Application by Association of Waste Hazardous Materials Transporters for a Preemption Determination as to Cleveland, Ohio Requirements for Transportation of Hazardous Materials
Federal RegisterSep 17, 1998
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DEPARTMENT OF TRANSPORTATION
Research and Special Program Administration
Federal Highway Administration
[Docket No. RSPA-98-3579 (PDA-20 (RF))]
Application by Association of Waste Hazardous Materials
Transporters for a Preemption Determination as to Cleveland, Ohio
Requirements for Transportation of Hazardous Materials
AGENCY: Research and Special Programs Administration (RSPA) and Federal
Highway Administration (FHWA), 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 of
the City of Cleveland, Ohio, concerning the transportation of
explosives and other hazardous materials within the City.
DATES: Comments received on or before October 19, 1998, and rebuttal
comments received on or before November 16, 1998, will be considered
before an administrative ruling is issued jointly by RSPA's Associate
Administrator for Hazardous Materials Safety and FHWA's Administrator.
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.''
Comments should be submitted to the Dockets Office at the above
address. Three copies of each written comment should be submitted.
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 (1)
Mr. Michael Carney, Chairman, Association of Waste Hazardous Materials
Transporters, 2200 Mill Road, Alexandria, VA 22314, and (2) Mr.
Sylvester Summers, Director of Law, City of Cleveland, City Hall--Room
106, 601 Lakeside Avenue, Cleveland, OH 44114. 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 Summers 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 issued, 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
Mr. Hilder, at the address and telephone number set forth in ``For
Further Information Contact'' below.
FOR FURTHER INFORMATION CONTACT:
Frazer C. Hilder, Office of the Chief Counsel, Research and Special
Programs Administration (Tel. No. 202-366-4400), or Raymond Cuprill,
Office of the Chief Counsel, Federal Highway Administration (Tel. No.
202-366-0834), U.S. Department of Transportation, Washington, DC 20590-
0001.
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
requirements of the City of Cleveland (``City'') applicable to the
transportation of explosives and other hazardous materials in and
through the City. The text of AWHMT's application and a list of the
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 Mr. Hilder, at the address and telephone number set forth in
FOR FURTHER INFORMATION CONTACT above.
The requirements challenged by AWHMT are contained in, or relate
to, provisions in Chapters 387 and 394 of the City's Consolidated
Ordinances (``City Code'') for permits to transport within the City any
explosive or a quantity of hazardous materials for which placarding is
required under the Hazardous Materials Regulations (HMR), 49 CFR Parts
171-180. The following discussion is based upon the copies of Chapters
387 and 394 of the City Code attached to AWHMT's application.
Permits for the transportation of explosives and other hazardous
materials within the City are issued by the City's Fire Department.
Secs. 387.07(a), 394.08. It is uncertain whether these permit
requirements in Chapters 387 and 394 apply only to motor carriers or to
all modes of transportation. The provisions that, without a permit,
``no person shall transport explosives'' (Sec. 387.07(a)) and ``[n]o
transportation of hazardous materials * * * is permitted''
(Sec. 394.08) seem to apply to all modes; however, AWHMT states that
only motor carriers are required to obtain permits and pay fees.
Explosives. Chapter 387 of the City Code governs the storage,
transportation, possession, sale and use of explosives within the City.
Sec. 387.02(g). However, this chapter does not
Apply to explosives while in course of transportation via
railroad, water or highway when the explosives are moving under the
jurisdiction of and in conformity with regulations adopted by the
Interstate Commerce Commission or the United States Coast Guard.''
\1\
\1\ It appears that the City originally adopted its explosive
permit requirement in 1958, in Ordinance No. 2074-58. At that time,
the Federal regulations governing the transportation of hazardous
materials were issued and administered by the Interstate Commerce
Commission (ICC) (with respect to rail and highway transportation)
and by the Coast Guard (with respect to water transportation).
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Based on this exception in Section 387.03, the City does not require an
explosives transporter that remains on interstate highways, while in
the City, to obtain an explosives permit, according to affidavits
submitted with AWHMT's application.
A permit to transport explosives may be issued for up to one year,
and the ``Application for the Transportation of Explosives'' form
states that the permit will not be effective beyond ``the expiration
date of the [required] insurance.'' Section 387.09 specifies minimum
amounts of liability and property damage insurance and requires
submission of a copy of the insurance policy with the permit
application. The blank copy of this application form provided with
AWHMT's application indicates that the permit fee is $50 and that the
applicant must provide its name and address and the following
additional information to obtain a permit to transport explosives:
--Types and quantities of explosives (the form states that a police
escort is required if more than 250 lbs. are transported);
--Name and permit number of each consignee (Sec. 387.07(c) provides
that a permit ``shall be issued for transportation of explosives
designated for delivery or consigned to a person holding a permit
for the storage or use of such explosives within the corporate
limits of the City'');
--Route to be taken within the City (Sec. 387.07(d) and (b),
respectively, provide
[[Page 49805]]
that the Director of Public Safety shall designate ``the route to be
taken,'' and that a permit will not be issued ``for the
transportation of explosives through the City * * * where an
alternate route lying wholly without [the City's] corporate limits
may be available and will not place an unreasonable burden on such
transportation'');
--Notification to the Fire Department ``24 hours in advance of all
deliveries''; and
--Information regarding the vehicle, including type, capacity,
license number, PUCO [Public Utilities Commission of Ohio] number,
condition, fire extinguishers and marking (Sec. 387.08(a)(4)
requires the vehicle to be ``plainly marked `DANGER, EXPLOSIVES' in
letters not less than six inches in height on both sides and on the
rear,'' and Sec. 387.08(a)(6) requires the vehicle to ``be equipped
with an least two fire extinguishers of a type or design'' inspected
and approved by the Fire Chief)
Section 387.08(a) also requires a vehicle used for transporting
explosives to be inspected by the Fire Department ``before a permit for
such transportation may be issued,'' but statements in affidavits
submitted with AWHMT's application indicate that the City is not
requiring or performing these inspections.
