DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
[Docket No. RSPA-00-8026 (PD-26(R))]
Massachusetts' Definitions of Hazardous Materials
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Notice of administrative determination of preemption.
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Applicant: Boston and Maine Corporation (Boston and Maine).
Local Laws Affected: Massachusetts General Laws (M.G.L.) chapter 21
E, section 2 (ch. 21 E); and chapter 21 K, section 1 (ch. 21 K).
Applicable Federal Requirements: The Federal Hazardous Material
Transportation Law (Federal Hazmat Law), 49 U.S.C. 5101 et seq., and
the Hazardous Materials Regulations (HMR), 49 CFR parts 171-180.
Modes Affected: Rail and Highway.
SUMMARY: The Federal Hazmat Law does not preempt the definitions of
"hazardous material" in M.G.L. chs. 21 E and 21 K. As applied and
enforced, the challenged provisions of Massachusetts' laws are not an
"obstacle" to accomplishing and carrying out the Federal Hazmat Law,
the HMR, or a hazardous materials transportation security regulation or
directive issued by the Secretary of Homeland Security. Because a
regulated entity may comply with the State and Federal requirements at
the same time the Massachusetts' laws are not preempted under the
"dual compliance" test. These definitions and State requirements also
do not concern any of the five subject areas in which State Authority
is expressly preempted by the Federal Hazmat Law, and State enforcement
of these laws does not otherwise frustrate Congressional intent.
FOR FURTHER INFORMATION CONTACT: Thomas D. Seymour, Office of Chief
Counsel, Pipeline and Hazardous Materials Safety Administration, (202)
366-4400, U.S. Department of Transportation, 1200 New Jersey Avenue,
SE., Room E26-322, Washington, DC 20590; e-mail: tom.seymour@dot.gov.
SUPPLEMENTARY INFORMATION:
I. Issues Under Consideration
In this determination, PHMSA considers the definitions of
"hazardous material" as contained in M.G.L. chs. 21 E and 21 K.
Chapter 21 E and entitled "Massachusetts Oil and Hazardous Materials
Release Prevention and Response Act" to be parallel with the Federal
Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C. 9601 et seq. ("CERCLA" or "Superfund law"). Chapter 21 K,
"Mitigation of Hazardous Materials," governs the State's emergency
mitigation response to a release, or threat of release, of materials
determined by the state to pose a risk of contamination to the local
environment. This statute authorizes the Massachusetts Department of
Fire Services to deploy personnel and equipment for emergency
mitigation response caused by a release, or threat of release, of
materials determined to be a potential environment contaminant. Chapter
21 K also provides for the dispatch of trained personnel to evaluate a
potential risk of contamination to the environment.
Both M.G.L. chs. 21 E and 21 K use the term "hazardous material"
to refer to substances triggering the laws' requirements. Under Chapter
21 E a "hazardous material" is defined as:
A material including but not limited to, any material, in
whatever form, which because of its quantity, concentration,
chemical, corrosive, flammable, reactive, toxic, infectious or
radioactive characteristics, either separately or in combination
with any substance or substances, constitutes a present or potential
threat to human health, safety, welfare, or to the environment, when
improperly stored, treated, transported, disposed of, used, or
otherwise managed.
Chapter 21 K contains the same definition except that it expressly
identifies "oil" as a hazardous material.
II. Background
A. Summary of Facts
On June 27, 1999, six railcars from a Boston and Maine train
derailed in the Charlemont, MA area, causing an unidentified material
to leak into the ground and nearby Deerfield River. The Charlemont Fire
Department responded to the incident and, when it could not identify
the material, called the Massachusetts Hazardous Material Response
Team. When the Response team identified the material, and determined it
did not pose a risk to the environment, the team abandoned further
cleanup efforts and turned the scene over to Boston and Maine's
personnel.
Massachusetts later presented an invoice to Boston and Maine for
the cost of the response and the discontinued cleanup. Boston and Maine
objected and sought relief through state administrative procedures.
Subsequently, Boston and Maine filed a complaint in Massachusetts
Superior Court for Middlesex County, alleging errors in law associated
with the Massachusetts Department of Fire Services' assessment of the
response costs. While the State civil action was pending, Boston and
Maine filed the present request for an Administrative determination of
preemption. (The petition was filed with the Research and Special
Programs Administration (RSPA) the predecessor of the Pipeline and
Hazardous Materials Safety Administration (PHMSA)). For ease of
reading, this publication will refer to PHMSA in describing the
agency's conduct during this proceeding.
