Preempted by the HMTA

When initially proposed, code Sec. 27-356(d)(4)a.3., would have

required all vehicles used for the transport of ``discarded

hazardous materials'' to, from or through the County (if the through

movement is via a ``transfer station'') to be inspected prior to the

issuance of a ``license identification tag'' that must be displayed

on the rear of the vehicle prior to transport. The inspection would

be valid for one year. After our industry provided the County with

evidence that DOT has preempted such non-federal periodic

inspections, 41 the final version of the code was amended

to provide that the DNRP could waive the inspection if the licensee

submitted ``evidence that the vehicle has satisfactorily completed

an inspection conducted pursuant to applicable federal or state

regulations.'' 42

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\41\ 58 FR 48933 (September 20, 1993), affirmed on

reconsideration 60 FR 8800 (February 15, 1995).

\42\ Code Sec. 27-356(d)(4)a.3..

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DOT has preempted, under the ``obstacle'' test, non-federal

periodic vehicle inspection requirements in the past because such

inspections can not be accomplished without ``unnecessary delay''

within the meaning of 49 CFR 177.853(a) and consequently the

requirement failed the obstacle test of the HMTA. The County cannot

be allowed to protect its inspection requirement against such

preemption by making the inspection waivable at the discretion of

the DNRP.

In practice, none of the documents distributed to licensees

suggests that the DNRP's inspection authority is discretionary, nor

has the County on its own initiative communicated to licensees the

potential to waive inspection requirements and the process by which

such a waiver could be obtained.43 Even if the County

announced a procedure to request a waiver based on the standard

provided at Code Sec. 27-356(d)(4)a.3.,--that the vehicle had

satisfactorily completed an inspection conducted pursuant to

applicable federal or state regulations--the requirement is still

defective because the Ordinance does not guarantee that the waiver

will be granted. Indeed, such evidence has been presented and the

DNRP has, nevertheless, required its own separate inspection, as the

attached affidavits attest.

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\43\ See attachment (E), citing ``No Vehicle (sic) shall be

utilized for hauling until it has been inspected by DNRP . . . .''

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The delay of hazardous materials transportation caused by the

inspection requirement is indisputable. To accomplish the County's

inspection requirement, motor carriers must schedule, in advance,

appointments to bring vehicles to the one inspection location in the

County. Vehicles must be delivered for inspection empty. Vehicle and

driver are detained for the inspection. Following the inspection,

the vehicles are marked with an official permanently attached

sticker as proof that the vehicle is qualified by the County to

transport discarded hazardous materials. The vehicle and driver are

then released.

If the County's vehicle inspection requirements are allowed to

stand, every non-federal jurisdiction could impose such

requirements. ``Discarded hazardous materials'' transportation via

motor carrier would, as a result, virtually cease inasmuch as the

vehicles would be routed, without cargo, from place to place to

obtain inspections. We believe that the County's periodic inspection

requirements, as distinguished from random, roadside inspections,

are preempted pursuant to 49 U.S.C. 5125(a)(2).

Non-Federal Marking Requirements on Cargo Tanks and Truck Trailers

Carrying Hazardous Materials Are Preempted

Code Sec. 27-356(d)(4)a.4. requires the marking of vehicles used

to transport discarded hazardous materials. The County Discarded

Hazardous Material Transport identification tag is to be placed on

the rear of the vehicle. (DNRP License Identification Tag example

attached.) The tag indicates the expiration date of the period for

which the vehicle is qualified to transport discarded hazardous

materials in the County. A new tag can be applied for after the

vehicle has successfully passed the County's vehicle inspection

requirements.

The HMTA provides that non-federal marking of a package or

container which is marked or otherwise certified pursuant to the

HMRs as qualified for use in the transportation of hazardous

materials is preempted unless the non-federal requirements are

substantively the same as federal requirements. We believe this

preemption standard--49 U.S.C. 5125(b)(1)(E) --is appropriate for

review of County's vehicle identification tag requirements. In fact,

similar vehicle marking requirements imposed by the State of

California were preempted under this standard.44

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\44\ 58 FR 48933 (September 20, 1993), affirmed on

reconsideration 60 FR 8800 (February 15, 1995).

