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

Applicant: Association of Waste Hazardous Materials Transporters

(AWHMT).

Local Laws Affected: Tennessee Code 68-212-203(a)(6); Tennessee

Rules and Regulations 1200-1-11-.04(4)(a)4, 1200-1-13-.03(1)(e).

Modes Affected: Highway and Rail.

SUMMARY: Federal hazardous material transportation law preempts

Tennessee's requirement for hazardous waste transporters to pay a $650

per year remedial action fee because that fee is not fair and it is not

used for purposes related to transporting hazardous material. Federal

hazardous material transportation law also preempts Tennessee's

requirement for a transporter to submit a written report of a discharge

of hazardous waste during transportation because that requirement is

not substantively the same as RSPA's requirement in the Hazardous

Materials Regulations.

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief

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

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

SUPPLEMENTARY INFORMATION:

I. Background

In March 1998, AWHMT applied for a determination that Federal

hazardous material transportation law preempts Tennessee statutory and

regulatory requirements that transporters of hazardous waste pay a

remedial action fee and file written reports of any discharge of

hazardous waste within the State.

Tennessee requires a transporter to hold a permit in order to pick

up or deliver hazardous waste within the State. Tennessee Code 68-212-

108(a)(1); Rule 1200-1-11-.04(2) of the Tennessee Department of

Environment and Conservation (DEC). In addition to the initial

application and annual renewal fees to obtain this permit, which are

not challenged by AWHMT, the transporter must also pay a $650

``remedial action fee'' each year, under Tennessee Code 68-212-

203(a)(6) and DEC Rule 1200-1-13.03(1)(e). (This fee had been set at

$550 for the 1994-95 fiscal year and $600 for the 1995-96 fiscal year.

Id.) The remedial action fees paid by transporters are deposited into a

``special agency account . . . known as the 'hazardous waste remedial

action fund.' '' Tennessee Code 68-212-204(a). The monies in this fund

may be used for a number of purposes, including identifying,

investigating, cleaning up and monitoring ``inactive hazardous

substance sites''; matching funds provided by the United States to

clean up hazardous substance sites; providing on-site technical

assistance to hazardous waste generators; taking additional measures to

reduce the generation of hazardous waste within the State; and

preparing an annual report to the Tennessee Legislature. Tennessee Code

68-212-205.

Tennessee also requires a transporter to submit to DEC, ``[w]ithin

fifteen days of occurrence,'' a written report ``on each hazardous

waste discharge during transportation that occurs in the state.'' DEC

Rule 1200-1-11-.04(4)(a)4. The Note to this section states that a copy

of DOT form F 5800.1, as required by 49 CFR 171.16, ``shall suffice for

this report provided that it is properly completed and supplemented as

necessary to include the information required'' in subsection (a)3 with

respect to immediate notification of any discharge of hazardous waste.

AWHMT contends that Tennessee's remedial action fee is preempted

because the proceeds are not used exclusively for purposes related to

transporting hazardous material, including enforcement and planning,

developing, and maintaining a capability for emergency response. AWHMT

also maintains that this is a ``flat fee'' that is preempted because it

has no relation to the transporter's operations within the State. In

addition, AWHMT argues that Tennessee's requirement to submit written

reports of any hazardous waste discharge is preempted because it is not

substantively the same as DOT's requirements in 49 CFR 171.16.

The text of AWHMT's application was published in the Federal

Register, and interested parties were invited to submit comments. 63 FR

17479 (April 9, 1998), correction, 63 FR 18964 (April 16, 1998).

Comments were submitted by DEC, the Association of American Railroads

(AAR), and the Hazardous Materials Advisory Council (HMAC). Rebuttal

comments were submitted by AWHMT, DEC, and AAR. In its rebuttal

comments, DEC asked RSPA to reopen the comment period to allow

commenters to respond to rebuttal comments. RSPA denied that request

but called DEC's attention to RSPA's procedural regulations providing

that ``Late-filed comments are considered so far as practicable.'' 49

CFR 107.205(c). Accordingly, in the event that a commenter raises a new

issue in rebuttal comments, or there is a change in the facts or law

involved in a preemption application, an interested party may always

bring these matters to RSPA's attention. No late-filed comments were

received.

II. Federal Preemption

The Hazardous Materials Transportation Act (HMTA) was enacted in

1975 to give the Department of Transportation greater authority ``to

protect the Nation adequately against the risks to life and property

which are inherent in the transportation of hazardous materials in

commerce.'' Pub. L. 93-633 Sec. 102, 88 Stat. 2156, presently codified

as revised in 49 U.S.C. 5101. The HMTA ``replace[d] a patchwork of

state and federal laws and regulations * * * with a scheme of uniform,

national regulations.'' Southern Pac. Transp. Co. v. Public Serv.

Comm'n, 909 F.2d 352, 353 (9th Cir. 1980). On July 5, 1994, the HMTA

was among the many Federal laws relating to transportation that were

revised, codified and enacted ``without substantive change'' by Public

Law 103-272, 108 Stat. 745. The Federal hazardous material

transportation law is now found in 49 U.S.C. Chapter 51.

The HMR are currently issued under the direction in 49 U.S.C.

5103(b)(1) that DOT ``shall prescribe regulations for the safe

transportation of hazardous material in intrastate, interstate, and

foreign commerce.'' The term ``hazardous material'' specifically

includes hazardous wastes. 49 CFR 171.8; see also Sec. 171.1(a)(1).

A statutory provision for Federal preemption was central to the

HMTA. In 1974, the Senate Commerce Committee ``endorse[d] the principle

of preemption in order to preclude a multiplicity of State and local

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). More recently, a Federal

Court of Appeals found that uniformity was the ``linchpin'' in the

design of the HMTA, including the 1990 amendments that expanded the

preemption provisions.

[[Page 54475]]

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

1991).

The 1990 amendments to the HMTA codified the ``dual compliance''

and ``obstacle'' criteria that RSPA had applied in issuing

inconsistency rulings before 1990.1 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). As now set forth in 49 U.S.C.

