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Introduction
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Index of Rulings
Inconsistency Rulings
Preemption Determinations
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Rules & Regulations

Pipeline and Hazardous Materials Safety Administration


SUBJECT-MATTER HEADINGS IN
INDEX OF PREEMPTION DETERMINATIONS/INCONSISTENCY R

Bold type = Stand-alone heading.
Normal type = Cross-reference to stand-alone heading.

INDEX

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Absence of HMR Requirement

  • Obstacle test preempts only state rules that "pose an obstacle to fulfilling explicit provisions, not general policies, of HMTA." Massachusetts v. DOT, 93 F.3d 890 (D.C. Cir. 1996), reversing Civ. No. 93-1581 (HHG) (D.D.C. Apr. 7, 1995) and PD-1(R).

  • Fact that HMR requires escort vehicles only for RAM shipments shows intent not to require them for transport of other hazardous material. Chlorine Institute, Inc. v. Calif. Hwy. Patrol, Civ. S-92-396 (E.D.Cal., Sept. 16, 1992), aff'd, 29 F.3d 495 (9th Cir. 1994).

  • Absence of HMR regulation on a specific topic may reflect Federal determination that no regulation is needed on that topic. PD-6(R).

  • In the absence of evidence that DOT has weighed the competing considerations and decided that the transportation of a material should be free of all regulation, there is no preemption of state common law claims alleging the failure to properly package and warn about the dangers of a material not regulated under the HMR. Waering v. BASF Corp., No. 3:CV-99-0906 (M.D. Pa. May 23, 2001).

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Accident/Incident Reporting Requirements (Also see "covered subjects" discussion on pp. 1-2.)

  • State requirement to submit written report of each hazardous waste discharge during transportation is preempted because it is not substantively the same as Federal requirement. State may require a carrier to file a written incident report with RSPA, but it may not require the carrier to file a copy of the Federal form, or a separate incident report, directly with the State. PD-21(R); PD-18(R).

  • Requirements for immediate, oral accident/incident reports for emergency response purposes generally are consistent. IR-2; IR-3; #IR-28; #IR-31; #IR-32; National Tank Truck Carriers, Inc. v. Burke, 535 F. Supp. 509 (D.R.I. 1982), aff'd, 698 F.2d 559 (1st Cir. 1983); Union Pacific R.R. v. California Publ. Util. Comm'n, No. C-97-3660-TEH (N.D. Cal. Dec. 14, 1998); PD-18(R).

  • Incident reporting requirements concerning irradiated reactor fuel incidents are inconsistent because of redundancy and possible conflict with NRC rules incorporated into HMR. *IR-8, #IR-28; IR-32. However, such requirements may be consistent where they are clear and not in conflict with the NRC rule (incorporated into the HMR) requiring shippers to arrange with local law enforcement agencies for emergency response. #IR-31.

  • Requirements for written accident/incident reports are redundant with Federal requirements, tend to undercut compliance with them, and thus are inconsistent. IR-2; IR-3; IR-3(A); #IR-31; PD-18(R). See "covered subjects" discussion on pp. 1-2.

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Advance Notice - See "Notice Requirements" and "Delays of Transportation."

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Agency Interpretation

  • Local government need not obtain an RSPA inconsistency ruling before enforcing a local requirement. National Tank Truck Carriers, Inc. v. Burke, 608 F.2d 819, 821-2 (1st Cir. 1979); City of New York v. Ritter Transportation, Inc., 515 F. Supp. 663, 668 (S.D. N.Y. 1981), aff'd sub nom. National Tank Truck Carriers, Inc. v. City of New York, 677 F.2d 270 (2d Cir. 1982); Seaboard System R.R., Inc. v. Bankester, et al., 254 Ga. 455, 330 S.E. 2d 700, 705 (1985). Contra (based on doctrine of primary jurisdiction): Consolidated Rail Corp. v. City of Dover, 450 F. Supp. 966, 974 (D. Del. 1978).

  • "Because the DOT authored the HMR, its determination of what constitutes an obstacle to the accomplishment or execution of those regulations is deserving of substantial deference."

    • #Southern Pac. Transp. Co. v. Public Serv. Comm'n of Nevada, 909 F.2d 352, 359 (9th Cir. 1990).

  • DOT improperly issued an FR policy statement which had the effect of determining that Ohio's radioactive material prenotification requirement was inconsistent with the Federal requirement -- without affording Ohio the protections of the IR regulations. *State of Ohio v. U.S. Dept. of Transportation, No. C81-1394 (N.D. Ohio Oct. 5, 1989).

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Approval Requirements (Also see "Permit Requirements.")

  • Transportation approval requirements identical to Federal are not preempted. *IR-14; *IR-15.

  • Transportation approval requirements different from Federal are preempted. *IR-8; *IR-8(A); *IR-10; *IR-11; *IR-12; *IR-13, *IR-15; *IR-15(A); #IR-19; #IR-19(A).

  • Transportation approval requirements may not include preempted provisions: "A requirement for compliance with an inconsistent provision is itself inconsistent." *IR-8(A), 52 FR 13000, 13006.