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The Ordinance Requirements for Training are Preempted by the HMTA

Code Sec. 27-356(d)(4)a.6. requires the licensee to provide

``all drivers and other appropriate personnel . . . classroom

instruction and/or on the job training that ensures compliance with

the provisions of this [Code].'' At minimum, ``annual training in

the implementation of the licensee's spill contingency plan and

procedures is required. Additionally, records of the name of each

employee and dates of training must be kept on file for three years

following the employee's last day at work or until the carrier goes

out of business.

DOT prescribes requirements for the training of ``hazmat

employees.'' 45 A ``hazmat employee'' is defined as a

person ``who is employed by a hazmat employer and who in the course

of employment directly affect hazardous materials transportation

safety.'' DOT's standard requires hazmat employees to be trained

every three years, unless job responsibilities change more

frequently, and requires that training records be kept only for the

preceding three-year training period and only 90 days following the

employee's last day at work. States are allowed to impose more

stringent training requirements on such employees only if those

requirements do not otherwise conflict with DOT's training

requirements and apply only to drivers domiciled in that

state.46 There is no authority for localities to impose

training standards on such employees.

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\45\ 49 CFR 172, Subpart H.

\46\ 49 CFR 172.701.

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The County's training requirements, as they affect hazmat

employees, should be preempted based on the obstacle test at 49

U.S.C. 5125(a)(2).

The Fees Imposed by the Ordinance are not ``Fair'' and Subject to

Preemption Under the Obstacle Test

Code Sec. 27-357(a) authorizes the DNRP ``to charge fees for

licenses [based on] fees . . . adopted by the Board of County

Commissioners and set forth in the Administrative Code.'' Code

Sec. 27-356(d)(4)a.7. provides that the discarded hazardous

materials license will be payable annually. Currently, the license

fee is $175 per vehicle.

The County's per-vehicle fee is flat and unapportioned. The U.S.

Supreme Court has declared fees which are flat and unapportioned to

be unconstitutional under the Commerce Clause because, among other

things, such fees fail the ``internal consistency''

test.47 The Court reasoned that a state fee levied on an

interstate operation violates the Commerce Clause because, if

replicated by other jurisdictions, such fees lead to interstate

carriers being subject to multiple times the rate of taxation paid

by purely local carriers even though each carrier's vehicles operate

an identical number of miles.48 In addition, because they

are unapportioned, flat fees cannot be said to be ``fairly related''

to a feepayer's level of presence or activities in the fee-assessing

jurisdiction.49 In a number of subsequent cases, courts

have relied on these arguments to strike down, enjoin, or escrow

flat hazardous materials taxes and fees.50 The County's

per vehicle fee rate is comparable to that assessed by many states.

The substantial financial burden of meeting multiple state fee

requirements is magnified many times if local entities are permitted

to impose fees on carriers in every jurisdiction in which they

operate.

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\47\ American Trucking Assn's v. Scheiner, 483 U.S. 266 (1987).

\48\ Ibid., 284-86.

\49\ Ibid., 290-291 (citing Commonwealth Edison Co. v. Montana,

453 U.S. 609, 629 (1981)

\50\ American Trucking Assn's Inc. v. State of Wisconsin, No.

95-1714, 1996 WL 593806 (Wisc. App. Ct., October 1996); American

Trucking Assn's Inc. v. Secretary of Administration, 613 N.E.2d 95

(Mass. 1993); American Trucking Assn's Inc. v. Secretary of State,

595 A.2d 1014 (Me. 1991).

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We submit that flat fees also run afoul of the HMTA because some

motor carriers, otherwise in compliance with the HMRs, will

inevitably be unable to shoulder multiple flat-per vehicle fees, and

thus be excluded from some sub-set of fee-imposing jurisdictions. In

fact, motor carriers, as the

[[Page 42105]]

attached affidavits attest, have already restricted their hazardous

materials operations in the County because of the unfairness of the

fees. If the County's flat fee scheme is allowed to stand, similar

fees must be allowed in the Nation's other 30,000 non-federal

jurisdictions. The cumulative effect of such outcome would be not

only a generally undesirable patchwork of regulations necessary to

collect the various fees, but the balkanization of carrier areas of

operation and attendant, unnecessary handling of hazardous materials

as these materials are transferred from one company to another at

jurisdictional borders. The increased transfers would pose a serious

risk to safety, since ``the more frequently hazardous material is

handled during transportation, the greater the risk of mishap.''