5125(a), these criteria provide that, in the absence of a waiver of

preemption by DOT under 49 U.S.C. 5125(e) or unless it is authorized by

another Federal law, ``a requirement of a State, political subdivision

of a State, or Indian tribe'' is explicitly preempted if

\1\ While advisory in nature, RSPA's inconsistency rulings were

``an alternative to litigation for a determination of the

relationship of Federal and State or local requirements'' and also a

possible ``basis for an application * * * [for] a waiver of

preemption.'' Inconsistency Ruling (IR) No. 2, Rhode Island Rules

and Regulations Governing the Transportation of Liquefied Natural

Gas and Liquefied Propane Gas, etc., 44 FR 75566, 76657 (Dec. 20,

1979).

---------------------------------------------------------------------------

(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.

In the 1990 amendments to the HMTA, Congress also added additional

preemption provisions on certain ``covered subject'' areas and with

regard to fees imposed by a State, political subdivision, or Indian

tribe on the transportation of hazardous material. The covered subject

areas include ``the written notification, recording, and reporting of

the unintentional release in transportation of hazardous material,'' 49

U.S.C. 5125(b)(1)(D); unless it is authorized by another Federal law or

a DOT waiver of preemption, a non-Federal requirement on this subject

matter is preempted when it is not ``substantively the same as a

provision of this chapter or a regulation prescribed under this

chapter.'' 49 U.S.C. 5125(b)(1). RSPA has defined ``substantively the

same'' to mean ``conforms in every significant respect to the Federal

requirement. Editorial and other similar de minimis changes are

permitted.'' 49 CFR 107.202(d).

In addition, 49 U.S.C. 5125(g)(1) provides that a State, political

subdivision, or Indian tribe may

impose a fee related to transporting hazardous material only if the

fee is fair and used for a purpose relating to transporting

hazardous material, including enforcement and planning, developing,

and maintaining a capability for emergency response.

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 to RSPA the authority to make

determinations of preemption, except for those concerning highway

routing (which have been delegated to FHWA). 49 CFR 1.53(b). Under

RSPA's regulations, preemption determinations are issued by RSPA's

Associate Administrator for Hazardous Materials Safety. 49 CFR

107.209(a).

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

preemption determination 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 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 directly address issues of

preemption arising under the Commerce Clause of the Constitution,

except that, as discussed in more detail in Section III.B.2., below,

RSPA considers that Commerce Clause standards are relevant to a

determination whether a fee related to the transportation of hazardous

material is ``fair'' within the meaning of 49 U.S.C. 5125(g)(1).

Preemption determinations also do not address statutes other than the

Federal hazardous material transportation law unless it is necessary to

do so in order to determine whether a requirement is authorized by

another Federal law. A State, local or Indian tribe 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.2 Section 5125 contains express preemption

provisions, which RSPA has implemented through its regulations.

---------------------------------------------------------------------------

\2\ On August 4, 1999, the President signed ``Federalism''

Executive Order No. 13132 which becomes effective on November 2,

1999. Although this replaces Executive Order No. 12612, it continues

the policy that a Federal agency should find preemption ``only where

the [Federal] statute contains an express preemption provision or

there is some other clear evidence that the Congress intended

preemption of State law, or where the exercise of State authority

conflicts with the exercise of Federal authority under the Federal

Statute.'' Sec. 4(a), 54 FR 43255, 43257 (Aug. 10, 1999).

---------------------------------------------------------------------------

III. Discussion

A. Standing

In its initial comments, DEC questioned whether AWHMT ``has

standing to pursue this petition.'' DEC asserted that AWHMT had not set

forth sufficient facts in its application ``to know if the Association

has any members that have standing.'' DEC stated that its remedial

action fee ``does not apply to the universe of hazardous materials * *

* but only to the subset of hazardous waste as defined by the Resource

Conservation and Recovery Act (RCRA),'' 42 U.S.C. 6901 et seq., and

that

the fee only applies to persons who `transport hazardous waste to or

from locations within Tennessee.' TDEC Rule 1200-1-11-.04(2)(b)(1)

in the Applicant's Attachment C. The fee does not apply to a

transporter who passes through the State. [Footnote omitted]

With its rebuttal comments, AWHMT submitted affidavits of two of

its members, Environmental Transport Group, Inc., of Flanders, New

Jersey, and Tri-State Motor Transit Co., Inc., of Joplin, Missouri.

Officials of each of these companies stated that their companies

handled numerous shipments of hazardous waste every year that

originate, terminate or are temporarily stored during the normal course

of transportation in Tennessee. This is sufficient to allow AWHMT to

petition for an administrative determination of preemption on behalf of

its members. As stated in PD-2(R), Illinois Environmental Protection

Agency's Uniform Hazardous Waste Manifest, 58 FR 11176, 11182 (Feb. 23,

1993),

if [an association's] members do not comply with the IEPA Uniform

Hazardous Waste Manifest requirements, they are subject to State

enforcement action and to delays of their shipments. Thus, [the

association's] members are ``directly affected'' by the Uniform

Hazardous Waste Manifest system, and [the association] has standing

to apply for this preemption determination.

[[Page 54476]]

Accord, PD-6(R), Michigan Marking Requirements for Vehicles

Transporting Hazardous and Liquid Industrial Wastes, 59 FR 6186, 6189

(Feb. 9, 1994) (an association has standing to apply for a

determination that Michigan requirements on the transportation of

hazardous waste are preempted when its ``members include those who

transport hazardous waste in or through Michigan by motor vehicle'').

RSPA finds that AWHMT has standing to apply for a determination

that Federal hazardous materials transportation law preempts Tennessee

requirements that apply to AWHMT's members that transport hazardous

waste within Tennessee.

B. Remedial Action Fee

1. The Fee and its Uses

According to DEC, the remedial action fee mandated by Tennessee

Code 68-212-203(a)(6) and DEC Rule 1200-1-13-.03(1)(e) is ``part of the

Tennessee superfund program.'' DEC stated that these fees are paid by

generators of hazardous waste, transporters of hazardous waste, and

facilities that treat or dispose of hazardous waste.3 DEC

indicated that its Division of Superfund collected more than $2.5

million in remedial action fees in 1996, and almost $2.9 million in

1997. In both years, more than 90% of the fees were paid by generators

and treatment and disposal facilities; transporters paid $176,800

(about 7% of the fees collected) in 1996, and $168,700 (about 6%) in

1997.