B. Application for Preemption
Boston and Maine applied for a determination of preemption,
contending the Federal Hazmat Law preempts the definitions of
"hazardous material" contained in M.G.L. chs. 21 E and 21 K. Boston
and Maine makes three arguments for preemption: (1) The definitions of
"hazardous material" in the Massachusetts laws are not substantively
the same as those in the Federal Hazmat Law; (2) the definitions pose
an obstacle to the uniform regulation of transportation; and (3) by
passing 49 U.S.C. 5125(b), Congress intended the Federal Hazmat Law to
encompass all aspects of a response to a release or threat of release
of a hazardous material while in transportation.
On November 16, 2000, PHMSA published a Notice in the Federal
Register inviting interested parties to comment on the application (65
FR 69365). In response to requests from Massachusetts, and to give the
parties an opportunity to research and analyze the issues, PHMSA twice
extended the time for public comment (65 FR 79458 (Dec. 19, 2000), 66
FR 8845 (Feb. 2, 2001)).
C. Federal Preemption
In the absence of a waiver of preemption by DOT (49 U.S.C. 5125(e))
or a grant of specific authority in another Federal law, the Federal
Hazmat Law preempts a requirement of a State, political subdivision of
a State, or Indian tribe 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, or a hazardous materials
transportation security regulation or directive issued by the
Secretary of Homeland Security is not possible; or
(2) The requirement of the State, political subdivision, or
Indian tribe, as applied or enforced, is an obstacle to
accomplishing and carrying out this chapter or a regulation
prescribed under this chapter or a hazardous materials
transportation security regulation or directive issued by the
Secretary of Homeland Security (49 U.S.C. 5125(a)).
The two paragraphs in 49 U.S.C. 5125(a) set forth the "dual
compliance" and "obstacle" tests. Prior to the 1990 codification of
these two tests, PHMSA applied the tests when issuing inconsistency
rulings under the original preemption provisions in the Hazardous
Materials Transportation Act (HMTA) (Pub. L. 93-633, 112(a), 88 Stat.
2161 (1975)). The two tests evolved from U.S. Supreme Court decisions
(See 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)).
PHMSA also has preemption authority under a "substantively the
same" test (49 U.S.C. 5125(b)(1)). A non-Federal requirement
concerning any of the subjects listed in 49 U.S.C. 5125(b)(1), which is
not "substantively the same as" a provision of the Federal Hazmat Law
or a regulation prescribed under that law, or a hazardous materials
transportation security regulation or directive issued by the Secretary
of Homeland Security, is preempted unless the non-Federal requirement
is authorized by another Federal law or DOT grants a waiver of
preemption. Section 5125(b)(1) of 49 U.S.C. lists the following
categories:
(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; and
(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.
These areas "are critical both to the safe transportation of
hazardous materials and the free flow of commerce," and any non-
Federal law or requirement falling within one of these areas creates an
obstacle if the non-Federal requirement is substantively different (PD-
23 (RF); Morrisville, PA, Requirements for Transportation of
"Dangerous Waste," Decision on Petition for Reconsideration, 67 FR
2948, 2949 (Jan. 22, 2002), internal quotes omitted). The non-Federal
requirement must "conform in every significant respect to the Federal
requirement to be considered substantively the same. Editorial and
other similar de minimis changes are permitted" (49 C.F.R.
107.202(d)).
The preemption provisions in 49 U.S.C. 5125 are intended to promote
the safe movement of goods in interstate commerce by "preclude[ing] 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 amending the HMTA in 1990, Congress specifically found:
(1) 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,
(2) 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,
(3) In order to achieve greater uniformity and to promote the
public health, welfare, and safety at all levels, Federal standards
for regulating the transportation of hazardous materials in
intrastate, interstate, and foreign commerce are necessary and
desirable (Pub. L. 101-615, 2, 104 Stat. 3244).
Uniformity is the "linchpin" in the design of the HMTA, including
the 1990 amendments expanding the original preemption provisions
(Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1575 (10th Cir.
1991)). (In 1994, Congress revised, codified, and enacted the HMTA
"without substantive change," at 49 U.S.C. Chapter 51 (Pub. L. 103-
272, 108, Stat. 745)).
Any person directly affected by a non-Federal law or regulation may
apply to the Secretary of Transportation for a determination whether a
State, local or tribal requirement is preempted (49 U.S.C. 5125(d)(1)).
The Secretary of Transportation delegated to PHMSA the authority to
make determinations of preemption concerning hazardous materials
transportation issues, except for issues concerning highway routing,
which the Secretary delegated to the Federal Motor Carrier Safety
Administration (49 CFR 1.53(b) and 1.73(d)(2)).