51

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\51\ Missouri Pac. R.R. Co. v. Railroad Comm'n of Texas, 671 F.

Supp. 466, 480-81 (W.D. Tex. 1987).

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In recognition of these outcomes, Congress amended the HMTA, in

1990, to provide that a ``political subdivision . . . may impose a

fee related to transporting hazardous material only if the fee is

fair and used for a purpose related to transporting hazardous

material.'' 52 (Emphasis added.) Augmenting this

authority, Congress further provided, in the 1994 amendments to the

HMTA, that DOT collect information about the basis on which the fee

is levied.53 The then-Chairman of the Senate Subcommittee

to authorize the amendment explained that DOT was to use this

authority to determine if ``hazardous materials fees are excessive .

. . and therefore subject to preemption.'' 54 When

determining what constitutes ``fair'', the Chairman clarified that

``the usual constitutional commerce clause protections remain

applicable and prohibit fees that discriminate or unduly burden

interstate commerce.'' 55 In closely analogous

circumstances, the Supreme Court considered the meaning of 49 U.S.C.

1513(b), which authorizes States to impose ``reasonable'' charges on

the users of airports. The Court read the statute to apply a

``reasonableness standard taken directly from . . . dormant Commerce

Clause jurisprudence.'' 56 In the absence of any evidence

the Congress meant to sanction non-federal fees that are

discriminatory or malapportioned, a ``fair'' fee within the meaning

of 49 U.S.C. 5125(g)(1) surely is one that, at a minimum, complies

with the requirements of the Commerce Clause.

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\52\ 49 U.S.C. 5125(g)(1).

\53\ 49 U.S.C. 5125(g)(2).

\54\ Cong. Record, August 11, 1994, page 11324.

\55\ Ibid.

\56\ Northwest Airlines v. County of Kent, 510 U.S. 355, 374,

127 L.Ed. 2d 183, 114 S.Ct. 855 (1994).

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Additionally, it must be remembered that the Ordinance imposes

its challenged flat fees only on motor carriers of ``discarded

hazardous materials'' engaged in transportation operations to or

from the County. However, AWHMT has reviewed the hazardous materials

incident reports filed with DOT pursuant to 49 CFR 171.16 and

discovered, for the five-year representative period 1992-1996, that

no hazardous waste releases occurred.57 On the other

hand, 160 non-waste hazardous materials incidents were reported.

Twenty-one percent of these incidents resulted from shipments

traveling through the County. Twelve of the incidents were in the

air mode, two were in the rail mode. The County has unfairly

burdened select motor carriers of hazardous waste with fees and

requirements that are unsupported by the risk presented to the

citizens and/or environment of the County.

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\57\ Hazardous Materials Information System, U.S. Department of

Transportation--1992-1996, January 28, 1998.

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For the above listed reasons, we assert that flat fees are

inherently ``unfair'' and that the County's fee scheme should fall

to the obstacle test pursuant to 49 U.S.C. 5125(a)(2).

Regrettably, we have been unable to obtain information about

what use the County makes of the revenue from the discarded

hazardous material transporter fee. We request the County to provide

an accounting of its fee usage pursuant to this proceeding and,

based on the County's response, reserve the right to challenge the

County's discarded hazardous materials transporter fee under the

``used for'' test as well.

Prenotification Requirements are Preempted by the HMTA

Code Sec. 27-356(d)(4)b.1. provides that ``vehicles may only be

utilized for the type of wastes for which the licensee is authorized

to haul. A license modification must be requested and approved by

DNRP prior to utilizing a vehicle for hauling a waste which is not

specified on the license.''

