82 FR 8257 - Hazardous Materials: Oregon Hazardous Waste Management Regulation

DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration

Federal Register Volume 82, Issue 14 (January 24, 2017)

Interested parties are invited to comment on an application by NORA, An Association of Responsible Recyclers (NORA) for an administrative determination as to whether Federal hazardous material transportation law preempts a hazardous waste regulation of the State of Oregon that imposes a strict liability standard on transporters.

[Federal Register Volume 82, Number 14 (Tuesday, January 24, 2017)]
[Notices]
[Pages 8257-8259]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-00788]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-2016-0163; PDA-39(R)]


Hazardous Materials: Oregon Hazardous Waste Management Regulation

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Public Notice and Invitation to comment.

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SUMMARY: Interested parties are invited to comment on an application by 
NORA, An Association of Responsible Recyclers (NORA) for an 
administrative determination as to whether Federal hazardous material 
transportation law preempts a hazardous waste regulation of the State 
of Oregon that imposes a strict liability standard on transporters.

DATES: Comments received on or before March 10, 2017 and rebuttal 
comments received on or before April 24, 2017 will be considered before 
an administrative determination is issued by PHMSA's Chief Counsel. 
Rebuttal comments may discuss only those issues raised by comments 
received during the initial comment period and may not discuss new 
issues.

ADDRESSES: NORA's application and all comments received may be reviewed 
in the Docket Operations Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590. The application and all 
comments are available on the U.S. Government Regulations.gov Web site: 
http://www.regulations.gov.
    Comments must refer to Docket No. PHMSA-2016-0163 and may be 
submitted by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Fax: 1-202-493-2251.
     Mail: Docket Operations Facility (M-30), U.S. Department 
of Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590.
     Hand Delivery: Docket Operations Facility (M-30), U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue SE., Washington, DC 20590, between 9:00 a.m. and 
5:00 p.m., Monday through Friday, except Federal holidays.
    A copy of each comment must also be sent to (1) Scott D. Parker, 
Executive Director, NORA, An Association of Responsible Recyclers, 7250 
Heritage Village Plaza, Suite 201, Gainesville, VA 20155, and (2) Ellen 
Rosenblum, Attorney General, Justice Building, 1162 Court Street NE., 
Salem OR 97301. 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 
Mr. Parker and Ms. Rosenblum at the addresses specified in the Federal 
Register.'')
    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing a comment submitted on behalf of an 
association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19477-78), or you may visit http://www.regulations.gov.
    A subject matter index of hazardous materials preemption cases, 
including a listing of all inconsistency rulings and preemption 
determinations, is available through PHMSA's home page at http://phmsa.dot.gov. From the home page, click on ``Hazardous Materials 
Safety,'' then on ``Standards & Rulemaking,'' then on ``Preemption 
Determinations'' located on the right side of the page. A paper copy of 
the index will be provided at no cost upon request to Mr. Lopez, at the 
address and telephone number set forth in the FOR FURTHER INFORMATION 
CONTACT section below.

FOR FURTHER INFORMATION CONTACT: Vincent Lopez, Office of Chief Counsel 
(PHC-10), Pipeline and Hazardous Materials Safety Administration, U.S. 
Department of Transportation, 1200 New Jersey Avenue SE., Washington, 
DC 20590; telephone No. 202-366-4400; facsimile No. 202-366-7041.

SUPPLEMENTARY INFORMATION: 

I. Application for a Preemption Determination

    NORA has applied to PHMSA for a determination whether Federal 
hazardous material transportation law, 49 U.S.C. 5101 et seq., preempts 
the State of Oregon's Administrative Rule (OAR), OAR 340-100-0002(1) 
\1\, as it is applied to transporters. Specifically, NORA states that 
the Oregon Environmental Quality Commission (OEQC) interprets the 
Oregon regulation, which adopts the United States Environmental 
Protection Agency's regulation, 40 CFR 263.20(a)(1), as imposing a 
strict liability standard on transporters of hazardous waste.\2\ 
According to NORA, under Oregon law, ``the transporter exercising 
reasonable care may not rely on the information provided by the 
generator and instead must be held to a strict liability standard.'' 
(emphasis omitted).
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    \1\ The Oregon regulation adopts by reference the United States 
Environmental Protection Agency's rules and regulations governing 
the management of hazardous waste, including its generation, 
transportation, treatment, storage, recycling and disposal, as 
prescribed in 40 CFR parts 260 to 268, 270, and 273, and subparts A 
and B of part 124. See OAR 340-100-0002(1).
    \2\ NORA states that this issue is being litigated and is 
presently under consideration by the Oregon Supreme Court.
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    NORA presents three main arguments for why it believes Oregon's 
hazardous waste regulation should be preempted. First, NORA contends 
that it is not possible to comply with both the Oregon rule and the 
federal requirements because the ``HMTA regulation requires the 
transporter to exercise reasonable care'' while Oregon's strict 
liability interpretation does not. Next, NORA argues that

