Application by Association of Waste Hazardous Materials Transporters for a Preemption Determination as to Tennessee Hazardous Waste Transporter Fee and Reporting Requirements

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

[Docket No. RSPA-98-3665 (PDA-21 (R))]

Application by Association of Waste Hazardous Materials

Transporters for a Preemption Determination as to Tennessee Hazardous

Waste Transporter Fee and Reporting Requirements

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 of

the State of Tennessee, applicable to transporters of hazardous waste,

for the payment of a remedial action fee and the filing of a written

report of any hazardous waste discharge within the State.

DATES: Comments received on or before May 26, 1998, and rebuttal

comments received on or before July 8, 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. Milton

Hamilton, Jr., Commissioner, Tennessee Department of Environment &

Conservation, 401 Church Street, 21st Floor, L&C Tower, Nashville, TN

37243. 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 Hamilton at the address specified in the Federal

Register.'')

A list and subject matter index of hazardous materials preemption

cases, including all inconsistency rulings and preemption determination

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 the

individual named in ``For Further Information Contact'' below.

FOR FURTHER INFORMATION CONTACT:

Frazer C. Hilder, 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 preempts Tennessee statutory and regulatory

requirements that transporters of hazardous waste pay a remedial action

fee and file written reports of any discharge of hazardous waste within

the State.

According to AWHMT, each person who is issued a hazardous waste

transporter permit under the Tennessee Hazardous Waste Management Act

must pay both a registration fee and a Superfund Remedial Action Fee.

The Superfund Remedial Action Fee is currently set at $650 per year,

under Tennessee Code 68-212-203(a)(6) and Rule 1200-1-13-.03(1)(e) of

the Tennessee Department of Environment & Conservation (DEC). It

appears that a transporter must hold a permit from the Tennessee DEC in

order to transport, within the State, hazardous waste that originates

or terminates in Tennessee. DEC Rule 1200-1-11-.04(2)(a).

AWHMT also states that a transporter of hazardous waste must submit

a written report to DEC of ``each hazardous waste discharge during

transportation that occurs in this state.'' DEC Rule 1200-1-

11-.04(4)(a)(4). The Note to that section states that a copy of DOT

form 5800.1, as required by 49 CFR 171.16, ``shall suffice for this

report provided that it is properly completed and supplemented as

necessary to include all information required by this paragraph.''

AWHMT asserts that Tennessee's Superfund Remedial Action Fee is

preempted because the proceeds are not used exclusively for purposes

related to transporting hazardous material, including enforcement and

planning, developing, and maintaining a capability for emergency

response. AWHMT also contends that this is a ``flat fee'' that is

preempted because it has no relation to the transporter's operations

within the State. AWHMT states that Tennessee's requirement to submit

written reports of any hazardous waste discharge is preempted because

it is not substantively the same as DOT's requirements in 49 CFR

171.16.

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 the individual

named in ``For Further Information Contact'' above.

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

section 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 of 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 prior

to 1990, under the original preemption provision in the Hazardous

Materials Transportation Act (HMTA). Public Law 93-633 112(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

[[Page 17480]]

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 (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.

Public Law 101-615 section 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 provision. 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 RSPA the

authority to make determinations of preemption, except for those

concerning highway routing which have been delegated to FHWA. 40 CFR

1.53(b). Under RSPA's regulations, preemption determinations are issued

by RSPA's Associate Administrator for Hazardous Materials Safety. 49

CFR 107.209(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, RSPA will

publish its determination in the Federal Register. See 49 CFR

107.209(d). A short period of time is allowed for filing of petitions

for reconsideration. 49 CFR 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 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), 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 Comments

All comments should be limited to the issue whether 49 U.S.C. 5125

preempts the Tennessee requirements challenged by AWHMT. Comments

should:

(A) Set forth in detail the manner in which the Tennessee Superfund

Remedial Action Fee and discharge reporting requirements are applied

and enforced, including but not limited to:

(1) The total amount of Superfund Remedial Action Fees collected by

Tennessee for fiscal year 1996-97 and all purposes for which those fees

were used (including an identification of the specific accounts into

which those fees were deposited); and

(2) Whether the information required to be submitted on a written

report of a hazardous waste discharge exceeds the information required

to be reported to RSPA on DOT form 5800.1; and

(B) Specifically address the preemption criteria set forth in Part

II, above.