According to Sec. 387.04(b), the explosives permit ``shall at all
times be subject to inspections by any officer of the Fire or Police
Departments,'' implying (but not specifically stating) that the permit
must be carried on the vehicle transporting explosives.
AWHMT specifically challenges requirements in Chapter 387 for a
permit, permit fees, proof of insurance, routing and prenotification of
shipments, vehicle inspections, the number of fire extinguishers, and
the City's uncodified requirements for a police escort to accompany
shipments of more than 250 lbs of explosives.
Hazardous materials. Chapter 394 appears to have been adopted in
1992 and applies to ``all hazardous materials * * * which are
transported in and through the City of Cleveland.'' Section 394.02.
Those parts of the HMR in 49 CFR Parts 171, 172, 173 and 177 ``as they
exist at the time of passage of this chapter and as amended hereafter''
were adopted and incorporated into chapter 394, by Sec. 394.03(a), but
that section continues as follows:
(b) When any provision of this chapter is found to be in
conflict with the [HMR] regulations adopted in (a) above, the
provision which establishes the stricter standard for the promotion
and protection of the safety and welfare of the public shall
prevail.
The City has also adopted the requirements of the Federal Motor Carrier
Safety Regulations contained in 49 CFR Part 397 ``as referred to and
modified herein.'' Sec. 394.04.
The City's permit requirement applies to ``hazardous materials
required to be placarded'' by the HMR, but a permit is not required
``if transport in the City of Cleveland is limited to interstate
highways,'' or for ``the transportation of explosives pursuant to a
valid permit issued in accordance with Chapter 387'' of the City Code.
Secs. 394.05, 394.08. There are two forms of hazardous materials
permits, a temporary permit valid for 60 days and an annual permit, and
the permit must be obtained ``no later than immediately prior to the
first hazardous materials delivery or pickup in the City in any
calendar year.'' Sec. 394.08(a).
According to Sec. 384.08(b), a temporary permit is ``automatically
approved and valid upon receipt by the City of the required
information,'' which may be provided ``by letter, telephone, or in
person, or by any other communication.'' To obtain a temporary permit,
the applicant must pay a fee of $25 (Sec. 394.16) and provide, in
addition to its name, address and principal place of business:
--Its ICC, PUCO, or Federal motor carrier census number;
--Hazard class and approximate amounts of hazardous materials to be
transported within the City; and
--The name and address of the delivery or pickup point.
Within ten business days of issuance of a temporary permit, a copy must
be carried in the vehicle and available for inspection (before that
time a transporter need not have a copy of the temporary permit before
operating within the City). A temporary permit is not renewable, and
``only one such temporary permit shall be issued in any one calendar
year.'' Sec. 394.08(b).
A written application is required for an annual permit, accompanied
by ``proof of insurance or self insurance,'' and fees of $50 per hazard
class to be transported. Secs. 394.08(c), 396.16. The Fire Chief must
act on an application for an annual permit within 30 days of
submission, and the information to be provided on the application form
includes the motor carrier's name, address, and business address and
the following:
--Its ICC, PUCO, or Federal motor carrier census number;
--Types and quantities of hazardous materials, by hazard class,
chemical name, identification number, and number and type of
containers;
--Two emergency contacts (with telephone numbers) and whether the
transporter has a contract with a hazardous materials clean-up
contractor (with name, address, and telephone number of a contact
person);
--Number of vehicles to be covered by the permit (Sec. 394.08(c)
states that ``[s]eparate permits shall not be required for each
vehicle owned and operated by a single transporter, but each vehicle
shall carry a legible copy of the permit listing each permit
required for each class of material carried * * * within ten (10)
business days after such permit is sent by the City to the
transporter'');
--Name and address of the point(s) of origin and destination; and
--The proposed route through the City for each delivery or pickup.
Section 394.08(f) provides that the permit ``shall set forth conditions
such as routes and other special procedures as determined to be
necessary by the Fire Chief.'' Hazardous materials may not be
transported ``in the Downtown Area'' of the City between 7 a.m. and 6
p.m. except Saturdays and Sundays (Sec. 394.06(b)), but the Fire Chief
may grant an exception on a showing that ``delivery or pickup of the
hazardous material * * * can be practicably made only during [the
prohibited] time period'' and transportation of this material is in
``the public interest.'' Sec. 394.08(f). Hazardous materials also may
not be transported on City streets (other than interstate highways)
Where there is neither a point of origin nor destination
(delivery point) within the City, except where the point of origin
or destination (delivery point) is within one mile of the Cleveland
City limits, and except where the use of City streets provides the
safest and most direct route and the shortest distance of travel
from an interstate highway to the point of origin or destination, as
determined by the Fire Chief or his designee.
Sec. 394.06(a); see also Sec. 394.06(d).
AWHMT specifically challenges requirements in Chapter 394 for a
permit, permit fees, proof of insurance, and routing and time
restrictions.
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.
[[Page 49806]]
These two paragraphs set forth the ``dual compliance'' and ``obstacle''
criteria which RSPA had applied in issuing inconsistency rulings prior
to 1990, under the original preemption provision 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 material
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.
To be ``substantively the same,'' the non-Federal requirement must
``conform[] in every significant respect to the Federal requirement.
Editorial and other similar de minimis changes are permitted.'' 49 CFR
107.202(d).