---------------------------------------------------------------------------

\3\ It appears that the amount of fees paid by generators

depends upon the amount of hazardous waste generated within the

year. DEC Rule 1200-1-13-.03(1)(b). In addition, generators who ship

hazardous waste offsite for treatment of disposal also pay an

additional fee, also based on the amount of hazardous waste shipped.

DEC Rule 1200-1-13-.03(1)(c). Although this additional ``off-site

shipping fee'' may be a ``fee related to transporting hazardous

material,'' 49 U.S.C. 5125(g)(1), no directly affected person has

asked RSPA to determine whether Federal hazardous material

transportation law preempts this separate fee imposed on generators.

---------------------------------------------------------------------------

DEC stated that the remedial action fees paid by generators,

transporters and treatment and disposal facilities are credited to the

Hazardous Waste Remedial Action Fund,4 which is ``distinct

from the state general fund and any unencumbered balance does not

revert to the general fund at the end of any fiscal year.'' DEC also

advised that, besides these fees, the Hazardous Waste Remediation Fund

receives criminal fines and civil penalties for violations of the

Tennessee Hazardous Waste Management Act, and the State appropriates $1

million to this fund each year. See Tennessee Code 68-212-203(d), (e).

---------------------------------------------------------------------------

\4\ Although DEC stated initially that this fund is ``officially

named the Hazardous Waste Remediation Fund,'' it later referred to

the ``Hazardous Waste Remedial Action Fund,'' which is the name

specified in Tennessee Code 68-212-204.

---------------------------------------------------------------------------

DEC stated that ``the primary use [of monies in the fund] is as a

mechanism for the Department to investigate, contain and clean up

`inactive hazardous substance sites' * * * where disposal of hazardous

substance has occurred.'' According to DEC, ``hazardous substance'' has

the same meaning as in the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA), 49 U.S.C. 9601(14), so that

this term includes more than hazardous wastes.

DEC indicated that disposal can include ``[a]ny spilling,

discharge, or leaking such as can occur during an accident during

transportation or during loading and unloading.'' DEC stated that it

``accomplishes these activities through the use of contractors when the

liable parties do not do it themselves.'' It indicated that it has

separate contracts for emergency response, investigation and

engineering, and for remediation. However, according to DEC, ``[t]here

has not been a major spill in a transportation-related incident that we

have had to address with the superfund.'' It mentioned that, in 1996,

it ``used the fund and the emergency response contractor to address

incidents on highways,'' at a total cost of $4,300. DEC also referred

to two train derailments that resulted in the release of significant

amounts of hazardous substances. It stated that, in these latter two

cases, the rail transporter paid the direct costs of response and

clean-up, and DEC incurred oversight costs that totaled slightly more

than $10,000 for both incidents.

In its application, AWHMT challenges Tennessee's remedial action

fee on the grounds that it is not ``fair'' and that it is not being

used for purposes that are related to the transportation of hazardous

material.

2. The Fairness Test

Both AWHMT and DEC have referred to the Commerce Clause as

providing the standards for a determination whether the Tennessee

remedial action fee is ``fair'' within the meaning of 49 U.S.C.

5125(g)(1). AWHMT contends that, because the remedial action fee is set

at a ``flat rate'' for all transporters who pick up or deliver

hazardous wastes within Tennessee, it fails to meet the ``internal

consistency'' test discussed in American Trucking Ass'ns v. Scheiner,

483 U.S. 266, 97 S.Ct. 2829 (1987). AWHMT cited the Scheiner case, 483

U.S. at 290-291, as holding that ``because they are unapportioned, flat

fees cannot be said to be `` `fairly related' to a feepayer's level of

presence or activities in the fee-assessing jurisdiction.'' It cited

four State court decisions in cases also brought by the American

Trucking Associations, Inc. (ATA) that ``strike down, enjoin, or escrow

flat hazardous materials taxes and fees'': Wisconsin, 556 N.W.2d 761

(Wis. Ct. App.), review denied, 560 N.W.2d 274 (1996); Massachusetts,

613 N.E.2d 95 (1993); Maine, 595 A.2d 1014 (1991); and New Jersey, No.

11562-92 (N.J. Tax. Ct., March 11, 1998).5

---------------------------------------------------------------------------

\5\ After remand by the New Jersey Supreme Court, 713 A.2d 497

(1998), the Appellate Division reversed and remanded this case with

directions to the State to apply to DOT for a determination on the

fairness of New Jersey's hazardous waste transporter registration

fee. Docket No. A-6334-97T3F (June 15, 1999). RSPA understands that

the Appellate Division has denied motions for reconsideration of its

June 15, 1999 decision and that both ATA and the State of New Jersey

have appealed this decision to the New Jersey Supreme Court. AWHMT

is affiliated with ATA.

---------------------------------------------------------------------------

AWHMT also asserted that the DEC remedial action fee is inherently

``unfair'' because of the possible cumulative effect if other

jurisdictions charge similar fees:

Some motor carriers, otherwise in compliance with the HMRs, will

inevitably be unable to shoulder multiple flat fees, and thus will

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.''

6

\6\ The quoted language is from Missouri Pac. R.R. v. Railroad

Comm'n of Texas, 671 F. Supp. 466, 480-81 (W.D. Tex.)

---------------------------------------------------------------------------

HMAC also argued that a

flat fee of $650 per year * * * is clearly unfair to interstate

carriers. If such fees were to be enacted by other States or

jurisdictions, it would lead to assessments on interstate carriers

many times the rates paid by local carriers for the same number of

miles. A fee of this magnitude applied by 50 States would result in

a cost to a single carrier of more than $32,000.

DEC has asserted that its remedial action fee is not unreasonably

high because in 1997 transporters paid only about 6% of the total fees

collected. DEC stated that its fee does not differentiate between

interstate and intrastate

[[Page 54477]]

carriers, because both pay the same $650 amount per year. Although not

``conced[ing] that the fee is a flat fee,'' DEC does ``acknowledge that

all of the persons in the small subset of payers who are transporters

of hazardous waste all pay the same amount.'' It contended that the

Scheiner case is not dispositive, regardless of whether the remedial

action fee is considered a ``tax'' or a regulatory ``fee.''