Persons intending to comment should review RSPA's standards and

procedures governing consideration of applications for preemption

determinations, set forth at 49 CFR 107.201-107.211.

Issued in Washington, DC, on April 2, 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 Certain

Fees and Incident Reporting Requirements Imposed By the State of

Tennessee on Persons Involved in the Transportation of Hazardous

Wastes to or From Locations Within The State are Preempted by the

Hazardous Materials Transportation Act.

March 23, 1998.

Application of the Association of Waste Hazardous Materials

Transporters to initiate a proceeding to determine whether certain

fees and incident reporting requirements imposed by the State of

Tennessee on persons involved in the transportation of

[[Page 17481]]

hazardous wastes to or from locations within the State 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 within

the State of Tennessee (State). Despite full compliance with the

hazardous materials regulations (HMRs), members of the AWHMT are

precluded from transporting manifested shipments of hazardous waste

within the State unless, among other things, certain fees are paid

to the Department of Environment and Conservation (DEC). In

addition, transporters are in violation of DEC requirements and in

jeopardy of losing their permits to transport hazardous waste until

they file written reports following any hazardous waste incident.

The AWHMT asserts that the State requirements are in contravention

to the Hazardous Materials Transportation Act (HMTA).

Background

The Association of Waste Hazardous Materials Transporters

(AWHMT) was invited to provide comment on several bills before the

Tennessee legislature earlier this year. These bills dealt with

reforming permit requirements currently imposed on transporters of

hazardous waste in the State. Part of our review disclosed that the

DEC annually imposes a flat $650 remedial action fee on transporters

of hazardous waste. We presented arguments that suggested the DEC's

fee violates federal law. The DEC has rejected our argument.

Further review of the DEC requirements suggests to us that a

requirement to file written incident reports with the Department

also violates federal law.

Despite the questionable legality of these requirements, the DEC

imposes such stringent penalties for non-compliance that

transporters comply. First, the Code declares it ``unlawful to * * *

refuse or fail to pay to the department fees assessed pursuant to

the provisions of (the Code or to) fail to provide information in

violation of the rules, regulations, or orders of the (DEC).'' \1\

The Code then makes clear that transporters are precluded from

transporting hazardous waste to or from any location in the state

without first obtaining a permit from the DEC.\2\ Failure of a

permit applicant or permittee to pay the required annual remedial

action fee is grounds for denial or revocation of a permit.\3\

Finally, any person who violates or fails to comply with any

provision, term or condition of any permit issued, or any rule,

regulation or standard adopted pursuant to the Code is subject to a

civil penalty of up to $50,000 per day for each day of violation.

Each day upon which such violation occurs constitutes a separate

punishable offense.\4\ As proof that the DEC applies and enforces

its fees, a current permit application package is attached.

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\1\ Tenn. Code 68-212-105(4) & (5).

\2\ Tenn. Code 68-212-108(a)(1).

\3\ Tenn. Code 68-212-110(d).

\4\ Tenn. Code 68-212-114(b)(1).

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State Requirement for Which A Determination is Sought

This application seeks preemption of the following State

requirements:

Tennessee Code (Code) section 68-212-203(a)(6)

concerning remedial action fees

Tennessee DEC Rule (Rule) section 1200-1-13-.03(1)(e)

concerning remedial action fees

Rule section 1200-1-11-.04(4)(a)4 concerning written

incident reports

RCRA does not shield State Hazardous Waste Requirements from

Scrutiny Under The HMTA

The challenged requirements pertain to the transportation of

hazardous waste. Tennessee is authorized by the U.S. Environmental

Protection Agency (EPA) to administer the federal hazardous waste

program. Many states have pointed to such authorization as a defense

against the preemptive authority of the Hazardous Materials

Transportation Act (HMTA). This defense, however, is without merit.

All hazardous wastes are designated ``hazardous substances''

under the Comprehensive Environmental Response, Compensation and

Liability Act (CERCLA).\5\ As such, hazardous wastes are explicitly

required to be ``listed and regulated as * * * hazardous materials

under the Hazardous Materials Transportation Act.'' \6\ The U.S.