Subsection (c)(1) of 49 U.S.C. 5125 provides that, beginning two
years after FHWA prescribes regulations on standards to be applied by
States and Indian tribes in establishing requirements on highway
routing of hazardous materials, under 49 U.S.C. 5112(b),
A State or Indian tribe may establish, maintain, or enforce a
highway routing designation over which hazardous material may or may
not be transported by motor vehicles, or a limitation or requirement
related to highway routing, only if the designation, limitation, or
requirement complies with section 5112(b).\2\
\2\ FHWA's standards and procedures for State and Indian tribe
requirements for highway routing of hazardous materials were issued
on September 24, 1992 (57 FR 44129-44131, radioactive materials),
and October 12, 1994 (59 FR 51824, 51830, non-radioactive
materials), and are contained in 49 CFR Part 397, subparts C and D.
Highway routing requirements applicable to non-radioactive hazardous
materials that were established before the effective date of FHWA's
regulations (November 14, 1994) may be subject to Federal preemption
under the ``dual compliance'' and ``obstacle'' criteria codified in
49 U.S.C. 5125(a)(1) and (a)(2). See 59 FR 51824, 51826, 49 CFR
397.69(c).
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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 material, including enforcement and planning, developing,
and maintaining a capability for emergency response.
These preemption provisions in 49 U.S.C. 5125 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). 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 original 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 issues to
RSPA. 49 CFR 1.48(u)(2), 1.53(b). Because AWHMT's application concerns
both highway routing issues and non-highway routing issues, FHWA's
Administrator will address highway routing issues, and RSPA's Associate
Administrator for Hazardous Materials Safety will address non-highway
routing issues. 49 CFR 107.209(a), 397.211(a).
Section 5125(d)(1) requires that notice of an application for a
preemption determination must be published in the Federal Register.
Following the receipt and consideration of written comments, FHWA and
RSPA will publish their determination in the Federal Register. See 49
C.F.R. 107.209(d), 397.211(d). A short period of time is allowed for
filing of petitions for reconsideration. 49 C.F.R. 107.211, 397.223.
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 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
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 F.2d at 1581 n.10.
In making preemption determinations under 49 U.S.C. 5125(d), FHWA
and RSPA are 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 FHWA and RSPA have implemented through their
regulations.
[[Page 49807]]
III. Public Comments
All comments should be limited to the issue whether 49 U.S.C. 5125
preempts the City's requirements challenged by AWHMT. Comments should:
(A) Set forth in detail the manner in which the City's explosives
and hazardous materials permit and related requirements are applied and
enforced, including but not limited to:
(1) The modes of transportation that are subject to requirements in
Chapters 387 and 394 of the City Code, and the modes of transportation
to which AWHMT's application applies;
(2) The City's requirements that applicants for an explosives or
hazardous materials permit provide vehicle-specific information, and
the applicability of the City's permit and related requirements to
specific vehicles (as opposed to the transporter);
(3) The City's interpretation and application of the exception in
Sec. 387.03 and the conditions (if any) under which transporters of
explosives that comply with the HMR are subject to requirements in
Chapter 387;
(4) Specific examples of the effect of the City's requirements on
the transportation of explosives and hazardous materials within the
City, such as changes in route or other delays experience by a loaded
vehicle in order to comply with the City's requirements;
(5) The City's requirement to provide information on the Permit
Application for the Transportation of Hazardous Materials with regard
to Class 1 materials and the conditions (if any) under which a
transporter is required to obtain permits (and pay permit fees) under
both Chapters 387 and 394 of the City Code;
(6) The City's requirement to provide information on the Permit
Application for the Transportation of Hazardous Materials with regard
to Class 9 materials and the conditions (if any) under which a
transporter of Class 9 materials excepted from the HMR's placarding
requirements by 49 CFR 504(f)(9) is required to obtain a hazardous
materials permit;
(7) The total amount of less collected by the City in calendar year
1997 for explosives and hazardous materials permits and all purchases
for which those fees were used (including an identification of the
specific accounts into which those fees were deposited);
(B) Explain the extent to which the City consulted or coordinated
with surrounding jurisdictions with respect to its prohibitions on the
use of City streets (other than interstate highways) for the
transportation of explosives or hazardous materials through the City;
and
(C) Specifically address the preemption criteria set forth in Part
II, above.
Persons intending to comment should review the standards and
procedures governing consideration of applications for preemption
determinations, set forth at 49 CFR 107.201-107.211, and 397.201-
397.211.
Issued in Washington, DC on September 9, 1998.
Kenneth R. Wykle,
Administrator, Federal Highway Administration.
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 City of Cleveland, Ohio on Persons
Involved in Transporting Certain Hazardous Materials to or From
Points in the City Are Preempted by The Hazardous Materials
Transportation Act
March 2, 1998.
Application of the Association of Waste Hazardous Materials
Transporters to initiate a proceeding to determine whether various
requirements imposed by the City of Cleveland, Ohio on persons involved
in the transportation of certain hazardous materials to or from points
in the City are preempted by the Hazardous Materials Transportation
Act.
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 City of
Cleveland, OH (City). 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 City
unless certain requirements of the City Hazardous Materials Ordinance
(HazMat Ordinance) and/or Explosives Ordinance (Explosives Ordinance)
\1\ are met. The AWHMT asserts that the City requirements are in
contravention to the Hazardous Materials Transportation Act (HMTA).
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\1\ Ordinance 866-92, enacted on April 27, 1992; Ordinance 84-
70, enacted March 1, 1971.
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Background
When the City began enforcing its HazMat Ordinance, the hazardous
materials transportation industry submitted written comments to the
City.\2\ The substance of the comments pointed out how the proposed
requirements were inconsistent with federal requirements and urged the
City to conform the proposed requirements to federal standards. The
AWHMT has only recently been advised of the City's Explosives Ordinance
by a member company compelled to comply with its requirements.