DEC stated that, because this fee is not used to pay the

government's ``general debts and liabilities,'' it is not a tax, but

rather a ``fee'' which is ``charged by the government in connection

with the exercise of its police function to help defray costs of the

government's provision of a specific service.'' This fee, DEC stated,

helps ``defray the State's costs in the establishment and maintenance

of a fund used to identify, investigate and remediate sites where there

is a release or threatened release of hazardous substances,'' including

``'maintaining a capability for emergency response'' when the actual or

threatened release results from the transport of hazardous materials.''

It contended that the decisions in V-1 Oil Co. v. Utah State Dept. of

Public Safety, 131 F.3d 1415 (10th Cir. 1997), and Interstate Towing v.

Cincinnati, 6 F.3d 1154 (6th Cir. 1993), hold that uniform fees that

are used to perform inspections of LPG facilities (in V-1 Oil) or tow

trucks (in Interstate Towing) do not discriminate against interstate

commerce. DEC also referred to Evansville-Vanderburgh Airport Auth. v.

Delta Airlines, Inc., 405 U.S. 707, 717, 92 S.Ct. 1349, 1355 (1972), as

approving a $1.00 charge for each departing passenger on both

interstate and intrastate flights as ``a fair, if imperfect,

approximation of the use of facilities for whose benefit they are

imposed.''

DEC argued that ``tax cases such as Scheiner'' do not invalidate

its remedial action fee. It stated that ``Tennessee's fee provision

does not explicitly treat out-of-state interests differently,'' and

that only transporters who pick up or deliver hazardous waste in the

State must pay the fee, not all ``truckers who merely enter the

State.'' In addition, DEC asserted that there should be no ``concern

about burdensome multiple taxation,'' because ``If all the states were

to adopt a law identical to Tennessee's, the highest number of them

that would assess the fee on a particular shipment would be two, the

beginning and terminating states.'' DEC cited Oklahoma Tax Comm'n v.

Jefferson Lines, Inc., 514 U.S. 175, 115 S.Ct. 1331 (1995), and

Goldberg v. Sweet, 488 U.S. 252, 109 S.Ct. 582 (1989), as situations

where two States might permissibly impose taxes on the same interstate

transaction, i.e., a telephone call between persons in different States

(Goldberg) or the purchase of a bus ticket from one State to another

(Jefferson Lines). DEC maintained that Scheiner has not ``invalidated

all flat taxes, but rather focused on ``the methods by which the flat

taxes are assessed.'' DEC also argues that the remedial action fee ``is

apportioned, as much as it can be,'' because

there is no relation between miles driven and the potential cost of

clean up if there is an accident. One of the most significant

factors in the expense of a clean-up is the location of the spill,

e.g., the proximity to a stream or the nature of the subsurface

conditions and whether they impede the migration into ground water.

* * * These cases [Scheiner and Goldberg] show that the commerce

clause does not require the adoption of an apportionment formula

that does not make sense.

In its rebuttal comments, AWHMT disagreed with each of DEC's

arguments. AWHMT stated that the amount of the Tennessee remedial

action fee is not reasonable because, except for one other State, it is

the highest ``flat, unapportioned'' fee imposed on transporters of

hazardous materials, and it is excessive when compared to ``the level

of the transporter's instate activity'' or the ``DEC clean-up costs,

even if transportation-related.'' AWHMT asserted that mileage ``is

plainly relevant to the risk imposed upon the DEC, or the State for

that matter, by the transportation of hazardous waste.'' Citing the

decisions in the Maine (595 A.2d at 1017) and Massachusetts (613 N.E.2d

at 103) cases, AWHMT argued that the factors cited by DEC do not vary

between interstate and intrastate carriers and that Scheiner requires a

State to apportion its fees based on mileage that the interstate

carrier travels within the State, unless it is impracticable to do so.

AWHMT also noted that RSPA takes into account the number of high

mileage transportation corridors in a State in allocating grants under

the Hazardous Materials Emergency Preparedness (HMEP) grants program,

carried out in accordance with 49 U.S.C. 5116. AWHMT stated that

Tennessee received more than $500,000 from RSPA under the HMEP grant

program between 1993 and 1996 (and a total of $19.4 million over the FY

'92--FY '96 period in Federal assistance for preparing and responding

to transportation emergencies, according to a Department of Energy

report).

AWHMT stressed that the remedial action fee is an annual fee, which

is the same regardless of the number of shipments into or from

Tennessee, and that an interstate carrier is potentially exposed to a

cumulative burden of $32,500 if every State adopted a similar fee. It

is because the fee is set on an annual basis, rather than per shipment,

AWHMT stated, that the fee discriminates against the interstate carrier

who ``would pay a fee up to 49 times higher than the intrastate carrier

for the same level of total covered operations.''

AWHMT also asserted that the same Commerce Clause standards apply,

whether Tennessee calls the remedial action fee a tax or a fee, and

that these fees are ``wholly unlike'' the user fees in the Evansville-

Vanderburgh case and the inspection charges in V-1 Oil and Interstate

Towing because they are not related to the usage of a facility or the

services provided by the State. It stated that any language in

Evansville-Vanderburgh sanctioning ``flat, annual user charges'' (which

were not involved in that case) cannot be relied on following the

Scheiner case. And it disputed DEC's argument that the ``internal

consistency'' test should not apply to Tennessee's remedial action fee,

stating:

An interstate carrier faced with the prospect of paying $650

plus permit fees in advance of any contract for at least a single

delivery or pickup of waste in Tennessee is subject to pressure to

avoid the State altogether. By the same token, if every State

implemented a system like the DEC remedial action, Tennessee

transporters would be pressured to stay out of interstate commerce.