Department of Transportation (DOT) defines the term ``hazardous

material'' to include ``hazardous waste.'' \7\ The hazardous

materials regulations (HMR) issued pursuant to the HMTA apply to the

transportation of hazardous wastes by intrastate, interstate, and

foreign carriers.\8\

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\5\ 42 U.S.C. 9601(14)(C).

\6\ 42 U.S.C. 9656(a).

\7\ 49 CFR 171.8, definition of ``hazardous materials.''

\8\ 49 CFR 171.1(a).

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In enacting the Resource Conservation and Recovery Act (RCRA) in

1976, Congress provided that EPA's regulations on transporters of

hazardous waste must be consistent with the requirements of the HMTA

and the HMR.\9\ The deferral to the HMTA and the HMR for the

regulation of hazardous waste in transportation was intended to

avoid duplicative requirements. EPA's concern about such

inefficiency and confusion lead the Agency to state that the HMR are

``capable of being modified under the HMTA to address the

transportation hazards of waste materials and that RCRA affirms the

need for such a modification.'' \10\ When EPA delegates its

authority to issue regulations to a state, as it has in Tennessee,

the state's hazardous waste program must be equivalent to the

federal program and consistent with other state authorized

programs.\11\

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\9\ 42 U.S.C. 6923(b).

\10\ 43 FR 22626 (May 25, 1978).

\11\ 42 U.S.C. 6926.

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EPA has consistently maintained that its approval of a state's

hazardous waste program does not preclude preemption under the

HMTA.\12\ Provisions of RCRA which allow states to impose ``more

stringent'' requirements than those established by EPA,\13\ must be

read consistently with the HMTA.\14\ Thus, while RCRA does not

contain a procedure for prohibiting states from imposing

requirements on the transportation of hazardous waste that are more

stringent or broader in scope that those imposed by EPA, states may

not rely on RCRA to shield such requirements from review under the

HMTA.

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\12\ 57 FR 32726, 32728 (July 23, 1994), and letter to Cynthia

Hilton, Chemical Waste Transportation Institute (CWTI), from

Devereaux Barnes, EPA, October 29, 1992.

\13\ 49 U.S.C. 6929.

\14\ Morton versus Mancari, 417 U.S. 535, 551 (1974).

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The HMTA Provides for the Preemption of Non-Federal Requirements

When Those Non-Federal Requirements Fail Certain Federal Preemption

Tests

The HMTA was enacted in 1975 to give the DOT greater authority

``to protect the Nation adequately against the risks of life and

property which are inherent in the transportation of hazardous

materials in commerce.'' \15\ 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.'' \16\ 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.'' \17\ This preemption provision was implemented

through an administrative process where DOT would issue

``inconsistency rulings'' as to, [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.\18\

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\15\ Pub. L. 93-633 sec. 102.

\16\ S. Rep. 1192, 93rd Cong., 2d Sess., 1974, page 2.

\17\ S. Rep. 1192, 93rd Cong., 2d Sess, 1974, page 37.

\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 conflict

between Federal and State statutes enunciated by the Supreme Court

in Hines versus 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, setting

four other standards under which non-federal requirements could be

subject to preemption

[[Page 17482]]

review. Two of these standards are of significance to this petition:

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\20\ 49 U.S.C. 5125(a).

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First, Congress expressly preempted non-federal

requirements in five covered subject areas if they are not

``substantively the same'' as the federal requirements. Among these

covered subject areas is the written notification, recording, and

reporting of the unintentional release in transportation of

hazardous materials.\21\ ``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\

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\21\ 49 U.S.C. 5125(b)(1)(D).

\22\ 49 CFR 107.202(d).

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Second, 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.''

\23\

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\23\ 49 U.S.C. 5125(g).

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DOT's preemption authority is limited only to the extent that

non-federal requirements are ``otherwise authorized'' by federal

law. As noted above, state requirements affecting transporters of

hazardous waste are not ``authorized by another law of the United

States,'' within the meaning of 49 U.S.C. 5125, simply because they

are contained in an EPA-authorized state hazardous waste

program.\24\

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\24\ Colo. Pub. Util. Comm'n versus Harmon, 951 F.2d, 1571, 1581

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

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Our review of federal law and the Code leads us to believe that

the following specific requirements, absent further modification

and/or clarification, are subject to preemption pursuant to 49

U.S.C. 5125(a)(2) and (b)(1)(D).