PHMSA Preemption determinations do not address issues of preemption
arising under the Commerce Clause, the Fifth Amendment or other
provisions of the Constitution. Preemption determinations issued by
PHMSA also do not address questions arising under other Federal
statutes unless it becomes necessary to determine whether the
requirement questioned in the preemption request is authorized or
required by another Federal law.
In making preemption determinations, PHMSA is guided by the
principles of Federalism and the policies set forth in Executive Order
No. 13132 (64 FR 43255 (August 10, 1999)). PHMSA may preempt a State
law only if a Federal statute contains an express preemption provision,
there is other clear evidence that Congress intended to
preempt State law, or the exercise of State authority directly
conflicts with the exercise of Federal authority. The Federal Hazmat
Law contains an express preemption provision at section 5125, and PHMSA
implemented this provision through its regulations.
PHMSA must publish a notice of an application for a preemption
determination in the Federal Register (49 U.S.C. 5125(d)(1)). Following
the receipt and consideration of written comments, PHMSA must publish
its determination in the Federal Register (49 CFR 107.209(d) and
107.211(d)).
D. Summary of Comments to Application for Preemption
Nufarm, Inc (Nufarm), and the National Tank Truck Carriers, Inc.
(NTTC) provided comments in support of Boston and Maine's application
(RSPA-2000-8026-8 and RSPA-2000-8026-10 respectively). Nufarm and NTTC
urge PHMSA to declare the Massachusetts provisions preempted on the
ground that the definitions in question are not substantively the same
as the definition found in the Federal Hazmat Law.
PHMSA received comments in opposition to Boston and Maine's
application from: (1) The Massachusetts Attorney General (AG), on
behalf of (a) The Commonwealth of Massachusetts, (b) Massachusetts
Department of Fire Services, and (c) Department of Environmental
Protection; (2) the State of New York (Department of Environmental
Conservation and the Attorney General); (3) the Fire Chief for Devens,
Massachusetts; (4) the Fire Chiefs' Association of Massachusetts, Inc.;
(5) the State of Vermont; (6) the State of Connecticut; and (7) the
Massachusetts Public Interest Group (MASSPRG).
The Massachusetts AG argues the intention of Congress in passing
the Federal Hazmat Law was not to preempt the entire field of a State's
emergency response necessitated by the threat of environmental
contamination. Accordingly, the AG argues, the State laws in question
do not frustrate, and are not an obstacle to, the accomplishment of the
goals of the Federal Hazmat Law or the regulations promulgated
thereunder.
Likewise, the AG asserts that PHMSA should not find that the
Federal Hazmat Law preempts State requirements under the dual-
compliance test, because a person may simultaneously comply with both
the Federal and non-Federal laws and regulations. MASSPRG agrees with
the Commonwealth's dual-compliance argument (RSPA-2000-8026-12).
In the alternative, the AG challenges the applicability of the
preemption standards. The AG contends that the Federal Hazmat Law has
no application to the subjects addressed in M.G.L. Chs. 21 E and 21 K,
because once a release occurs, the materials are no longer in
transportation (See also letters from MASSPRG, The State of New York
(RSPA-2000-8026-14); Deven's Fire Chief (RSPA-2000-80226-15) and the
Fire Chiefs' Association of Massachusetts (RSPA-2000-8026-16)).
Lastly, the AG argues preemption is not appropriate because other
Federal laws, such as CERCLA and Superfund Amendments and
Reauthorization Act (SARA), title III, require States to respond to
releases of potentially hazardous materials or environmental
contaminants. The existence of such laws, the AG argues, shows Congress
did not intend for the Federal Hazmat Law to apply to emergency
response situations.
III. Discussion
A. "Substantively the Same" Test
In the Federal Hazmat Law, Congress provided for express preemption
of a non-Federal requirement "about * * * the designation,
description, and classification of hazardous materials" not
"substantively the same" as the provisions of Title 49, Chapter 51 of
the United States Code (49 U.S.C. 5125(b)). In order to fully evaluate
Boston and Maine's claim, PHMSA must look at the goals and objectives
of the Federal Hazmat Law and the State laws in question. When
reviewing the goals and objectives of these laws, PHMSA "start[s] with
the assumption that the historic police powers of the States were not
to be superseded by the Federal [Hazmat Law] unless that was the clear
and manifest purpose of Congress" Rice v. Santa Fe Elevator Corp., 331
U.S. 218, 230 (1947). Physical cleanup after a release of a material is
traditionally a police power of the State (Inconsistency Ruling No. 2;
State of Rhode Island Rules and Regulations Governing the
Transportation of Liquefied Natural Gas and Liquefied Propane Gas
Intended To Be Used by a Public Utility (44 FR 75566, 75568, Dec. 20,
1979)).