  • Unfettered discretion to approve or disapprove transportation is preempted. *IR-8(A); *IR-15(A); *IR-18; #IR-20; accord *Northern States Power Co. v. Prairie Island Mdewakanton Sioux Indian Community, 991 F.2d 458 (8th Cir. 1993), affirming 781 F. Supp. 612 (D. Minn. 1991).

  • "In light of the virtually total occupation of the field of radioactive materials transportation by the HMTA and the HMR, State or local provisions requiring approval or authorizing conditions to be established for the transportation of radioactive materials (other than compliance with Federal regulations) constitute unauthorized prior restraints on shipments that are presumptively safe based on their compliance with Federal regulations and are inconsistent with the HMTA and the HMR." *IR-15(A), 52 FR 13062, 13063; quoted and followed, #IR-19.

Approvals - See "Exemptions and Approvals."

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"Authorized by Another Law of the United States"

  • A State requirement is not "otherwise authorized by Federal law" -- and thus not preempted under 49 U.S.C. § 5125 HMTA -- merely because it is not preempted by another Federal statute. *Colorado Pub. Utilities Comm'n v. Harmon, 951 F.2d 1571 (10th Cir. 1991), reversing No. 88-Z-1524 (D. Colo. 1989).

  • EPA approval of a State program imposing bonding or other additional requirements on hazardous waste carriers does not make those requirements "otherwise authorized by federal law." PD-1(R), reversed on other grounds, Massachusetts v. DOT, 93 F.3d 890 (D.C. Cir. 1996); PD-12(R); PD-25(R).

  • While RCRA allows State regulations that go beyond EPA requirements, those regulations are not part of the EPA-approved program, and are not insulated from Federal hazmat law preemption. PD-1(R), reversed on other grounds, Massachusetts v. DOT, 93 F.3d 890 (D.C. Cir. 1996); PD-2(R); PD-7(R); PD-12(R).

  • State requirements to implement basic provisions of SARA Title III or the Clean Air Act, § 112(r), or to implement, thru an EPA-approved program, EPA regulations under those statutes, are "authorized by another law of the United States," and therefore not preempted. PD-10(R), 60 FR 8790; PD-9(R), 60 FR 8781.

  • RCRA does not authorize a State or locality to impose additional requirements on the transportation of regulated medical waste. PD-23(RF).

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Bans on Hazardous Material Transportation - See "Prohibitions of Hazardous Material Transportation."

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Bonding Requirements - See "Insurance or Indemnification Requirements."

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Certification Requirements (Also see "Information/ Documentation Requirements," "Marking Requirements," "Packaging Design and Construction Requirements" and "Shipping Paper Requirements.")

  • Required markings on packagings (cargo tanks and portable tanks) to certify current registration and inspection are preempted since they are not substantively the same as the markings required by the HMR. PD-4(R).

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Civil Penalties - See "Penalties."

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Classification of Hazardous Material - See "covered subjects" discussion on pp. 1-2.

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"Commerce"

  • Transportation entirely on private industrial property is not transportation "in commerce" and therefore is not subject to the HMR. PD-10(R), 60 FR 8792; PD-9(R), 60 FR 8785.

  • Loading or unloading of hazardous materials incidental to the movement of those materials on a public roadway is a "safety aspect" of the transportation of hazardous materials in commerce and subject to the HMR, regardless of whether the loading or unloading takes place on private property. PD-24(R).

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Communication Requirements (Also see "Placarding and Other Hazard Warning Requirements.")

  • State requirement for communication equipment aboard motor vehicles transporting toxic material is preempted as an obstacle. Chlorine Institute, Inc. v. California Hwy. Patrol, 29 F.3d 495 (9th Cir. 1994).

  • Requirement that motor vehicles carrying LPG or natural gas use two-way radio communications is not preempted. IR-2.

  • RAM communications requirements which are different from, or authorized to be different from, Federal requirements are preempted. *IR-8; *IR-8(A).

  • City requirements that vehicles carrying hazardous waste have and monitor CB radio is not preempted except as to radioactive material. #IR-32.

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Confidentiality Requirement

Requirements to keep RAM shipment information confidential which are same as Federal are not preempted. *IR-8; *IR-15.

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Container Design and Certification Requirements - See "covered subjects" discussion on pp. 1-2 and "Packaging Design and Construction Requirements."

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Curfew - See "Time Restrictions."

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Definitions - See "Hazard Class and Hazardous Material Definitions."

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Delays in Transportation (Also see "Inspection Requirements," "Routing Requirements" and "Time Restrictions.")

  • RSPA encourages State and local governments to enforce valid requirements thru inspections. The time involved to conduct an inspection, including the time awaiting "one's turn" for an inspector already present, is not "unnecessary delay" and does not create an obstacle. The wait for an inspector to arrive from another location, however, is "unnecessary delay" and will cause an inspection program to be preempted. PD-4(R) (dec. on reconsid.), 60 FR 8803; PD-22(R).

  • State and local requirements likely to cause unreasonable transportation delays are preempted. IR-2; IR-3; IR-3(A); IR-6; IR-16; #IR-19; #IR-19(A); #IR-20; *IR-21; :*IR-21(A); IR-22; #IR-28; *IR-30; PD-22(R).