The DEC remedial action fee thus runs squarely afoul of the

fundamental Commerce Clause principle that ``revenue measures must

maintain state boundaries as a neutral factor in economic decision-

making.'' [Scheiner, 483 U.S. at 283]

AWHMT also disagreed with DEC's argument that the remedial action

fee is justified because the State regulates hazardous waste more

closely than it does hazardous substances. According to AWHMT, both

must be transported in accordance with the HMR, which requires the use

of the Uniform Hazardous Waste Manifest for hazardous wastes (but not

other hazardous materials) and refers to the Environmental Protection

Agency's requirement that a transporter of hazardous waste clean up any

release during transportation. See 49 CFR 171.3 (note), 172.205; 40 CFR

Part 263. AWHMT asserted that, ``[i]f environmental protection fee were

in fact the goal, this fee would apply to all hazmat carriers, not just

hazwaste transporters picking up or delivering hazardous waste in the

State.''

In Evansville-Vanderburgh, the Supreme Court found that a state or

[[Page 54478]]

local ``toll'' would pass muster under the Commerce Clause so long as

it ``is based on some fair approximation of use or privilege for use, .

. . and is neither discriminatory against interstate commerce nor

excessive in comparison with the governmental benefit conferred.'' 405

U.S. at 716-17, 92 S.Ct at 1355. In that case, the Court also indicated

that ``a State may impose a flat fee for the privilege of using its

roads, without regard to the actual use by particular vehicles, so long

as the fee is not excessive.'' 405 U.S. at 715, 92 S.Ct. at 1355.

However, in Scheiner, the Court limited the application of this latter

proposition to those situations where a flat tax is ``the only

practicable means of collecting revenues from users and the use of a

more finely graduated user-fee schedule would pose genuine

administrative burdens.'' 483 U.S. at 296, 107 S.Ct. at 2847. More

recently, the Court stated that ``a levy is reasonable under Evansville

if it (1) is based on some fair approximation of the use of the

facilities, (2) is not excessive in relation to the benefits conferred,

and (3) does not discriminate against interstate commerce.'' Northwest

Airlines, Inc. v. Kent, 510 U.S. 355, 367-68, 114 S.Ct. 855, 864

(1994).

As a fixed annual fee, regardless of the number of pick-ups or

deliveries of hazardous waste within the State, Tennessee's remedial

action fee differs from the per-trip fees in Evansville-Vanderburgh and

from the sales or gross receipts taxes on specific interstate

transactions in the Jefferson Lines and Goldberg cases. It is also

different from the fees charged to offset inspections performed by the

State in the V-1 Oil and Interstate Trucking decisions, where the cost

of performing a required inspection would be expected to the same

amount for both interstate and intrastate companies. There is an

absence of any evidence that Tennessee's $650 annual fee has any

approximation to transporters' use of roads or other facilities within

the State, or that ``genuine administrative burdens'' prevent the

application of a more finely graduated user fee to transporters who

pick up or deliver hazardous waste within the State. Accordingly,

Tennessee's remedial action fee fails the test of ``reasonableness'' in

Evansville-Vanderburgh.

This test appears to be the most appropriate one for interpreting

the fairness requirement in 49 U.S.C. 5125(g)(1). RSPA notes that the

House Committee on Energy and Commerce first used the word

``reasonable'' in referring to this requirement, H.R. Report No. 101-

444, Part 1, p. 49 (1990), although this evolved into ``equitable'' in

the 1990 amendments, Pub. L. 101-615, Sec. 13, 104 Stat. 3260, and then

to ``fair'' in the 1994 codification of the Federal hazardous material

transportation law. Pub. L 103-272, 108 Stat. 783. As noted by AWHMT,

Senator Exon subsequently stated in floor debate that, ``even though

the recodification refers to fees that are `fair' rather than

`equitable,' the usual constitutional commerce clause protections

remain applicable and prohibit fees that discriminate or unduly burden

interstate commerce.'' Cong. Rec. S11324 (Aug. 11, 1994).

RSPA notes that it is not simply a potential for multiple fees, but

the lack of any relationship between the fees paid and the respective

benefits received by interstate and intrastate carriers, that

establishes discrimination against interstate commerce. As the

Massachusetts Supreme Judicial Court stated in the case brought by ATA

challenging that State's hazardous waste transporter fee:

[as] viewed from the perspective of the user, as it must be, it is

apparent that the fee does not vary on any ``proxy for value''

obtained from the Commonwealth. An interstate hazardous waste

transporter which travels just one time in the Commonwealth must pay

the same fee as a local hazardous waste transporter. It is therefore

apparent that the ``privilege'' of using the compliance program is

more valuable to local transporters so that the practical effect of

apportioning total costs on a per vehicle basis is to discriminate

against interstate commerce.

415 Mass. at 347, 613 N.E.2d at 102. The Wisconsin Court of Appeals

discussed the difference between a tax on ``services provided by

disposal facilities'' within the State, which

would be constitutionally permissible under the Commerce Clause

because the tax would be imposed on the delivery of services within

the state. Chapter SERB 4 fees are not related to the services

provided by in-state disposal facilities to interstate transporters

but to carriers who cross the state line to use a facility in

Wisconsin. Such fees are not ``apportioned'' in that they are

unrelated to the extent of the mileage traveled within the state.

Such a flat tax or fee clearly violates the spirit of the Commerce

Clause to avoid the economic Balkanization that plagued relations

among the Colonies and later among the States under the Articles of

Confederation.

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

The statutory provisions directing DOT to issue Federal regulations

governing uniform forms and procedures for State registration and

permitting of persons who offer or transport hazardous materials (to be

based on the recommendations of a working group) specifically provide

that DOT's regulations may ``not define or limit the amounts of a fee a

State may impose or collect.'' 49 U.S.C. 5119(c)(1). RSPA ``has never

relied on the potential cumulative effect of a [fee] requirement as a

basis for finding inconsistency,'' IR-17, Illinois Fee on

Transportation of Spent Nuclear Fuel, 51 FR 20926, 20934 (June 9,

1986), although RSPA has previously acknowledged the ``impact of

widespread adoption of such fees [may be] relevant to Commerce Clause

litigation.'' IR-17, Action on Appeal, 53 FR 36200, 36201 (Sept. 25,

1987). Here, there is no showing that the potential for other States to

adopt fees, by itself, makes the Tennessee remedial action fee unfair.

Because Tennessee's remedial action fee imposed on hazardous waste

transporters is not based on some fair approximation of the use of the

facilities and discriminates against interstate commerce, it is not

fair and violates 49 U.S.C. 5125(g)(1) and is preempted by Federal

hazardous material transportation law.