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\2\ Letter to Michael R. White, Mayor, City of Cleveland, from
Cynthia Hilton, Chemical Waste Transportation Institute, February 4,
1993; letter to William Grubber, Director of Law, City of Cleveland,
from Lynda S. Mounts, American Trucking Associations, March 11,
1993.
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The City's hazmat ordinance imposes routing bans and restrictions,
permits, insurance filings, and fees on motor carriers transporters of
``hazardous materials required to be placarded'' \3\ pursuant to the
federal hazardous materials regulations (HMRs) when the vehicles
operated by such transporters are used on ``City streets (other than
interstate highways).'' \4\ Where the HMRs and the City requirements
conflict, the Ordinance provides that ``the stricter standard for the
promotion and protection of the safety and welfare of the public shall
prevail.'' \5\ Any violation of these requirements is ``a misdemeanor
of the first degree. Each violation [is counted] separately [and] each
day of the violation constitutes a separate offense.'' \6\
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\3\ Codified Ordinances of Cleveland, OH (hereinafter ``Code''),
Sec. 394.05.
\4\ Code Sec. 394.06.
\5\ Code Sec. 394.03(b).
\6\ Code Sec. 394.99.
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The City's Explosives ordinance requires that ``no person shall * *
* transport * * * any Class A, Class B, or Class C explosives'' \7\
without first obtaining a permit, remitting a fee, and having the
vehicles used in the transportation of such explosives ``inspected and
approved.'' \8\ In addition, the Explosives Ordinance also imposes
routing and financial responsibility requirements.\9\ Violation of
these requirements can lead to the seizure and confiscation of the
cargo, as
[[Page 49808]]
well as to fines, not to exceed $200, and/or penalties including
imprisonment not to exceed six months.\10\ The Explosives ordinance
states that it does not ``apply to explosives while in course of
transportation via railroad * * * or highway when the explosives are
moving under the jurisdiction of and in conformity with regulations
adopted by the Interstate Commerce Commission * * *'' \11\ The fact
that the ICC was abolished in 1995 has no bearing on this exclusion
inasmuch as the City has interpreted the ICC exception to apply to
vehicles that do not leave the ``interstate.'' \12\ Even if the City
subsequently give another interpretation of this exception, it must be
remembered that: (1) Not all motor carriers were subject to ICC
jurisdiction, and (2) even if a motor carrier was excepted from the
Explosives Ordinance, nothing in the HazMat Ordinance suggests that
such an exception would carry over to the HazMat Ordinance.
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\7\ Code Sec. 387.03.
\8\ Code Sec. 387.08.
\9\ Code Sec. 387.07(d) & .09.
\10\ Code Sec. 387.15 & .99.
\11\ Code Sec. 387.03.
\12\ See attached affidavits.
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City Requirements for Which a Determination Is Sought
This application seeks preemption of the following City
requirements.\13\
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\13\ Attached to this compliant are affidavits that attest to
the issues we have submitted for review.
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Code Sec. 394.16 & 387.04(b) concerning fees.
Code Sec. 394.06, .08(f) & Sec. 387.07, concerning
shipments routing and prenotification.
Code Sec. 394.08 & Sec. 387.09 concerning proof of
insurance.
Code Sec. 387.08(a) concerning vehicle inspections.
Code Sec. 387.08(a)(6) concerning fire extinguishers.
Explosives Permit Application concerning requirement for
police escort.
Code Sec. 394.08 & 387.02(g), .04, and .07, concerning
annual permits.
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.'' \14\ By vesting primary authority over the
transportation of hazardous materials in 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.'' \15\ 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,'' \16\
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],'' \17\
This preemption provision was implemented through an administrative
process where DOT would issue ``inconsistency rulings'' as to,
\14\ P.L. 93-633 Sec. 102.
\15\ S.Rep. 1192, 93rd Cong., 2d Sess., 1974, page 2.
\16\ S.Rep. 1192, 93rd Cong., 2d Sess., 1974, page 37.
\17\ 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 or political
subdivision requirement is an obstacle to the accomplishment and
execution of the Act and the regulations issued under the Act.\18\
\18\ 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).'' \19\
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\19\ 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.\20\ 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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\20\ 49 U.S.C. 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.\21\
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\21\ 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.'' \22\ Second, non-
federal highway routing requirements that fail to satisfy the federal
standard under 49 U.S.C. 5112(b) are preempted.\23\ Third, non-federal
registration and permitting forms and procedures that are not ``the
same'' as federal regulations to be issued are preempted.\24\ Fourth,
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.'' \25\ 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.\26\
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\22\ 49 CFR 107.202(d).
\23\ 49 U.S.C. 5125(c).
\24\ 49 U.S.C. 5119(c)(2).
\25\ 49 U.S.C. 5125(g).
\26\ Colo. Pub. Util. Comm'n v. Harmon, 951 F. 2d, 1571, 1581 n.
10, (10th Cir. 1991).
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The 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.'' \27\ Transportation''
is defined as ``the movement of property and loading, unloading, or
storage incidental to the movement.'' \28\
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\27\ 49 U.S.C. 5103(b).
\28\ 49. U.S.C. 5102(12).
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Our review of federal law and the Ordinance lead us to believe that
the following specific Ordinance requirements, absent further
modification and/or clarification, are subject to preemption pursuant
to 49 U.S.C. 5125(a)(2) and (b).