  • "The manifest purpose of the HMTA and the Hazardous Materials Regulations is safety in the transportation of hazardous materials. Delay in such transportation is incongruous with safe transportation." IR-2, 44 FR 75566, 75571; PD-22(R).

  • "The mere threat of delay may redirect commercial hazardous materials traffic into other jurisdictions that may not be aware of or prepared for a sudden, possibly permanent, change in traffic patterns." IR-3, 46 FR 18919, 18921. #IR-20; *IR-21(A); PD-22(R).

  • Local highway routing requirements for hazardous material through-traffic not based on complete safety analysis and consultations with all affected jurisdictions are inconsistent with § 177.853(a) of the HMR. IR-3; IR-3(A); IR-23.

  • "Since safety risks are 'inherent in the transportation of hazardous materials in commerce' [former 49 U.S.C. § 1801, now § 5101], an important aspect of transportation safety is that transit time be minimized. This precept has been incorporated in the HMR at 49 CFR § 177.853 [now § 177.800(d)], which directs highway shipments to proceed without unnecessary delay, and at 49 CFR § 174.14, which directs rail shipments to be expedited within a stated time frame." IR-6, 49 FR 760, 765; see also *IR-16, 50 FR 20872, 20879; quoted, #IR-19, 52 FR 24404, 24409.

  • Acute delays at State border inevitably resulting from State imposing documentary prerequisites upon non-domiciliaries for transport of hazardous material render those requirements inconsistent with 49 CFR § 177.853 [now § 177.800(d)]. #IR-26.

  • State fees for hazardous material transport not causing unnecessary transportation delays are not preempted. *IR-17; *IR-17(A); *IR-27; # New Hampshire Motor Transport Ass'n v. Flynn, 751 F.2d 43 (1st Cir. 1984); *Colorado Pub. Utilities Comm'n v. Harmon, No. 88-Z-1524 (D. Colo. 1989), rev'd on other grounds, 951 F.2d 1571 (10th Cir. 1991).

  • Time-consuming state permitting process with no definite decision date creates possibility of transportation delay and thus is preempted. #IR-19, #IR-19(A); *IR-21; *IR-21(A).

  • Two-hour advance approval requirement not shown to serve any purpose causes delay and is preempted. #IR-20; *IR-21; *IR-21(A).

  • City 20-car limitation on unloaded and loaded butane railcars at a site will cause delays and temporary storage elsewhere and thus is preempted. Consolidated Rail Corp. v. City of Bayonne, 724 F. Supp. 320 (D.N.J. 1989). "The obvious conclusion is that the more frequently hazardous material is handled during transportation, the greater the risk of mishap. Accordingly, these [HMR] provisions require that the material reach its destination as quickly as possible, with the least amount of handling and temporary storage." Ibid. at 330.

  • Additional switching, handling and delays of hazardous material caused by state requirement for caboose on certain trains carrying hazardous material create obstacle, and requirement is preempted. Missouri Pacific R.R. Co. v. Railroad Commission of Texas, 671 F. Supp. 466 (W.D. Tex. 1987), aff'd on other grounds, 850 F.2d 264 (5th Cir. 1988), cert. denied, 109 S. Ct. 794 (1989).

  • State statute providing three days for a permit issuance decision re each RAM shipment is preempted. *IR-21; *IR-21(A). Local ordinance requiring 45 days' prenotification of RAM shipments is preempted. *IR-30. Prohibition on permit applications more than one day prior to scheduled shipment also is preempted. *IR-21; *IR-21(A).

  • RAM requirements unnecessarily delaying transportation are preempted. *IR-8(A), *IR-18; *IR-18(A); *IR-21; *IR-21(A); #IR-26, *IR-30.

  • City tank truck regulations causing delays for cargo transfers, vehicle permit inspections and obtaining specifications, certifications and affidavits, are preempted. IR-22.

  • City truck regulations, requiring bulk gases to be transported around City unless no practical alternative route exists and the fire commission authorizes trip, promote safety, do not cause "unnecessary delay" under 49 CFR § 177.853(a) [now § 177.800 (d)], and thus are not preempted. City of New York v. Ritter Transp., Inc., 515 F. Supp. 663 (S.D. N.Y. 1981), aff'd, National Tank Truck Carriers, Inc. v. City of New York, 677 F.2d 270 (2d Cir. 1982).

  • "While states do have a role in effectuating the safe transportation of radioactive materials, it does not follow that they have unfettered discretion to take actions which have the effect of restricting or delaying transportation being conducted in compliance with Federal law." *IR-8(A), 52 FR 13000 at 13003; quoted in #IR-19, 52 FR 24404, 24409.

  • The time involved in undergoing an inspection, or waiting one's turn to be inspected when an inspector is present at the inspection location, is not unnecessary within the meaning of 49 CFR § 177.853(a) [now § 177.800 (d)] prohibiting unnecessary delays in the transportation of hazardous material. IR-17; IR-31; PD-4(R).