The Remedial Action Fee Imposed by the Code and Rule is not

``Fair'' Or ``Used for a Purpose Related to Transporting Hazardous

Material'' and is Subject to Preemption Under the Obstacle Test

Code Sec. 68-212-203(a)(6) and Rule Section 1200-1-13-.03(1)(e)

authorize and impose an annual assessment of $650 on transporters of

manifested hazardous waste shipments moving to or from locations in

the State. The revenue from this fee collection is deposited in the

DEC's ``Hazardous Waste Remedial Action Fund'' (Fund) \25\ Code

Sec. 68-212-205 outlines the uses to which the revenues in the Fund

can be applied.

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\25\ Code section 68-212-204.

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As noted above, the HMTA provides that ``a State * * * may

impose a fee related to transporting hazardous materials only if the

fee is fair and used for a purpose related to transporting hazardous

materials, including enforcement and planning, developing, and

maintaining a capability for emergency response.'' \26\ DOT

considered ``transportation-related fees'' to include fees imposed

``as a condition for authority or permission to transport any

hazardous materials into, through, or within'' a state.\27\ DOT has

affirmed that fees imposed by a State that did not meet the

standards set forth in the law would ``create an obstacle to the

accomplishment and execution of the [HMTA]'', and consequently, be

subject to administrative preemption under the ``obstacle test.''

\28\

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\26\ U.S.C. 5125(g)(1).

\27\ Letter to Robert Shinn, New Jersey Dept. of Environmental

Protection, from Alan I. Roberts, RSPA, May 24, 1995.

\28\ Letter to Cynthia Hilton, CWTI, from Alan I. Roberts, DOT,

October 6, 1993.

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Used For Test

The DEC is in violation of federal law because the revenue

collected from hazardous waste transporters in the Fund is used for

``identifying and investigating inactive hazardous substance sites *

* * and for investigating and reasonably and safely containing,

cleaning up, monitoring and maintaining such sites as provided in

the [Code].'' \29\ The Fund may also be used, in conjunction with

the above purpose, for consultants and personnel, for equipment, or

``other necessary expenses.'' \30\ The Fund may be used to match

federal funds available under CERCLA.\31\ Other authorized uses of

the Fund are to provide technical assistance to generators; to

promote the DEC's waste reduction and pollution prevention programs;

to operate an information clearinghouse for generators; to

coordinate an award program for innovative approaches to reducing

hazardous waste generation; to conduct training sessions and publish

reports targeted to segments of industry concerning hazardous waste

reduction; to prepare an annual report to the State Legislature; to

accept gifts and grants; to provide grants to generators of

hazardous waste; to provide research grants to develop new

technology for the reduction or better treatment of hazardous waste;

and to review waste reduction plans. Despite the exhaustive uses of

the Fund, none address enforcement and emergency response for

transportation of hazardous materials within the meaning of 49

U.S.C. 5125(g)(1). DOT has already preempted non-federal fees based

on the non-federal entity's unauthorized use of a hazmat

transportation-related fee. DOT should not tolerate the continuation

of the Remedial Action fee for the same reason.

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\29\ Code section 68-212-205(a).

\30\ Code section 68-212-205(b).

\31\ Code section 68-212-205(c).

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Fairness Test

The DEC's remedial action fee is set at a flat rate and

unapportioned to each motor carrier's presence in the State. 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.\32\ 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.\33\ 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.\34\ In a number of subsequent cases, courts have

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

hazardous materials taxes and fees.\35\

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\32\ American Trucking Assn's versus Scheiner, 483 U.S. 266

(1987).

\33\ Ibid., 284-86.

\34\ Ibid., 290-291 (citing Commonwealth Edison Co. versus

Montana, 453 U.S. 609, 629 (1981).