While no such requirement exists in the HMRs, advance notice

requirements of hazardous material transportation have been

preempted.58 These requirements have the potential to

unreasonably delay hazardous materials transportation.59

``Congress expressly found that [non-federal] `notification'

requirements that `vary from Federal laws and regulations' create

`unreasonable hazards' and pose a `serious threat to public health and

safety.' . . . [Such requirement] obstructs the purpose and objective

of Congress and the Secretary.'' 60 For these reasons, we

request RSPA to find preempted the requirement to notify the County

about changes in the type of waste to be carried on a specific vehicle.

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\58\ IR-6, 48 FR 760 (January 6, 1983); IR-32, 55 FR 36736

(September 6, 1990).

\59\ 49 CFR 177.800(d).

\60\ Colorado Pub. Utilities Comm'n v. Harmon, 951 F.2d 1571

(10th Cir. 1991).

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Non-Federal Recordkeeping and Reporting Requirements are Subject to

Review Under the Obstacle Test

Code Sec. 27-356(d)(4)c.1. requires carriers of discarded

hazardous materials to submit monthly reports to the DNRP. The

report must ``at a minimum, identify the facility name and address

for each source, type, and quantity of waste, the date the waste was

collected, and the final destination of each waste that was hauled

during the preceding month.'' The report must also include ``a

summary of the total quantities of each type of waste that was

hauled by the licensee.''

With the exception of the monthly totals, this information is

all available from the Uniform Manifest. Federal law requires

Manifests to be retained by the carrier for three years, and, as

notes above, the County requires a five year retention period. The

DNRP has authority, pursuant to the Ordinance, to inspect these

documents upon request.61

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\61\ Code Sec. 27-356(b)(4)d.1.

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In the past, DOT has preempted requirements for information or

documentation in excess of federal requirements because such

requirements are an obstacle to the HMTA. There is no de minimus

exception to the ``obstacle'' test because thousands of

jurisdictions could impose de minimis information

requirements.62

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\62\ IR-8(A), 52 FR 13000 (April 20, 1987).

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Conclusion

The Ordinance imposes requirements on the transportation of

certain hazardous materials which we believe are preempted by

federal law. As the attached affidavits disclose, the County is

indeed enforcing the above suspect requirements despite its offer to

address individual carrier concerns about conflicts with federal

hazmat law as the need arises. When we discovered that the County

was indiscriminately enforcing its requirements, we recontacted the

County in October 1997 giving notice of our concerns and our

intention of file this application if the County was not prepared to

repeal these requirements on its own initiative. Despite our good-

faith effort to deal directly with the County on these matters, we

have not yet received a reply. We can no longer tolerate the

uncertainty created by the determination of the County to enforce

its suspect regulatory requirements. Consequently, we request timely

consideration of the concerns we have raised.

Certification

Pursuant to 49 CFR 107.205(a), we hereby certify that a copy of

this application has been forwarded with an invitation to submit

comments to: John J. Copelan, Jr., County Attorney, Office of the

County Attorney, 115 S. Andrews Avenue, Suite 423, Fort Lauderdale,

FL 33301.

Respectfully submitted,

Michael Carney,

Chairman.

Enclosures

cc: Ed Bonekemper, Asst. Chief Counsel for Hazardous Materials

Safety, RSPA--DCC-10, U.S. Department of Transportation, 400 Seventh

St., SW, Washington, DC 20590

Attachments

(A) County Ordinance 93-47

(B) Discarded Hazardous Materials (DHM) License Application

(C) Affidavits of:

Jessica M. Wise, A.R. Paquette & Company

[[Page 42106]]

Connie Buschur, Metropolitan Environmental/Omni Transport

Company

Diana L. Hughes, Environmental Transportation Services

Karla Simmons, Tri-State Motor Transit Company

(D) Sample notice of County's Enforcement Authority

(E) Sample ``General Conditions'' of a DHM License

(F) Sample DHM License with Instruction to Schedule Vehicle For

Inspection

(G) Sample Vehicle Marking

(H) Map to Vehicle Inspection Site

(I) Letter to Cynthia Hilton, CWTI, from Lisa Bosch, Broward County,

FL, May 26, 1994

[FR Doc. 98-21066 Filed 8-5-98; 8:45 am]

BILLING CODE 4910-60-P