  • Delays waiting for a required inspection to be conducted are unnecessary when the inspector is not present at the inspection location but must come from another location. Thus, the inspection requirement as applied and enforced is preempted. PD-4(R).

  • An annual inspection requirement may not be applied to trucks based outside the borders of the inspecting jurisdiction unless the State or county is able to conduct the equivalent of a "spot" inspection upon the truck's arrival within the jurisdiction. PD-13(R)(dec. on reconsideration); PD-28(R); see also PD-4(R) (dec. on reconsid.); PD-22(R).

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Designation/Description of Hazardous Material - See "covered subjects" discussion on pp. 1-2.

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Documentation - See "Information/Documentation Requirements."

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Drivers' Licenses - See "Information/Documentation Requirements" and "Training Requirements."

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Effect of Preemption

  • A State, local or tribal rule, if applied and enforced without those elements that create an obstacle to accomplishing the purposes of the HMR, no longer is an obstacle and is not preempted under the obstacle test. (See Ray v. Atlantic Richfield, Inc., 435 U.S. 151 (1978)). PD-7(R) (dec. on reconsid.), 60 FR 10421.

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Effect of Requirements (Also see "Language of Requirements.")

  • ". . . it is the effect, both actual and potential, not the intent of state or local rules which determines their consistency with the HMTA and the HMR." IR-8(A), 52 FR 13000, 13003.

  • Even if a state bonding requirement on hazardous waste carriers is characterized as an "enforcement tool," the preemption inquiry looks not to the purpose of a non-Federal requirement, but to its effect. PD-1(R) (dec. on reconsid.), reversed, Massachusetts v. DOT, 93 F.3d 890 (D.C. Cir. 1996).

  • State's safety-related purpose not relevant under "covered subject" or "obstacle" test; preemption inquiry looks not to purpose of non-Federal requirement, but to its effect. PD-6(R).

Emergency Response

  • "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 preparation, when an accident does occur, response is, of necessity, a local responsibility." IR-2, 44 FR 75565, 75568.

  • Inadequacy of emergency response capabilities cannot provide basis for prohibiting transportation. *IR-18; *IR-18(A). Thus, non-Federal emergency response-related information requirements, such as a cleanup plan or vehicle equipment failure plan, cannot be used as a prerequisite to hazardous material transportation. #IR-19; *IR-27; #IR-28. *Colorado Pub. Utilities Comm'n v. Harmon, 951 F.2d 1571 (10th Cir. 1991), reversing No. 88-Z-1524 (D. Colo. 1989).

  • ". . . RSPA's emergency response information requirements for hazardous materials transportation, including the loading, unloading, or storage incidental to such transportation exclusively occupy that field. Therefore, state and local requirements not identical to these HMR provisions will cause confusion concerning the nature of such requirements, undermine compliance with the HMR requirements constitute obstacles to the implementation of these provisions, and thus be inconsistent and preempted." #IR-28.

  • Federal hazardous material transportation law preempts State requirements to provide emergency responders, at an incident scene, with information that the HMR does not require to be carried on the train, including the contents of rail cars that are not carrying, hazardous materials. Union Pac. R.R. v. California Pub. Util, Comm'n, No. C97-3660-TEH (N.D. Cal. Dec. 14, 1998).

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Emergency Requirements (Also see "Loading and Unloading.")

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Enforcement and Violations Provisions (Also see "Penalties.")

  • Enforcement and violations provisions (such as criminal or civil sanctions, private attorney general lawsuits, injunctions, cease-and-desist orders, cut-off of city services, etc.) are consistent with Federal statute and HMR if used to enforce consistent provisions. IR-3; #IR-31.

  • Enforcement and violations provisions (such as criminal or civil sanctions, private attorney general lawsuits, injunctions, cease-and-desist orders, cut-off of city services, etc.) are inconsistent with Federal hazmat law and HMR if used to enforce inconsistent provisions. *IR-18; *IR-18(A); *IR-30, #IR-31.

  • A state bonding requirement on hazardous waste carriers, as an "enforcement tool," is not preempted as an obstacle. Massachusetts v. DOT, 93 F.3d 890 (D.C. Cir. 1996) reversing PD-1(R) (dec. on reconsid.).

  • The absence of a "knowingly" requirement for imposition of a civil penalty is inconsistent because it promotes strict or absolute liability instead of liability for negligence. IR-31.

  • State civil penalty provision not explicitly imposing a "knowingly" standard is not preempted under the obstacle test if provision is "enforced and applied" with "knowingly" standard. Roeder Cartage Co. v. Ohio PUC, Case No. 90CVF-12-9532 (Ohio Ct. Common Pleas, Judgment Entry, Jan. 7, 1994).

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Equipment Requirements (Also see "covered subjects" discussion on pp. 1-2 and "Packaging Design and Construction Requirements.")

  • State requirements for communication equipment, a self-contained breathing apparatus and, in some cases, a sleeper berth aboard motor vehicles transporting toxic material are preempted as obstacles. Chlorine Institute, Inc. v. California Hwy. Patrol, 29 F.3d 495 (9th Cir. 1994).