The Fees Imposed by the Ordinance Are Not ``Fair'' and Subject to
Preemption Under the Obstacle Test
Code Sec. 394.16 authorizes the assessment of annual fees in the
amount of $50 per hazard class identified on the HazMat permit
application or $25 per
[[Page 49809]]
temporary HazMat permit. Because of the restrictions accompanying the
temporary permit--60-day limitation; issuance of only one temporary
permit per carrier in any given year--we believe the majority of motor
carriers will be compelled to obtained the annual permit. Additionally,
motor carriers transporting Class 1 materials are required to pay $50
for the annual explosives permit required by Code Sec. 387.04.\29\
Consequently, motor carriers that transport materials that fall within
all of the federal hazard classes are subject to an aggregate annual
permit charge of $450.\30\
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\29\ Code Sec. 387.04 does not set a fee amount for the
Explosives permit, but provides that the permit ``shall be * * * in
such form and detail as the Chief prescribes.'' The Application form
for the Explosives permit requires a filing fee of $50.00.
\30\ Although domestic movements of Class 9 materials do not
require placarding, the HazMat permit application requires
disclosure about the transport of Class 9 shipments, and the City
still insists on a $50 fee to move these materials on City streets.
Should the City reverse itself on the Class 9 fee, motor carriers
would still be liable for up to $400 in annual permit fees.
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The City's fee is set at a flat rate and unapportioned to each
motor carrier's presence in the City. 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.\31\ 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.\32\ 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.\33\ In a number of subsequent cases, courts
have relied on these arguments to strike down, enjoin, or escrow flat
hazardous materials taxes and fees.\34\ The City's decision to impose
its suspect fee on a per hazard class basis rather than a per vehicle
basis does not save it from review under these constitutionally-derived
tests. In fact, a per hazard class fee is not unique. Most recently,
the State of Wisconsin imposed fees based on transportation activities
that can be linked to placard requirements. The court that considered
the Wisconsin hazmat transportation fee found that this fee scheme also
violated the Commerce Clause.\35\ 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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\31\ American Trucking Assn's v. Scheiner, 483 U.S. 266 (1987).
\32\ Ibid., 294-86.
\33\ Ibid., 290-291 (citing Commonwealth Edison Co. v. Montana,
453 U.S. 609, 629 (1981).
\34\ 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).
\35\ American Trucking Assn's Inc. v. State of Wisconsin, No.
95-1714, 1996 WL 595806 (Wisc. App. Ct., October 1996).
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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. If the City'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.'' \36\
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\36\ 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.'' \37\
(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.\38\ 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.'' \39\ 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.'' \40\ 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.'' \41\ 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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\37\ 49 U.S.C. 5125(g)(1).
\38\ 49 U.S.C. 5125(g)(2).
\39\ Cong. Record, August 11, 1994, page 11324.
\40\ Ibid.
\41\ Northwest Airlines v. City 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 engaged in the
transportation of placarded types of quantities of hazardous materials
on City roads. 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 204
hazardous materials incidents were reported.\42\ Forty-seven percent of
these incidents resulted from shipments traveling through the City.
Twenty of the incidents were in the air mode, seventeen were in the
rail mode. Of the 204 incidents only 3 met DOT's definition of
``serious.''\43\ All of the serious incidents occurred in the rail
mode. While we are not suggesting that the City impose flat,
inapprotioned fees on other transportation modes, the City clearly has
unfairly burdened select motor carriers with fees and requirements that
are unsupported by the risk presented to the citizen and/or environment
of the City.
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\42\ Hazardous Materials Information System, U.S. Department of
Transportation--1992-1996, January 28, 1998.
\43\ ``Serious'' incidents are those that result in one or more
of the following: death; accident/derailment of vehicle; evacuation
of six or more individuals; injury requiring hospitalization; or
road closure.
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For the above listed reasons, we assert that flat fees are
inherently ``unfair'' and that the City's fee scheme should fall to the
obstacle test pursuant to 49 U.S.C. 5125(a)(2).
The Shipment Routing and Prenotification Requirements Are Subject to
Preemption Under the Obstacle Test
Code Sec. 394.06, .08(f) and Sec. 387.07 impose limits on the
transportation of hazardous materials. As a condition of obtaining a
Code Sec. 394.08 HazMat
[[Page 49810]]
permit, motor carriers are required to list, in advance, each route for
each delivery and pickup, all types and quantities of hazardous
materials to be hauled during the ensuing year.\44\ Code Sec. 394.06
prohibits the use of City streets (other than interstate highways) for
transportation of placarded hazardous materials other than from a point
of origin or to a point of destination. Transportation of placarded
materials is also prohibited on all City streets in the ``Downtown
Area'' between 7:00 am and 6:00 pm on weekdays.\45\ The Code
Sec. 387.07 Explosives permit, likewise, prohibits the transportation
of explosives through the City ``where an alternate route lying wholly
without such corporate limits may be available and will not place an
`unreasonable' burden on such transportation.''\46\ Additionally,
routes to be taken in the City for the transportation of explosives
``shall be designated by the Director of Public Safety * * *.''\47\ The
Explosives permit application requires that the Fire Prevention Bureau
``be notified 24 hours in advance of all deliveries.''\48\
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\44\ See attached HazMat Permit Application.
\45\ Code Sec. 394.08(e) allows the Fire Chief to grant permits
to operate in exception to Sec. 304.06 only if, in the judgment of
the Fire Chief, (1) need is shown that the delivery can only occur
during restricted hours; and (2) that the transportation is in the
``public interest.''
\46\ Code Sec. 387.07(b). ``Unreasonable'' is not defined.
\47\ Code Sec. 387.07(d).
\48\ Explosives Application, Note 3.