The purpose of the Federal Hazmat Law is to "provide adequate
protection against the risk to life and property inherent in the
transportation of hazardous materials in commerce" (49 U.S.C.
5103(b)). Massachusetts General Law ch. 21 K is intended to provide for
the quick, efficient, and effective cleanup of releases of
environmental contaminants and the evaluation of threats of releases of
materials possibly posing a threat to the environment. It provides the
mechanism by which the State or private individuals may seek recompense
for the costs of response and cleanup caused by a release of certain
materials into the environment. The focus of ch. 21 K is environmental
protection, not the transportation of hazardous materials.
Massachusetts General Law ch. 21 E focuses on the State response
to, and cleanup of, a release of environmental contaminants and, to
that end, requires the identification of materials that may contaminate
the local environment. This statute allows proper state authorities to
determine which materials cause, or might cause, a contamination to the
local environment if released. The Federal Hazmat Law requires the DOT
to also identify materials that pose a risk to the environment.
However, in contrast to the Massachusetts laws, the Federal Hazmat Law
endeavors to ensure that materials are transported without release.
With a primary focus on preventing a release, the Federal Hazmat Law
serves a more limited environmental role after a release that
necessitates a cleanup or mediation. For example, if a release of a
hazardous material occurs during transportation, the Federal Hazmat
Law, through the HMR, ensures that first responders receive adequate
information concerning the materials listed in the HMR, and it also
requires the reporting of release information to the appropriate
authorities.
The Massachusetts laws do not directly or indirectly affect or
conflict with the transportation of hazardous materials or with
transportation in general. The State's use of the term "hazardous
material" to describe materials that may contaminate the local
environment does not bring it into conflict with Federal law and is not
a basis for preemption.
Given the distinct purposes served by the Federal Hazmat Law and
the State laws, the lack of direct or indirect effect or conflict
between them, and the States' traditional police powers in matters
involving environmental protection, the Massachusetts laws are not
preempted under 49 U.S.C. 5125(b). Accordingly, we need not address the
question of whether a material remains in transportation after a
release has occurred.
B. Obstacle Test
In applying the "obstacle" test, we consider any and all
requirements imposed by the HMR, including those governing packaging;
the marking and labeling of packages; and the reporting of a release
occurring during transportation. We next consider whether the non-Federal requirement
"as applied and enforced" stands in the way of compliance with, or
enforcement of, the Federal Hazmat Law.
The State laws currently under consideration provide authority to
respond to a release or threat of release of materials that
Massachusetts found to pose a risk to the soil, water, or environment
of Massachusetts. These laws also allow for the cleanup of contaminants
and the recovery of the cleanup and response costs. No evidence in the
record suggests that ch. 21 E or 21 K, as applied and enforced,
interferes with accomplishing the packaging, marking, labeling,
reporting, or any other provision of the HMR. Neither Boston and Maine,
nor any commenter, has alleged or shown Massachusetts to be applying or
enforcing either ch. 21 E or 21 K in a manner imposing different or
additional requirements on a carrier, or any other persons subject to
the HMR. Accordingly, M.G.L. chs. 21 E and 21 K are not preempted by
the Federal Hazmat Law by operation of the "obstacle" test.
C. Dual Compliance Test
For similar reasons, we do not find M.G.L. chs. 21 E or 21 K
preempted under the "dual compliance" test. Nothing in those laws,
including the subject definitions, affects either: (1) The manner in
which a shipper must package, label, or mark a hazardous material for
transportation; (2) the duties of a carrier when it accepts a shipment
of hazardous materials complying with the HMR; or (3) a carrier's
obligation to report a release of a material determined by the
Secretary of Transportation to be a "hazardous material." Therefore,
the facts presented in this matter show a person can simultaneously
comply with the requirements of the Federal Hazmat Law and the State
laws.
D. Intent of Congress
Finally, we consider the contention of Boston and Maine that the
Massachusetts laws fall within a regulatory field that Congress
intended would be exclusively reserved to PHMSA. We conclude to the
contrary. On matters concerning the physical response and cleanup of
contamination, Congress left room for States and localities to exercise
their traditional authority.
PHMSA enters this field in limited respects, imposing certain
requirements related to the release of designated hazardous materials
in or in connection with transportation. Other Federal agencies
regulate aspects of releases or threats of releases of hazardous
materials and any other materials posing a risk to the environment.