  • Tank truck back-up alarm not part of hazardous material "package or container," and therefore back-up alarm requirement not considered under "covered subject" test. PD-5(R).

  • Truck back-up alarm required only for intrastate flammable material tank truck operators does not create delay and is not preempted under "obstacle" test. PD-5(R).

  • Cargo containment-related equipment requirements, including those vesting discretionary approval authority in State or local officials, are preempted. IR-2; *IR-8; *IR-8(A); *IR-15; IR-22; Nat'l Paint & Coatings Ass'n. et al v. City of New York, Index No. CV 84-4525 (ERK) (E.D. N.Y. Oct. 18, 1991).

  • "In summary, RSPA, OHMT and their predecessor agencies have established in a series of inconsistency rulings issued during the past decade the principle that the HMR provisions concerning hazardous materials transportation cargo containment systems, equipment, accessories and packagings, and the certification, marking, testing and permitting of same, have fully occupied that regulatory field. Those subjects are the exclusive province of the Federal Government. As a result, state or local requirements concerning those subjects detract from and create confusion concerning the Federal requirements, are inconsistent with the HMTA and the HMR, and, therefore, are preempted under section 112(a) of the HMTA. [now 49 U.S.C. § 5125(b)]. Similarly, these rulings have demonstrated RSPA's position that permitting systems and information or documentation requirements relating to or containing such requirements likewise are inconsistent with the HMTA and the HMR and, therefore, preempted." IR-22, 52 FR 46574, 46582.

  • "Headlights on" requirement is not preempted. IR-2; IR-3;#IR-32 (with reasonable notice); National Tank Truck Carriers, Inc. v. Burke, 535 F. Supp. 509 (D.R.I. 1982), aff'd, 698 F.2d 559 (1st Cir. 1983); * Colorado Pub. Utilities Comm'n v. Harmon, No. 88-Z-1524 (D. Colo. 1989), rev'd on other grounds, 951 F.2d 1571 (10th Cir. 1991).

  • RAM transportation requirement for mobile telephone equipped with multiple channels is not preempted. * Colorado Pub. Utilities Comm'n v. Harmon, No. 88-Z-1524 (D. Colo. 1989), rev'd on other grounds, 951 F.2d 1571 (10th Cir. 1991).

  • State requirement for caboose on certain trains carrying hazardous material would cause additional switching, handling and delays of hazardous material and thus is preempted. Missouri Pacific RR Co. v. Railroad Commission of Texas, supra.

  • Requirement for illuminated rear bumper signs conflicts with DOT lighting regulations and would divert attention from DOT placards and thus is preempted. IR-2.

  • Requirement for frangible shank-type lock on tank trailers carrying LNG or LPG is preempted since DOT comprehensively regulates cargo tank containment. IR-2.

  • City 20-car limitation on unloaded or loaded butane railcars at a site is preempted. Consolidated Rail Corp. v. City of Bayonne, 724 F. Supp. 320 (D. N.J. 1989).

  • "A state or local rule which grants an official discretionary authority to set equipment requirements for carriers engaged in interstate commerce impedes the Congressional purposes of increased safety and regulatory uniformity underlying the HMTA." IR-8(A), 52 FR 13000, 13003.

  • Vehicle equipment requirements which might conflict with those provisions of the Federal Motor Carrier Safety Regulations (FMCSR), 49 CFR Parts 390-397, which are incorporated in the HMR only by 49 CFR § 177.804, must only meet the "dual compliance" test, not the "obstacle" test. IR-3; 43 FR 4858 (Feb. 6, 1978); National Paint & Coatings Ass'n, Inc. v. City of New York, No. CV-4525 (ERK) (E.D. N.Y. 1985); 52 FR 18668-9 (May 18, 1987); IR-22. However, those FMCSR requirements specifically incorporated into the HMR by other HMR regulations must meet both tests. IR-22.

  • Waiver of preemption denied with regard to tank truck design and capacity requirements for flammable and combustible liquids and gases, because they do not provide an equal level or greater level of protection to the public as the Federal requirements, and they unreasonably burden commerce. In this specific case, there is no evidence that local design requirements and capacity limits increase the level of safety by a sufficient amount to offset an expected reduction in deaths, injuries, and property damage, when larger-capacity trucks allow fewer trips. WPD-1.

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Escort Requirements

  • RAM transportation front and rear escort requirements identical to DOT/NRC standards, *IR-14, and notice requirements facilitating escorts under the DOT/NRC requirements, *IR-17, are not preempted.

  • Requirements for additional or special escorts re RAM transportation not required by DOT/NRC regulations are preempted, *IR-11; *IR-13; *IR-15(A); *IR-18; *IR-18(A); *IR-21.

  • Requirements for carriers to delay for escorts re RAM transportation other than those in NRC standards are preempted. *IR-15.

  • Escort requirements linked to inconsistent equipment requirements are preempted. IR-22; IR-23.