[[Page 8258]]

Oregon's strict liability standard creates an obstacle for interstate 
transporters. Furthermore, NORA opines that the State's inconsistent 
strict liability standard will encourage the misclassification of 
hazardous material. Last, NORA states ``a strict liability standard is 
not `substantively the same' as a reasonable care liability standard.'' 
NORA notes that ``under Oregon's interpretation, a transporter who 
satisfies the reasonable care standard in section 171.2(f) would 
nonetheless be strictly liable for the generator's waste 
mischaracterization.''
    In summary, NORA contends the State of Oregon's Administrative 
Rule, OAR 340-100-0002(1), should be preempted because:
     It is not possible to comply with both the Oregon rule and 
the federal requirements;
     It creates an obstacle to carrying out the federal 
requirements; and
     A strict liability standard is not substantively the same 
as the federal requirements.

II. Federal Preemption

    Section 5125 of 49 U.S.C. contains express preemption provisions 
relevant to this proceeding. As amended by Section 1711(b) of the 
Homeland Security Act of 2002 (Pub. L. 107-296, 116 Stat. 2319), 49 
U.S.C. 5125(a) provides that a requirement of a State, political 
subdivision of a State, or Indian tribe is preempted--unless the non-
Federal requirement is authorized by another Federal law or DOT grants 
a waiver of preemption under section 5125(e)--if (1) complying with the 
non-Federal requirement and the Federal requirement is not possible; or 
(2) the non-Federal requirement, as applied and enforced, is an 
obstacle to accomplishing and carrying out the Federal requirement.
    These two sentences set forth the ``dual compliance'' and 
``obstacle'' criteria that PHMSA's predecessor agency, the Research and 
Special Programs Administration, 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 Sec.  
112(a), 88 Stat. 2161 (1975). The dual compliance and obstacle criteria 
are based on U.S. Supreme Court decisions on preemption. Hines v. 
Davidowitz, 312 U.S. 52 (1941); Florida Lime & Avocado Growers, Inc. v. 
Paul, 373 U.S. 132 (1963); Ray v. Atlantic Richfield, Inc., 435 U.S. 
151 (1978).
    Subsection (b)(1) of 49 U.S.C. 5125 provides that a non-Federal 
requirement concerning any of the following subjects is preempted--
unless authorized by another Federal law or DOT grants a waiver of 
preemption--when the non-Federal requirement is not ``substantively the 
same as'' a provision of Federal hazardous material transportation law, 
a regulation prescribed under that law, or a hazardous materials 
security regulation or directive issued by the Department of Homeland 
Security. The five subject areas include: The designation, description, 
and classification of hazardous material; the packing, repacking, 
handling, labeling, marking, and placarding of hazardous material; the 
preparation, execution, and use of shipping documents related to 
hazardous material and requirements related to the number, contents, 
and placement of those documents; the written notification, recording, 
and reporting of the unintentional release in transportation of 
hazardous material and other written hazardous materials transportation 
incident reporting involving State or local emergency responders in the 
initial response to the incident; and the designing, manufacturing, 
fabricating, inspecting, marking, maintaining, reconditioning, 
repairing, or testing a package, container, or packaging component that 
is represented, marked, certified, or sold as qualified for use in 
transporting hazardous material in commerce.
    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).\3\
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    \3\ Additional standards apply to preemption of non-Federal 
requirements on highway routes over which hazardous materials may or 
may not be transported and fees related to transporting hazardous 
material. See 49 U.S.C. 5125(c) and (f). See also 49 CFR 171.1(f) 
which explains that a ``facility at which functions regulated under 
the HMR are performed may be subject to applicable laws and 
regulations of state and local governments and Indian tribes.''
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    The 2002 amendments and 2005 reenactment of the preemption 
provisions in 49 U.S.C. 5125 reaffirmed Congress's long-standing view 
that a single body of uniform Federal regulations promotes safety 
(including security) in the transportation of hazardous materials. More 
than thirty years ago, when it was 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 Congress expanded the preemption provisions in 
1990, it specifically found that many States and localities have 
enacted laws and regulations which vary from Federal laws and 
regulations pertaining to the transportation of hazardous materials, 
thereby creating the potential for unreasonable hazards in other 
jurisdictions and confounding shippers and carriers which attempt to 
comply with multiple and conflicting registration, permitting, routing, 
notification, and other regulatory requirements. And 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. Therefore, 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.\4\
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    \4\ Public Law 101-615 Sec.  2, 104 Stat. 3244. (In 1994, 
Congress revised, codified and enacted the HMTA ``without 
substantive change,'' at 49 U.S.C. Chapter 51. Public Law 103-272, 
108 Stat. 745 (July 5, 1994).)
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    A United States Court of Appeals has found uniformity was the 
``linchpin'' in the design of the Federal laws governing the 
transportation of hazardous materials. Colorado Pub. Util. Comm'n v. 
Harmon, 951 F.2d 1571, 1575 (10th Cir. 1991).