3. The ``Used For'' Test

DEC acknowledged that ``many of the situations the fund is used for

are not related to transportation,'' but argued that it should not have

to create ``two sub-funds, one for transportation incidents and one for

everything else.'' If so, DEC claimed, there would be greater total

costs for the additional ``staff to administer the program [and] it is

quite likely that the transporters would have to pay a much larger fee

to support a fund capable of paying the costs of a significant removal

and remediation effort at a hazardous substance site.''

DEC refused to concede that ``any money paid by a transporter has

actually been paid for any of these other situations or purposes

because the fund has not been below $170,000 in the time period of

concern.'' It also stated that ``Congress clearly authorized fees such

as Tennessee's'' because

The Hazardous Waste Remedial Action Fund is the only source of

funds available to the Department of Environmental Conservation, or

the State of Tennessee, which can be used to hire contractors to

address emergencies caused by spills of hazardous waste resulting

from transportation accidents.

DEC argued that even though it has spent less than $15,000 from

this fund in cleaning up highway and rail incidents, ``[i]t just

happens that the liable party is doing that work rather than the

state's contractor.'' DEC asserted that the fund provides the

capability for emergency response, including developing, implementing,

[[Page 54479]]

and supervising contracts, and that it is inappropriate to compare

receipts and costs in any single year. It stated that ``Sec. 5125(g)

does not require that we look into what events occur in what years with

the possible result that the fee would be preempted in some years and

not in others.''

DEC contrasts its remedial action fee with the fees charged by Los

Angeles County which RSPA found to be preempted in PD-9(R), 60 FR 8774,

8784 (Feb. 15, 1995), petition for reconsideration pending. It stated

that the fees considered in PD-9(R) paid for administration of a

requirement that businesses plan for emergency response to hazardous

materials not in transportation, rather than the State's own capability

for emergency response to a transportation incident. DEC also argued

that ``what the fees are actually spent on is irrelevant,'' under the

Evansville-Vanderburgh case and New Hampshire Motor Transport Ass'n v.

Flynn, 751 F.2d 43 (1st Cir. 1984). These cases, according to DEC, show

that ``it is permissible under the commerce clause and the HMTA to

combine the purposes of a fund.''

In its application, AWHMT asserted that Tennessee's remedial action

fee is preempted because none of the uses of the Hazardous Waste

Remedial Action Fund ``address enforcement and emergency response for

transportation of hazardous materials within the meaning of 49 U.S.C.

5125(g)(1).'' In rebuttal comments, AWHMT questions whether ``inactive

hazardous substance sites'' properly include the location of a

hazardous material transportation incident, because the carriers are

known parties from which the State can recover clean-up costs. It also

questioned whether the `` `clean up' after an emergency has been abated

is `transportation-related' within the meaning of 49 U.S.C.

5125(g)(1).'' AAR agreed that none of the purposes listed in Tennessee

Code 68-212-205, for which the fund may be used, ``target

transportation activities.'' HMAC stated that, while these monies may

be used ``for many worthwhile purposes * * * the use of funds for these

activities is not related to the transportation of hazardous material,

as required by Federal statute, and therefore not permitted.''

AAR also stated in its rebuttal comments that a ``separate

transportation program'' for use of the remedial action fees would not

necessarily involve greater costs because ``Tennessee can create a

separate program with shared administrative costs.'' AAR argued that,

because there is no segregation of the fees paid by transporters of

hazardous waste, it is impossible to find that these fees are being

used only for transportation purposes, as required by Sec. 5125(g)(1).

AAR pointed out that the transporters themselves, rather than the

State, have paid the cost of cleaning up train incidents.

With respect to DEC's statement that the Hazardous Waste Remedial

Action Fund is the only source of funds available to clean up spills of

hazardous waste in transportation, AAR contended that, even if correct,

this point is irrelevant:

Congress did not add a qualification that a State fee would not

be preempted if it were the only source of funds for a particular

purpose. * * * [T]here is nothing to prohibit Tennessee from

developing an emergency response capability utilizing a fee that

does not violate the dictates of 49 U.S.C. Sec. 5125(g).

AWHMT referred to the responsibility of transporters to respond to an

incident and the Federal financial responsibility requirements in 49

CFR Part 387 to cover environmental damage. It also pointed to Federal

assistance, including grants by RSPA under the HMEP program.

In response to DEC's arguments that it had not actually used fees

collected from transporters for non-transportation purposes, AWHMT

addressed several points. It argued that the fact that the funds are

commingled in a single fund precludes a claim of ``non-use,'' that the

State may not properly collect fees on transportation and hold them

indefinitely because Sec. 5125(g)(1) requires that they be ``used'' for

transportation-related activities, and that the total amount collected

from transporters is at least $500,000, rather than the $170,000 just

for 1996.

CERCLA was enacted ``to provide for a national inventory of

inactive hazardous waste sites'' and to authorize EPA ``to take

emergency assistance and containment actions with respect to such

sites,'' finances by a ``Superfund.'' H.R. Report No. 96-1016, Part I,

Interstate and Foreign Commerce Committee, p. 17 (May 16, 1990), as

reprinted in 1980 U.S. Code Congressional and Administrative News, pp.

6119-20. In 1986, Congress amended CERCLA to provide additional funding

``to clean up the Nation's worst abandoned hazardous waste sites and

uncontrolled leaking underground storage tanks.'' H.R. Report No. 99-

253, Part I, Energy and Commerce Committee, p. 54, as reprinted in 1986

U.S. Code Congressional and Administrative News, p. 2836. While an

``inactive'' or ``abandoned'' waste site could result from a release in

transportation, it is clear that the primary purpose of the Superfund

was not to provide for the cleanup of transportation incidents.

Tennessee acknowledges that the primary purpose of its remedial

action fund is similarly to clean up ``inactive hazardous substance

sites.'' The State argues that the fund is also available (and is the

only source for) cleaning up a release of a hazardous substance in

transportation, but it admits that it has spent less than $15,000 in

supervising cleanup activities conducted by transporters--out of the

approximately $170,000 it collects each year. Without providing

specific figures, Tennessee seems to claim that the unspecified excess

that has been built up since 1994 is simply being kept in reserve for

possible future transportation incidents.