  • Fact that HMR requires escort vehicles only for RAM shipments shows intent not to require them for transport of other hazardous material. State requirement for escort vehicle for chlorine and oleum highway transport is preempted as interfering with Federal uniformity in unsafe and burdensome manner. Chlorine Institute, Inc. v. Calif. Hwy. Patrol, Civ. S-92-396 (E.D.Cal., Sept. 16, 1992), aff'd, 29 F.3d 495 (9th Cir. 1994).

  • Requirements for explosives carrier to notify Fire Prevention Bureau 24 hours in advance of arrival in the city and, if more than 250 pounds of explosives are being transported, have a police escort are preempted because of the potential for delay in transportation. PD-20(RF).

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Exemptions and Approvals

  • "A state must implicitly or explicitly recognize the validity of OHMT's exemptions and approvals; a state may not establish its own exemptions and approvals program." #IR-31, 55 FR 25572, 25581; see also PD-9(R), 60 FR 8789.

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Federal Motor Carrier Safety Regulations (FMCSR) (Also see "Insurance and Indemnification Requirements.")

  • Those parts of the FMCSR (49 CFR Parts 390-397 (excluding §§ 397.3 and 397.9) incorporated into the HMR by 49 CFR § 177.804 have preemptive effect only under the "dual compliance" standard, as specifically provided in § 390.9. IR-2; IR-22; IR-23; IR-32.

  • Those parts of the FMCSR added since 1978, including the financial responsibility requirements in Part 387, have not been incorporated into the HMR and have no direct preemptive effect under 49 U.S.C. § 5125. IR-25; PD-1(R), reversed on other grounds, Massachusetts v. DOT, No. 95-5175 (D.C. Cir. Aug. 27, 1996).

  • 49 CFR Part 383 has not been incorporated into the HMR, and therefore cannot be the basis for a determination of preemption. PD-7(R).

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Federal Requirements (Also see "Standing," "Authorized by Another Law of the United States")

  • Only conflicts with Federal requirements under 49 U.S.C. §§ 5101-5127 and the HMR are cognizable in inconsistency proceedings (not Commerce Clause issues or preemption issues under other Federal statutes or regulations). IR-17(A).

  • Absence of a Federal regulation addressing the same subject as a challenged State or local requirement is not determinative of whether that requirement is preempted. *IR-17(A).

  • Requiring compliance with Federal requirements is not preempted. IR-3; *IR-7.

  • State or local requirements identical to Federal ones are not preempted. *IR-8.

  • Adequacy of Federal requirements is irrelevant. *IR-8(A).

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Fee Requirements

  • A fee on hazardous materials transportation that fails the fairness or "used for" test in 49 U.S.C. § 5125(g)(1) creates an obstacle to carrying out the Federal hazardous materials transportation law and thus fails the "obstacle" test in 49 U.S.C. § 5125(a)(2); PD-18(R); PD-22(R).

  • Annual State remedial action fee that transporter must pay to pick up or deliver hazardous waste within the State is preempted as not "fair" when (1) it is the same for both interstate and intrastate transporters and has no approximation to the transporter's use of roads or other facilities within the State and (2) genuine administrative burdens do not prevent the application of a more finely graduated user fee. State annual remedial action fee on hazardous waste transporters is also preempted when commingled in fund primarily used to clean up "Superfund" sites and there is no evidence that State is actually spending fees collected from transporters for purposes related to transporting hazardous material. PD-21(R); PD-18(R).

  • Fees on hazardous material transportation must be fair and used for purposes related to hazardous material transportation, including enforcement and planning, development and maintenance of emergency response capability. 49 U.S.C. § 5125(g). PD-9(R), 60 FR 8784; PD-22(R).

  • Dormant commerce clause test under Evansville, 92 S.Ct. 1349 (1972), is to be used to determine whether a fee is fair under 49 U.S.C. § 5125(g). Under that test, the fee is fair if it is: (a) based on fair approximation of use of state facilities; (b) not excessive in relation to benefits conferred; (c) does not discriminate vs. interstate commerce. American Trucking Ass'ns, Inc. v. New Hampshire, No. 92-E-604, N.H. Superior Ct., Merrimack Cty. (May 16, 1994) (hazardous waste transporter fee; order denying summary judgment); American Trucking Ass'ns, Inc. v. Flynn, No. 89-E-405, N.H. Superior Ct., Merrimack Cty. (May 6, 1994) (flat fee for hazardous material transporters; order denying summary judgment); PD-22(R).

  • Flat hazardous material transporter fee that provides credit for in-state transporters does not violate Commerce Clause. American Trucking Ass'ns, Inc. v. Wisconsin, No. 93-CV-3708, Wisc. Cir. Ct., Branch 14, Dane Cty. (July 28, 1994).

  • Standard for whether hazardous waste transporter fee is fair under 49 U.S.C. § 5125(g) incorporates dormant commerce clause test: (1) does fee discriminate against out-of-state transporters? (2) does fee unreasonably burden commerce? American Trucking Ass'ns, Inc. v. New Jersey, No. 011562-92, New Jersey Tax Ct. (July 8, 1994) (order denying summary judgment).