III. Preemption Determinations

    Under 49 U.S.C. 5125(d)(1), any person (including a State, 
political subdivision of a State, or Indian tribe) directly affected by 
a requirement of a State, political subdivision or tribe may apply to 
the Secretary of Transportation for a determination whether the 
requirement is preempted. The Secretary of Transportation has delegated 
authority to PHMSA to make determinations of preemption, except for 
those concerning highway routing (which have been delegated to the 
Federal Motor Carrier Safety Administration). 49 CFR 1.97(b).
    Section 5125(d)(1) requires notice of an application for a 
preemption determination to be published in the Federal Register. 
Following the receipt and consideration of written comments, PHMSA 
publishes its determination in the Federal Register. See 49 CFR 
107.209(c). A short period of time is allowed for filing of petitions 
for reconsideration. 49 CFR 107.211. A petition for judicial review of 
a final preemption determination must be filed in the United States 
Court of Appeals

[[Page 8259]]

for the District of Columbia or in the Court of Appeals for the United 
States for the circuit in which the petitioner resides or has its 
principal place of business, within 60 days after the determination 
becomes final. 49 U.S.C. 5127(a).
    Preemption determinations do not address issues of preemption 
arising under the Commerce Clause, the Fifth Amendment or other 
provisions of the Constitution, or 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, or whether a fee is ``fair'' within the meaning of 49 
U.S.C. 5125(f)(1). 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), PHMSA 
is guided by the principles and policies set forth in Executive Order 
No. 13132, entitled ``Federalism'' (64 FR 43255 (Aug. 10, 1999)), and 
the President's May 20, 2009 memorandum on ``Preemption'' (74 FR 24693 
(May 22, 2009)). Section 4(a) of that Executive Order authorizes 
preemption of State laws only when a statute contains an express 
preemption provision, there is other clear evidence Congress intended 
to preempt State law, or the exercise of State authority directly 
conflicts with the exercise of Federal authority. The President's May 
20, 2009 memorandum sets forth the policy ``that preemption of State 
law by executive departments and agencies should be undertaken only 
with full consideration of the legitimate prerogatives of the States 
and with a sufficient legal basis for preemption.'' Section 5125 
contains express preemption provisions, which PHMSA has implemented 
through its regulations.

IV. Public Comments

    All comments should be directed to whether 49 U.S.C. 5125 preempts 
a hazardous waste regulation of the State of Oregon that imposes a 
strict liability standard on transporters. Comments should specifically 
address the preemption criteria discussed in Part II above.

    Issued in Washington, DC, on January 10, 2017.
Vasiliki Tsaganos,
Acting Chief Counsel.
[FR Doc. 2017-00788 Filed 1-23-17; 8:45 am]
 BILLING CODE 4910-60-P