This does not satisfy the requirement in 49 U.S.C. 5125(g)(1) that

hazardous material transporter fees must be ``used for a purpose

related to transporting hazardous material, including enforcement and

planning, developing, and maintaining a capability for emergency

response.'' If the State prefers not to create and maintain a separate

fund for fees paid by hazardous materials transporters, then it must

show that it is actually spending these fees on the purposes permitted

by the law. In this area where only the State has the information

concerning where these funds are spent, more specific accounting is

required. Under section 5125(g)(2)(B), upon RSPA's request, a State

must report on ``the purposes for which the revenues from the fee are

used.'' In the April 6, 1998 public notice, RSPA asked Tennessee to set

forth in detail how much it collected and how it used the fees it

collected in fiscal year 1996-97. Although DEC's comments included

information on the amounts of remedial action fees collected, the State

accounted for less than $15,000 in expenditures. Although it claims

that the current balance in the remedial action fund exceeds the amount

collected from transporters in any one year, DEC has failed to

demonstrate that none of the fees collected from transporters were

spent for non-transportation purposes. Nor has it justified imposing

fees on transporters of hazardous waste simply to create a large

surplus for the future.

Because Tennessee is not using the remedial action fees paid by

hazardous waste transporters for purposes related to transporting

hazardous material, that fee violates 49 U.S.C. 5125(g)(1) and is

preempted by Federal hazardous material transportation law.

[[Page 54480]]

C. Written Notification of Incidents

The HMR require a carrier to submit to RSPA, ``within 30 days of

the date of discovery,'' a written report of certain incidents that

occur during the course of transportation, including any

``unintentional release of hazardous materials from a packaging

(including a tank) or [when] any quantity of hazardous waste has been

discharged during transportation.'' This report must be submitted on

DOT Form F 5800.1 and, when it pertains to a discharge of hazardous

waste, a copy of the hazardous waste manifest must be attached, and

``[a]n estimate of the quantity of the waste removed from the scene,

the name and address of the facility to which it was taken, and the

manner of disposition of any removed waste must be entered in Section

IX of the report form.'' 49 CFR 171.16(a).

Section 171.16 was added to the HMR in 1970 in response to a

recommendation of the National Transportation Safety Board that DOT

develop and establish a uniform system for reporting incidents in the

transportation of hazardous materials by all modes. Final Rule, Reports

of Hazardous Materials Incidents, 35 FR 16836, 16837 (Oct. 31, 1970);

see also RSPA's notice of proposed rulemaking (NPRM), 34 FR 17450 (Oct.

29, 1969). In the NPRM, RSPA stated that:

The information derived from these reports will be used by the

Department: (1) As an aid in evaluating the effectiveness of the

existing regulations; (2) to assist in determining the need for

regulatory changes to cover changing transportation safety problems;

and (3) to determine the major problem areas so that the attention

of the Department may be more suitably directed to those areas.

Id. In 1989, the time for submitting written incident reports was

increased from 15 days to 30 days after the carrier's discovery of the

incident, and DOT Form F 5800.1 was revised. Final Rule, Detailed

Hazardous Materials Incident Reports, 54 FR 25806, 25813 (June 19,

1989). RSPA has recently begun a new rulemaking proceeding to evaluate

the need for any change in the reporting requirements and consider

changes to DOT Form F 5800.1 to obtain more useful information and

reduce the burdens on the carriers who are required to submit these

reports. See RSPA's advance notice of proposed rulemaking, 64 FR 13943

(March 23, 1999).

Under DEC Rule 1200-1-11-.04(4)(a)4, a carrier must also send a

written report to DEC ``on each hazardous waste discharge during

transportation that occurs in'' Tennessee. This written report must be

submitted ``[w]ithin fifteen days of occurrence,'' and must include

specified information about the discharge, ``a discussion of the cause

of the emergency, and a summary of the emergency response (including

the treatment or disposition of any spilled waste or contaminated

material).'' A copy of the hazardous waste manifest must be included

with the report. The note to DEC Rule 1200-1-11.-04(4)(a)4 indicates

that a copy of DOT Form F 5800.1 ``shall suffice for this report

provided that it is properly completed and supplemented as necessary to

include all information required by this paragraph.''

Although AAR contended that DEC requires ``more information [to] be

provided'' than on DOT Form F 5800.1, and DEC admitted that its

requirement calls for ``additional information to be submitted besides

what is required on DOT form 5800.1,'' no party specified what

additional information is required. Conceding that its written incident

notification requirement is preempted, DEC stated that its ``[s]taff

has been advised to amend those rules accordingly.'' In rebuttal

comments, AWHMT asserted that DEC has not clarified whether it intends

to eliminate its written incident notification requirement or revise

that requirement to either be more ``consistent with the data sets on

DOT form 5800.1 or otherwise require carriers to provide to the DEC a

copy of the DOT form 5800.1.'' DEC Rule 1200-1-11-.04(4)(a)4 has not

been revised in the current (March 1999) version of DEC's rules

available on the State of Tennessee internet homepage.

Aside from the differing time periods in which the reports must be

filed, and issues concerning the information that must be included,

AWHMT refers to RSPA's prior holdings that Federal hazardous material

transportation law preempts a State requirement for the carrier to

directly submit a copy of the incident report form that it must send to

RSPA. HMAC states that ``Federal law does not require localities to

receive written reports when hazardous waste releases occur within

their jurisdiction.''

In IR-2, RSPA contrasted State requirements for submission of

follow-up written reports with the separate need for local emergency

responders to have immediate oral or telephonic notification of an

transportation incident involving hazardous materials. RSPA stated

that:

The written notice required to be supplied to [DOT] pursuant to

49 CFR 171.16 precludes the State from requiring additional written

notice directed to hazardous materials carriers. * * * In light of

the Federal written notice requirement, however, it is inappropriate

for a State to impose an additional written notice requirement to

apply solely to carriers already subject to the Hazardous Materials

Regulations. The detailed hazardous materials incident reports filed

with [DOT] are available to the public.