  • Reasonable fees to fund non-preempted activities are not preempted. *IR-17; *IR-17(A); *IR-27; #New Hampshire Motor Transport Ass'n v. Flynn, 751 F.2d 43 (1st Cir. 1984); * Colorado Pub. Utilities Comm'n v. Harmon, No. 88-Z-1524 (D. Colo. 1989), rev'd on other grounds, 951 F.2d 1571 (10th Cir. 1991).

  • A fee levied on non-transportation activity is not preempted. PD-9(R), 60 FR 8784.

  • Fees levied in connection with the transportation of hazardous materials must be used for a purpose related to the transportation of hazardous materials. Fees that are not used for a purposed related to hazardous materials transportation are preempted. PD-9(R); PD-18(R); PD-21(R), PD-22(R).

  • While Federal hazmat law does not prohibit a State from directing the deposit of fees into the State's general fund, Federal hazmat law does require that the funds be used for hazardous materials transportation purposes. PD-22(R).

  • A fee on tank car unloading activities that is not used for purposes related to hazardous material transportation is preempted. PD-9(R), 60 FR 8789.

  • Fees which are unreasonably high or are related to inconsistent activities are preempted. *IR-11; *IR-13; *IR-15; *IR-18(A); #IR-19; *IR-27; *IR-30; #New Hampshire Motor Transport Ass'n v. Flynn, supra.

  • State's $1,000 per cask fee for spent nuclear fuel transportation to fund inspection, enforcement, State escorts and emergency response, not related to inconsistent provisions, and not causing transportation delays or diversions is not preempted. *IR-17; *IR-17(A). Similar State RAM shipment fees are not preempted. *IR-27.

  • State's $25/year or $15/trip fee for hazardous material transportation to fund transportation and environmental programs and related to a minimal delay licensing system was not preempted by the Federal statute. New Hampshire Motor Transport Ass'ns, Inc. v. Flynn, supra. However, the State was preliminarily enjoined from depositing the proceeds from that fee into the State treasury, and ordered to place these monies in an escrow account pending final disposition of court case challenging validity of the fees under the Commerce Clause, because plaintiffs established the likelihood of their success on the merits. American Trucking Ass'ns, Inc. et al. v. New Hampshire, No. 89-E-00405-B (Sup. Ct. NH 1989).

  • State's $1,000 per shipment fee for spent nuclear fuel transportation apparently to fund preempted state monitoring activities is preempted. *IR-15. State's RAM permit fee is preempted. *IR-27.

  • State's $500 annual permit fee and $200 shipment fee for RAM transportation are not preempted. *Colorado Pub. Utilities Comm'n v. Harmon, No. 88-Z-1524 (D. Colo. 1989), rev'd on other grounds, 951 F.2d 1571 (10th Cir. 1991).

  • State's hazardous material license fee of $25 per vehicle or $15 per trip per vehicle found to be a "flat tax", failed Commerce clause "internal consistency" test, and therefore was preempted as an undue burden on interstate commerce. American Trucking Ass'ns, Inc. v. Secretary of State, 595 A.2d 1014 (Me. 1991). A State's $200 annual fee for each vehicle transporting hazardous waste was preempted on similar grounds. American Trucking Ass'ns, Inc. v. Secretary of Administration, 613 N.E.2d 95 (Mass. 1993).

  • The imposition and use of an "equitable fee" as part of a City's permit and inspection system for purposes related to the transportation of hazardous material is not preempted. WPD-1.

  • Per vehicle fees imposed on transporters who pick up or deliver hazardous waste within the State are preempted under the Commerce Clause, because these fees are not fairly apportioned, discriminate in favor of intrastate commerce, and are unrelated to services provided by the State. A "fair" fee, as set forth in 49 U.S.C. § 5125(g)(1), cannot include fees which are discriminatory or malapportioned. American Trucking Ass'ns, Inc. v. New Jersey, No. 011562-92 (NJ Tax Court, Morris Cty., Mar. 11, 1998).

  • Permit fee that is related to the cost of performing a required vehicle inspection, and does not cover all costs of permit administration and hazardous materials enforcement is not preempted as "unfair" or used for purposes that are not related to transporting hazardous material. PR-13(R).

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Findings

  • Findings regarding hazardous material transportation are not "requirements" subject to preemption under the Federal statute. *IR-18.

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Forms - See "Motor Carrier Registration and Permitting Forms."

Handling of Hazardous Material (Also see "covered subjects" discussion on pp. 1-2.)

  • Prohibition against transporting blasting caps on the same motor vehicle with more than 5,000 pounds of other commercial explosives is preempted when interpreted and applied to a vehicle on a public road or during activities on private property that are incidental to the movement of property and involve a safety aspect of transportation on a public road. PD-24(R).

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Hazard Class and Hazardous Material Definitions (Also see "covered subjects" discussion on pp. 1-2.)

  • In order to be preempted under the Federal hazardous materials transportation law, definitions as applied and enforced, must be related to the areas regulated by DOT. PD-18(R).

  • Non-Federal hazardous materials requirements that use preempted definitions are also preempted. PD-18(R).