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The HazMat and Explosives Ordinances' routing requirements include
the requirement to use interstate highways, time-of-day and day-of-week
travel restrictions, and the requirement to avoid the City altogether
if alternative routing is available. The time-of-day and day-of-week
restrictions compel transporters to deliver non-Cleveland bound, non-
hazardous material elsewhere first, keeping hazardous materials on the
road longer or to wait outside the City until the time restriction is
lifted thus increasing the risk to adjoining communities. The outright
ban on explosives transportation through the City when in the judgment
of the Fire Chief an alternative route exists likewise would have the
same otherwise effect on surrounding communities. These restrictions
also do not contemplate the disruption to Cleveland-area businesses
awaiting delivery of non-hazardous materials if these products are
loaded on a vehicle with cargo requiring a placard--a common practice
among so-called ``less-than-truckload'' carriers. There is no evidence
in either Ordinance that the City consulted with adjoining affected
jurisdictions that may be adversely impacted by hazardous materials
traffic bound to or from the City which is delayed in those
jurisdictions as a result of the routing requirements of the
Ordinances. Generally, DOT has found inconsistent and preempted such
requirements.\49\ More importantly, as a consequence of amendments to
the HMTA in 1990, Congress provided a process to establish standards
for the routing of hazardous materials. States, not localities, are
charged to ensure compliance with the standards in their respective
jurisdictions.\50\
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\49\ Inconsistency Ruling (IR)-1, 43 FR 16954 (April 20, 1978);
IR-2, 44 FR 75566 (December 20, 1979); IR-3, 46 FR 18918 (March 26,
1981); IR-10, 49 FR 46645 (November 27, 1984); IR-11, 49 FR 46647
(November 27, 1984); IR-14, 49 FR 46656 (November 27, 1984); IR-16,
49 FR 20872 (May 20, 1985); IR-20, 52 FR 24396 (June 30, 1987); IR-
23; 53 FR 5538 (February 24, 1988); and IR-32, 55 FR 36736
(September 6, 1990).
\50\ P.L. 101-615, Section 4(b).
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The City's 24-hour advance notice of explosives shipments obviously
is understood to be a shipment prenotification requirement. Perhaps not
as blatant, the City's requirements to file routes as well as the
City's requirements to disclose types and quantities of hazardous
materials to be moved in the City also qualify as a form of shipment
prenotification. These requirements cannot be accomplished, as the City
suggests, on an annual basis. Compliance requires a shipment-by-
shipment prior notice. Motor carriers, for example, hold themselves out
continuously to the shipping public to haul whatever commodity may be
tendered to them at any given time. These carriers frequently do not,
and cannot know, even one day in advance either their routings or their
cargo. Even the City's temporary permit is not a remedy because a
carrier may avail itself of a temporary permit only one time in a
calendar year.\51\ Consequently, the Ordinances force motor carriers,
for all but routine scheduled pick-ups and deliveries, to wait on roads
outside the City while attempting to obtain approval of each route
before entering the City. DOT has determined that prenotification is a
field totally occupied by the HMRs and that local requirements for
advance notice of hazardous materials transportation that have the
potential to delay traffic are inconsistent and preempted.\52\
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\51\ Code Sec. 394.08(b).
\52\ IR-8(A), 52 FR 13000 (April 20, 1987); and IR-6, 48 FR 760
(January 6, 1983). Colo. Pub. Util. Comm'n v. Harmon, 951 F.2d 1571
(10th Cir. 1991).
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Indemnification and Insurance Filing Requirements Violate Federal Law
and Are Preempted Under the Obstacle Test
Code Sec. 394.08 provides that proof of insurance or self-insurance
must be provided with the motor carrier's application for a HazMat
permit. Likewise, an ``exact copy'' of a carrier's insurance policy
must be ``deposited with the City before the issuance of the
[Explosives] permit.'' \53\ In addition, the Explosives Ordinance
requires the insurer to give the City ten days notice in writing before
the cancellation of any policy.\54\
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\53\ Code Sec. 387.09(a).
\54\ Code Sec. 387.09(c).
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Not only do the Ordinances not provide for evidence of surety
bonds, if this is the method chosen by the motor carrier to satisfy
federal responsibility requirements,\55\ but it flies in the face of
Congressional enactments that have prohibited since January 1, 1994
state ability to require proof of insurance from instate motor carriers
unless the state participates in the SSRS (Single State Registration
System) program, and then filings can only be required in the carrier's
base state.\56\ Federal rules also provide that, in the event of a
cancellation or change of policy holder, a carrier--not the carrier's
insurance agent--must ``supplement its filings as necessary to ensure
that current information is on file.'' \57\ Finally, ``[t]o the extent
any State registration requirement imposes obligations in excess of
these specific [under Federal law] the requirement is an unreasonable
burden on [interstate] transportation.'' \58\ If Congress so limited
the ability of the various states to obtain this information, it stands
to reason that Congress likewise intended to bar the over 30,000 local
jurisdictions in the County from imposing similar multiple proof-of-
insurance requirements.
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\55\ 49 CFR 387.
\56\ 49 U.S.C. 14504(b).
\57\ 49 CFR 1023.4(C)(2).
\58\ 49 CFR 1023.4(h).
---------------------------------------------------------------------------
While comparable insurance requirements are not currently found in
the HMRs, it must be remembered that the City's financial
responsibility requirements apply only to motor carriers transporting
hazardous materials. The HMTA does authorize DOT to issue permits for
the transportation of hazardous materials only to motor carriers that,
among other things, ``comply with applicable United States motor
carrier safety laws and regulations and applicable minimum financial
responsibility laws and regulations.'' \59\ DOT's ``obstacle test''
[[Page 49811]]
preemption authority provides that non-federal requirements are
preempted if ``the requirement of the . . . political subdivision * * *
as applied or enforced, is an obstacle to accomplishing and carrying
out this chapter or a regulation prescribed under this chapter.''