44 FR at 75568, affirmed on appeal in IR-2(A), 45 FR 71881, 71884 (Oct.

30, 1980), and in National Tank Truck Carriers, Inc. v. Burke, 535 F.

Supp. 509 (D.R.I. 1982), aff'd, 698 F.2d 559 (1st Cir. 1983).

In IR-3, Boston Rules Governing Transportation of Certain Hazardous

Materials Within the City, 46 FR 18918, 18924 (Mar. 26, 1981), RSPA

referred to its earlier decision in IR-2 and the procedures for RSPA to

provide to a ``designated State agency'' copies of the written reports

required by 49 CFR 171.16. RSPA reiterated its ruling that a State or

locality may not require a carrier to directly submit a copy of the DOT

Form F 5800.1:

Subsequent written reports required within 15 days by DOT are

not necessary to local emergency response. These reports themselves

are publicly available, and [RSPA] is prepared to routinely send

copies of written reports to a designated State agency on request.

Copies of written reports required by DOT * * * may not be required

by [the City's ordinance].

46 FR at 18924. In response to an administrative appeal submitted by

the City of Boston, RSPA further explained that:

the information in a written incident report * * * will very often

be of only limited usefulness, is not time-sensitive, and in any

event can be obtained by the City [from RSPA] with only a minimum of

effort. If the City in fact intends to make serious use of the

information in DOT incident reports, the effort to obtain it from

[RSPA] rather than the carrier should not be significant.

Accordingly, we reaffirm our previous conclusion that Boston's

requirement that carriers submit written reports is redundant,

unnecessary, and inconsistent with the HMTA and HMR.

IR-3(A), 47 FR 18457, 18462 (Apr. 29, 1982). Accord, IR-31, Louisiana

Statutes and Regulations on Hazardous Materials Transportation, 55 FR

25572, 25582 (June 21, 1990), appeal dismissed as moot, 57 FR 41165

(Sept. 9, 1992), where RSPA found that

the provisions of State law which require the submission of written

accident/incident reports are redundant with Federal requirements

(particularly 49 CFR 171.16), tend to undercut compliance with the

HMR requirements, and thus are inconsistent. [citations] This

rationale also applies to requirements to provide copies of the

incident reports filed with [RSPA]; as indicated in IR-3, supra,

such a requirement is inconsistent, but [RSPA] is prepared to

[[Page 54481]]

routinely send copies of those reports to a designated state agency

on request.

In the 1990 amendments to the HMTA, Congress provided that non-

Federal requirements on written incident notification are preempted

unless they are substantively the same as in the HMR. 49 U.S.C.

5125(b)(1)(D). In H.R. Report No. 101-444, Part I, at 34-35 (1990), the

House Committee on Energy and Commerce set forth its belief that

uniform requirements for written notices and reports describing

hazardous materials incidents will allow for the development of an

improved informational database, which in turn may be used to assess

problems in the transportation of hazardous materials. Without

consistency in this area, data related to hazardous materials

incidents may be misleading and confusing. Additional State and

local requirements would also be burdensome on those involved in

such incidents and may lead to liability for minor deviations.

DOT has long encouraged States to adopt and enforce requirements

for transporting hazardous materials that are consistent with the HMR.

Under its Motor Carrier Safety Assistance Program, see 49 CFR Part 350,

FHWA provides grants to States that adopt and enforce requirements that

are compatible with both the HMR and the FHWA's Federal Motor Carrier

Safety Regulations (FMCSR) at 49 CFR Parts 390-399.

Tennessee has adopted the HMR, including 49 CFR 171.16, as State

law, Rule 1200-2-1-.32.7 The State received more than $1.8

million in fiscal year 1999 from DOT to enforce the HMR and the FMCSR.

Accordingly, Tennessee may require a carrier to file a written incident

report with RSPA, under the same conditions specified in 49 CFR 171.16,

and it may impose penalties on a carrier that fails to file the

required written incident report with RSPA. Tennessee may also obtain

from RSPA copies of incident reports filed by carriers in order to

enforce this filing requirement and to conduct follow-up investigations

of incidents occurring within the State. In each of these respects,

Tennessee is acting ``substantively the same as'' Federal law. However,

Tennessee may not require a carrier to file a copy of the DOT Form F

5800.1 report, or a separate incident report, directly with the State.

This last requirement is substantively different from the HMR.

---------------------------------------------------------------------------

\7\ Tennessee Code 68-212-107(d) also provides that

``Regulations providing requirements for the transportation,

containerization, and labeling of hazardous waste shall be

consistent with those issued by the United States department of

transportation * * *''

---------------------------------------------------------------------------

DEC Rule 1200-1-11.-04(4)(a)4 is preempted because it is not

substantively the same as 49 CFR 171.16.

IV. Ruling

Federal hazardous material transportation law preempts:

1. Tennessee Code 68-212-203(a)(6) and Rule 1200-1-13.03(1)(e),

requiring a transporter who picks up or delivers hazardous waste within

the State to pay a remedial action fee, currently set at $650 per year.

2. Tennessee Rule 1200-1-11-.04(4)(a)4, requiring a transporter of

hazardous waste to submit a written report on a discharge of hazardous

waste during transportation.

IV. Petition for Reconsideration/Judicial Review

In accordance with 49 CFR 107.211(a), ``[a]ny person aggrieved'' by

this decision may file a petition for reconsideration within 20 days of

publication of this decision in the Federal Register. Any party to this

proceeding may seek review of RSPA's decision ``in an appropriate

district court of the United States * * * not later than 60 days after

the decision becomes final.'' 49 U.S.C. 5125(f).

This decision will become RSPA's final decision 20 days after

publication in the Federal Register if no petition for reconsideration

is filed within that time. The filing of a petition for reconsideration

is not a prerequisite to seeking judicial review of this decision under

49 U.S.C. 5125(f).

If a petition for reconsideration of this decision is filed within

20 days of publication in the Federal Register, the action by RSPA's

Associate Administrator for Hazardous Materials Safety on the petition

for reconsideration will be RSPA's final decision. 49 CFR 107.211(d).

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

Alan I. Roberts,

Associate Administrator for Hazardous Materials Safety.

[FR Doc. 99-26037 Filed 10-5-99; 8:45 am]

BILLING CODE 4910-60-P