\35\ American Trucking Assn's, Inc. versus State of New Jersey,

No. 11562-92 (N.J.T.C., March 11, 1998) (oral opinion declaring

flat, annual $250 per truck hazardous waste transporter fee

unconstitutional under the Commerce Clause), American Trucking

Assn's Inc. versus State of Wisconsin, No. 95-1714, 1996 WL 593806

(Wisc. App. Ct., October 1996) (holding flat, annual per-company

hazardous materials fees to be violative of the Commerce Clause).

American Trucking Assn's Inc. versus Secretary of Administration,

613 N.E.2d 95 (Mass. 1993) (finding unconstitutional annual, flat

per-vehicle hazardous waste fee). American Trucking Assn's Inc.

versus Secretary of State, 595 A.2d 1014 (Me. 1991) (finding

unconstitutional flat per-vehicle hazardous materials fees).

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We submit that the DEC's flat remedial action fee also runs

afoul of the HMTA because it is inherently ``unfair.'' Some motor

carriers, otherwise in compliance with the HMRs, will inevitably be

unable to shoulder multiple flat fees, and thus be excluded from

some sub-set of fee-imposing jurisdictions. If the State'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. versus 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, in addition to the ``used for'' test, the

hazardous materials transportation-related fee ``fairness'' test.

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.37 The then-Chairman of the

Senate Subcommittee to authorize the amendment explained that DOT

was to use this authority to determine if the hazardous materials

fees are ``subject to preemption.'' 38 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.'' 39 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.'' 40 In the absence of any

[[Page 17483]]

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)(2).

\38\ Cong. Record, August 11, 1994, page 11324.

\39\ Ibid.

\40\ Northwest Airlines v. State 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 Code and Rule

impose the challenged flat fee only on transporters engaged in the

transportation of manifested shipments of hazardous waste moving to

or from locations in Tennessee. 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 1819 hazardous materials incidents were reported in

Tennessee of which 102 involved the transportation of hazardous

waste.41 Forty-six percent of the hazardous waste

incidents involved shipments by transporters technically unpermitted

by the State and not subject to the remedial action fee because the

shipments were not destined to or from locations in the State. Of

the 1819 incidents, 42 met DOT's definition of ``serious;'' only one

of the 42 involved the transportation of hazardous

waste.42 The State clearly has unfairly burdened certain

hazardous waste carriers with fees and requirements that are

unsupported by the risk presented to the citizens and/or environment

of the State.

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\41\ Hazardous Materials Information System, U.S. Department of

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

\42\ ``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 State's fee scheme should fall to

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

The Written Notification, Recording, and Reporting of the

Unintentional Release in Transportation of Hazardous Material Is

Reversed to the Federal Government

Rule 1200-1-11.04(4)(a)4 requires written notification of each

hazardous waste discharge during transportation that occurs in the

State. These reports must be filed with the DEC within 15 days. The

written notification must provide information about the incident.

The DEC allows the filing of form F5800.1, the DOT incident report,

to suffice if it is ``properly completed and supplemented as

necessary to include all information required by the (DEC).''

43

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\43\ Rule 1200-1-11.04(4)(a)4. Note.

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It is clear that the DEC's written notification requirements are

not substantively the same as corresponding federal

requirements.44 The HMTA expressly preempts such

requirements.45 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) *

* * .'' 46

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\44\ 49 CFR 171.16.

\45\ 49 U.S.C. 5125(b)(1)(D).

\46\ IR-31, 55 FR 25582 (June 21, 1990).

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Conclusion

The State's hazardous waste remedial action fee requirements

imposed on the transportation of manifested shipments of hazardous

waste are preempted by federal law. The State is enforcing the above

suspect requirements. 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: Milton Hamilton, Jr., Commissioner, Department of

Environment & Conservation, 401 Church St., 21st Floor, L&C Tower,

Nashville, TN 37243.

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) Tenn. Code 68-212 Secs. 101-121

(B) Tenn. Code 68-212 Secs. 203-206

(C) DEC Rule 1200-1-11-.04

(D) DEC Rule 1200-1-11-.08

(E) DEC Rule 1200-1-13

(F) Hazardous Waste Transporter Permit Application

[FR Doc. 98-9212 Filed 4-8-98; 8:45 am]

BILLING CODE 4910-60-M