(Emphasis added.) In short, a specific HMR does not have to be the
basis from which a determination of obstacle preemption is made.\60\
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\59\ 49 U.S.C. 5109(a)(3).
\60\ Surely Congress meant the Secretary to consider the entire
regulatory scheme required of a motor carrier in determining what
rules were necessary to ensure the safe transportation of hazardous
materials. We could have just as easily cited to the Secretary's
silence in terms of a regulatory standard in the HMRs as an
affirmative determination that some type of requirement was not
necessary to the safe transportation of hazardous material. We
believe it is appropriate and necessary that RSPA consider the rules
of other federal agencies or departments within DOT and the meaning
of regulatory silence within the HMRs in determining matters of
hazardous materials preemption particularly when the challenged non-
federal requirements are applicable only to persons who transport or
offer for transport hazardous materials. Without such a view, any
number of non-federal conditions in areas such as planning,
emergency response, or vehicle accouterments could be envisioned
which would just as effectively frustrate the transportation of
hazardous materials in interstate, intrastate, or foreign commerce
as non-federal rules concerning shipping papers, packaging
standards, or other more traditional forms of hazardous materials
regulations. We believe that any non-federal requirement that
pertains only to the transportation of hazardous materials is within
RSPA's purview to consider under the preemptive authority of the
HMTA.
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The DOT has found that non-federal hazardous materials
transportation indemnification, bonding, or insurance requirements
differing from Federal requirements are inconsistent and preempted.\61\
This view has been supported by the courts.\62\
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\61\ IR-10, 49 FR 46645 (November 27, 1984); IR-25, 54 FR 16308
(April 21, 1989); and IR-31, 55 FR 25571 (June 21, 1990).
\62\ Colorado Pub. Utilities Comm'n v. Harmon, 951 F.2d (10th
Cir. 1991).
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Ordinance Requirement for Vehicle Inspections is Subject to Review
Under the Obstacle Test
Code Sec. 387.08(a) requires that ``[v]ehicles used in the
transportation of explosives shall be inspected and approved by the
Fire Chief or his duly authorized representative before a permit for
such transportation may be issued.'' As a permit condition, the
inspection is valid for a year. DOT has preempted vehicle inspection
requirements in the past because the inspections could not be
accomplished with ``unnecessary delay'' within the meaning of 49 CFR
177.853(a) and consequently the challenged requirements failed the
obstacle test of the HMTA.\63\
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\63\ Preemption Determination 4(R) 58 FR 48933 (September 20,
1993), affirmed on reconsideration 60 FR 8800 (February 15, 1995).
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While we have no current evidence that the City is enforcing its
vehicle inspection requirement, as such may not be able to satisfy the
obstacle test condition ``as applied or enforced,'' we maintain that
the requirement should not be allowed to stand. On its face, the
requirement contains the elements that, if enforced, would be
impossible to satisfy without ``unnecessary delay.'' Moreover, DOT
should consider additional facts that would reasonably cause a carrier
to (1) decide not to pursue obtaining an Explosives permit because of
the disruption to business operations of the inspection requirement,
thus causing the carrier to avoid the City when the possibility exists
that the carrier would, for whatever reason, exist an interstate
highway and shifting the potential risk of such transportation to other
jurisdictions; or (2) leave carriers with permits in a perpetual state
of uncertainty and confusion about their compliance status with the
Code. These facts include the fact that the requirement exists in the
Code, that the Code with the vehicle inspection requirement is
distributed to persons requesting information from the City about its
requirements to transport explosives in the City, and that the City
provides no explanation that enforcement of the requirement has been
withheld (if it has).
Ordinance Requirement for Multiple Fire Extinguishers is Subject to
Review Under Substantively-the-Same-As and/or the Obstacle Test
Code Sec. 387.08(a)(6) requires that all vehicles operating under a
Explosives permit in the City ``be equipped with at least two fire
extinguishers * * * inspected and approved by the [Fire] Chief, or his
duly authorized representative upon the issuance of the permit.'' The
federal motor carrier safety regulations (FMCSRs) provide that vehicles
used to transport hazardous materials be equipped with one fire
extinguisher.\64\
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\64\ 49 CFR 393.95.
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Under a ``substantively-the-same-as test'' review, we would argue
that the City's requirement for two fire extinguishers in nothing more
than a requirement that substantively differs from the HMRs to qualify
a ``container,'' in this case a motor vehicle, to transport packages of
hazardous materials that are otherwise in compliance with the HMRs.\65\
RSPA has ``established * * * the principle that the HMR provisions
concerning hazardous materials transportation * * * accessories; * * *
have fully occupied that regulatory field [and that] those subjects are
the exclusive province of the Federal Government.''\66\
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\65\ 49 U.S.C. 5125(b)(1)(E).
\66\ IR-22, 52 FR 46574, 46582 (December 8, 1987).
---------------------------------------------------------------------------
If an ``obstacle test'' review is used, we argue that the Code does
not provide any justification to support its view that the federal
standard is inadequate. If it is permissible for the City to require
multiple fire extinguishers that are deemed ``adequate'' only at the
discretion of the Fire Chief, then it is permissible for other
jurisdictions to do the same. For an interstate carrier of hazardous
materials, such diverse requirements cannot be tolerated particularly
when they are non-reciprocal--neither recognizing comparable federal
standards, nor even other non-federal standards if they exist. We
believe this requirement poses an unnecessary and unreasonable burden
on motor carriers of hazardous materials that operate in multiple
jurisdictions and that the requirement should be preempted pursuant to
49 U.S.C. 5125(a)(2).\67\
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\67\ The AWHMT cites standards of the FMCSRs as examples of
federal rules to which the City requirement might be compared. We
realize that these requirements are not de facto repeated in the
HMRs. However, they are certainly given de jure meaning pursuant to
49 CFR 177.804. Again, we believe it is approriate and necessary
that RSPA consider the rules of other federal agencies or
departments within DOT and the meaning of regulatory silence within
the HMRs in determining matters of hazardous materials preemption
particularly when the challenged non-federal requirements are
applicable only to persons who transport or offer for transport
hazardous materials. We believe that any non-federal requirement
that pertains only to the transportation of hazardous materials is
within RSPA's purview to consider under the preemptive authority of
the HMTA. As noted above, non-federal requirements are preempted if
under the ``obstacle test'' if the non-federal requirement is an
obstacle to accomplishing and carrying out federal hazmat law. With
regard to the FMCSRs, federal law provides, as a condition of
obtaining a federal permit to transport hazardous materials by
highway, that a motor carrier ``comply with applicable United States
motor carrier safety laws and regulations * * * .'' [49 U.S.C.