Congress granted the Environmental Protection Agency (EPA), and
Occupational Safety and Health Administration (OSHA) authority to
regulate aspects of the response to a release or threat of release of
hazardous materials. Furthermore, States have retained their
traditional authority relating to the release or threat of release of
materials occurring within State borders.
Under the Federal Hazmat Law, PHMSA promulgates regulations
requiring a person offering hazardous materials for transportation to
provide carriers with certain emergency response information to
accompany the hazardous materials while in transportation. The
mandatory information includes: (1) Information regarding the materials
present in the shipment, (2) what hazards the materials may present,
(3) how to treat the materials, (4) preliminary first aid measures, and
(5) how to avoid risk of injury. This information is conveyed by the
placarding of the transport vehicle, the marking and labeling of the
packaging, and the content of shipping papers. PHMSA also regulates
incident reporting and recording, prescribing when, how, and to whom
reports must be made of hazardous materials releases occurring during
transportation.
PHMSA has long recognized that the actual physical response and
cleanup after a release of materials during transportation is a local
responsibility. In Inconsistency Ruling No. 2; State of Rhode Island
Rules and Regulations Governing the Transportation of Liquefied Natural
Gas and Liquefied Propane Gas Intended To Be Used by a Public Utility
(44 FR 75566, Dec. 20, 1979), PHMSA identified subjects as to which the
need for national uniformity is so crucial and the scope of the HMTA
(now Federal Hazmat Law) is so pervasive that State or local
regulations would present obstacles to the HMTA. PHMSA also identified
subjects as to which the Federal Hazmat Law and HMR did not (and still
do not) apply. Specifically, PHMSA stated:
Despite the dominant role that Congress contemplated for the
Departmental standards, there are certain aspects of hazardous
materials transportation that are not amenable to effective
nationwide regulation. One example is safety hazards that are
peculiar to a local area. * * * Another example is emergency
response activity. Although the Federal Government can regulate in
order to avert situations where emergency response is necessary, and
can aid in local and State planning and preparing, when an accident
does occur, response is, of necessity, a local responsibility (44 FR
at 75568).
The HMR also prescribe requirements for written notification,
recording, and reporting after a release of a material the Secretary of
Transportation has deemed poses "an unreasonable risk to health and
safety or property" when the material is in transportation or in
storage incidental to its movement in transportation. The Secretary of
Transportation lists these materials in 49 CFR 172.101. Even as to
those materials, the Federal Hazmat Law does not authorize PHMSA to
regulate the cleanup, assessment, remediation, evaluation of releases
of such materials, or to seek reimbursement for the costs caused by a
release of such materials.
In short, in the area of response and cleanup of materials released
during transportation, the Federal Hazmat Law does not provide PHMSA
authority that "is so pervasive as to make reasonable the inference
that Congress left no room for the state to supplement it."
Accordingly, we do not find that the Massachusetts laws regulate a
field reserved to PHMSA by Federal law and are not otherwise persuaded
that in adopting the Federal Hazmat Law, Congress intended to preempt
laws such as the Massachusetts laws under consideration here.
V. Ruling
The Federal Hazmat Law does not preempt Massachusetts' definitions
of hazardous materials contained in M.G.L., Ch. 21 E, section 2 and Ch.
21 K, section 1 because these definitions relate solely to
environmental response and cleanup requirements. The State requirements
as applied and enforced are not an obstacle to accomplishing and
carrying any provision of the Federal Hazmat Law, the HMR, or a
transportation security regulation or directive issued by the Secretary
of Homeland Security and do not concern any of the five subject areas
reserved to federal jurisdiction under 49 U.S.C. 5125(b) or 49 CFR
171.202(a).
VI. Petition for Reconsideration/Judicial Review
This determination is a final agency action upon publication in the
Federal Register (49 CFR 107.209(c), as amended at 71 FR 30067 [May 25,
2006]), except with respect to a person who files a timely petition for
reconsideration. In accordance with 49 CFR 107.211(a) (as amended at 71
FR 30068 [May 25, 2006]), a person aggrieved by this determination may
file a petition for reconsideration within 20 days of publication of
this determination in the Federal Register. The filing of a petition for
reconsideration is not a prerequisite to seeking judicial review under
49 U.S.C. 5127(a).
A person who is adversely affected or aggrieved by a preemption
determination may file a petition for judicial review of that
determination in the United States Court of Appeals 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).
Issued in Washington, DC on this 15th day of January, 2009.
David E. Kunz,
Chief Counsel.
[FR Doc. E9-1419 Filed 1-22-09; 8:45 am]
BILLING CODE 4910-60-P
[Federal Register: January 23, 2009 (Volume 74, Number 14)]
[Notices]
[Page 4287-4291]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23ja09-125]
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