5109(a)(3).] In other words, a specific HMR does not have to be the
basis from which a determination of preemption is made. This view is
consistent with the findings of the HMTA which states, in part, that
non-federal requirements ``which vary from Federal laws and
regulations pertaining to the transportation of hazardous materials
* * * creat[e] the potential for reasonable hazards in other
jurisdictions and confound[] shippers and carriers which attempt to
comply [and]that the movement of hazardous materials * * * shall be
conducted in a safe and efficient manner.'' (Emphasis added). [Pub.
L. 101-615 Sec. (2)(3).]
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[[Page 49812]]
Application Requirement for Vehicle Escort is Subject To Review Under
the Obstacle Test
While we find no specific authority for the requirement in the
City's Explosives Ordinance, the application for the Explosives permit
requires a ``police escort * * * if more than 250 pounds are
transported.''\68\ The transportation of hazardous materials is a
highly regulated enterprise. DOT has established extensive requirements
for such transportation, including requirements for vehicle escort if
the vehicle carriers certain RAM shipments.\69\ The fact that the HMR
requires escort vehicles only for RAM shipments shows RSPA's intent not
to require them for transport of other hazardous materials. The courts
have held that non-federal requirements for escort vehicles are
preempted under the obstacle test because such requirements interfere
with Federal uniformity in an unsafe and burdensome manner.\70\
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\68\ Explosives Permit Application, Note 3.
\69\ 49 CFR 173.457(b)(2).
\70\ Chlorine Institute, Inc. v. Calif. Hwy. Patrol, Civ. S-92-
396 (E.D. Cal., September 16, 1992), aff'd, 29 F.3d 495 (9th Cir.
1994).
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Permit Requirements at Odds With Federal Requirements Have the
Potential To Delay Transportation and Are Preempted Under The Obstacle
Test
Code Sec. 394.08 and Sec. 387.02(g), .04 and .07 provide authority
for the City to issue annual permits for the transportation of
hazardous materials and explosives on City streets. Copy(ies) of the
Permit(s) must be carried on each subject vehicle. As discussed above,
both permits require that consignee(s)/Consignor(s) be listed, that
insurance information be filed, that routes be declared for approval,
and that the types and quantities of hazardous materials to be
transported be disclosed. Additionally, the HazMat permit requires that
`'emergency contact numbers'' be provided and that clean-up contractor
identified. The Explosive permit requires, as discussed above, the
additional fire extinguisher, the police escort, and the
prenotification of all deliveries.
During the 1990 reauthorization of the HMTA, Congress found that
``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 . . . permitting
. . . requirements.'' To address this problem, Congress specifically
authorized the federal government to issue permits to motor carriers
transporting hazardous materials, and allowed states to issue such
permits if the permits, based on a federal rule, were uniform and
reciprocal.\71\ Congress could have but did not affirm a role for
localities in this regulatory field. Congress surely could not have
intended to grant localities--over 30,000 localities nationwide--
authority it was unwilling, except under limited circumstances, to
grant to the states. The City HazMat and Explosives permits apply to
selected hazardous materials, involve extensive information and
documentation requirements, and contain discretion as to permit
issuance. The courts have found that ``[c]umulatively, these factors
constitute unauthorized prior restraints on shipments of * * *
hazardous materials that are presumptively safe based on their
compliance with Federal regulations.'' \72\ DOT should find these
permits preempted under the obstacle test based on the onerousness and
the sheer impossibility of fully and efficiently complying with the
permits' conditions without causing unnecessary delay in the
transportation of hazardous materials.
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\71\ 49 U.S.C. 5109 & 5119.
\72\ Southern Pac. Transp. Co. v. Public Serv. Comm'n of Nevada,
909 F.2d 352 (9th Cir. 1990).
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Conclusion
The City's HazMat and Explosives Ordinances impose requirements on
the transportation of certain hazardous materials which we believe are
preempted by federal law. The City is enforcing the above suspect
requirements. Despite good-faith efforts to deal directly with the City
on these matters, the City has not responded to our concerns. We can no
longer ignore the determination of the City 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: Sharon Sobol Jordan, Director of Law, City of Cleveland,
City Hall--Rm. 106, 601 Lakeside Ave., Cleveland, OH 44114.
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) City HazMat Ordinance Sec. 394.
(B) City Explosives Ordinance Sec. 398.
(C) HazMat Permit Application.
(D) Explosives Permit Application.
(E) Affidavits of: W. Barry Olsen, Freehold Cartage, Inc., Connie
Buschur, Metropolitan Environmental, Inc., Susan Camara, Roadway
Express, Inc., Karla Simmons, Tri-State Motor Transit Co.
(F) Sample notice of City's current effort to enforce its permit
requirement.
[FR Doc. 98-24913 Filed 9-16-98; 8:45 am]
BILLING CODE 4910-60-M
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