  • State and local hazard class and hazardous material definitions differing from those in the HMR and used to regulate hazardous material transportation are preempted because the Federal role is exclusive. *IR-18; *IR-18(A); #IR-19; #IR-19(A); #IR-20; *IR-21; #IR-26; #IR-28; IR-29; *IR-30; #IR-31; #IR-32; Missouri Pacific R.R. Co. v. Railroad Commission of Texas, supra; PD-18(R).

  • State and local hazardous material definitions and classifications which result in regulating the transportation, including loading, unloading or storage incidental thereto, of more, fewer or different hazardous material than the HMR are obstacles to uniformity in transportation regulation and thus are preempted. IR-5; IR-6; #IR-28; IR-29; #IR-31; #IR-32; PD-18(R).

  • Application of state requirements to selected DOT hazardous material can contribute to the overall inconsistency of a series of interrelated regulations. #IR-19.

  • "The key to hazardous materials transportation safety is precise communication of risk. The proliferation of differing State and local systems of hazard classification is antithetical to a uniform, comprehensive system of hazardous materials transportation safety regulations." IR-6, 48 FR 760, 764.

  • "State government or political subdivisions may not regulate--let alone prohibit--the transportation of radioactive or other hazardous materials specifically excepted from regulation under the HMTA or the HMR. The determination of what hazardous materials may or may not be regulated in the transportation field is the essence of DOT's exclusive authority to define and classify hazardous materials." #IR-20, 52 FR 24396, 24401.

  • "Radioactive Material" definitions different from HMR definitions are preempted. *IR-8; *IR-12, *IR-15; *IR-16; *IR-18; *IR-21; *IR-30; *Northern States Power Co. v. Prairie Island Mdewakanton Sioux Indian Community, 991 F.2d 458 (8th Cir. 1993), affirming 781 F. Supp. 612 (D. Minn. 1991) (enjoining enforcement of ordinance). But essentially identical definitions are not preempted. *IR-18.

  • "If every jurisdiction were to assign additional requirements on the basis of independently created and variously named subgroups of radioactive materials, the resulting confusion of regulatory requirements would lead directly to the increased likelihood of reduced compliance with the HMR and subsequent decrease in public safety." *IR-12, 49 FR 46650, 46651.

  • City definitions of RAM and flammable material differed from Federal definitions and thus were preempted and their use enjoined. #Union Pac. R.R. Co. v. City of Las Vegas, No. LV-85-932 HDM (D. Nev. 1986).

  • City definition of "hazardous waste" consisting of ambiguous and subjective standards and including non-HMR material is preempted. #IR-32.

  • State law is preempted when it includes as "hazardous materials" additional materials defined in differing terms from the definitions and classifications in the HMR. Union Pacific R.R. v. California Publ. Util. Comm'n, No. C-97-3660-TEH (N.D. Cal. June 18, 1998), decision on reconsideration on other issues, (Dec. 14, 1998); PD-18(R).

  • A non-Federal requirement is not preempted simply because it does not apply to all hazard classes and all materials governed by the HMR, but a State may need to justify its decision to single out one hazardous material for different types of traffic control than hazardous materials generally. PD-13(R)(dec. on reconsid.);IR-15 (A).

  • Borough definitions of "infectious waste," "hospital waste," and "dangerous waste" are preempted when used to create a scheme for designating and classifying hazardous material that is not substantively the same as in the HMR. In addition, "dangerous" is preempted when used and defined in a manner that is substantively different from the use of the word "dangerous" in the HMR. PD-23(RF).

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Hazard Warning Requirements - See "Placarding and Other Hazard Warning Requirements."

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Hazardous Substances and Wastes (Also see "covered subjects" discussion on pp. 1-2.)

  • Dicta in footnotes indicate that State's hazardous substances transportation regulations appeared to be valid under the Federal hazmat law because they regulated only transportation from points in Maryland [but decision overlooked RSPA's 1980 amendment of 49 CFR § 171.1 applying HMR to intrastate transportation of hazardous substances and wastes]. Browning-Ferris, Inc. v. Anne Arundel County, Maryland, 292 Md. 136, 438 A.2d 269, 274 (1981).

  • City requirement that driver transporting hazardous waste carry a hazardous waste manifest is same as HMR and is not preempted. #IR-32.

  • City definition of hazardous waste consisting of ambiguous and subjective standards and including non-HMR material is preempted. #IR-32.

  • City definition of hazardous gases different from that in HMR does not afford as much protection to the public and unreasonably burdens commerce, and therefore waiver of preemption is denied. WPD-1.

  • A state bonding requirements for a carrier of hazardous waste to pick up or deliver within the State is not preempted under the "obstacle" test. Massachusetts v. DOT, No. 95-5175 (D.C. Cir. Aug. 27, 1996), reversing PD-1(R).

  • Hazardous waste manifest is a "covered subject." PD-2(R); PD-12(R); PD-18(R); PD-232(RF).

  • State's hazardous waste manifest requiring, contrary to DOT/EPA Uniform Hazardous Waste Manifest, (1) use of second manifest when there is insufficient room on first manifest and (2) rounding of total hazardous waste quantity to nearest whole number, is preempted as not "substantively the same." PD-2(R).

  • State requirement to mark hazardous-waste-hauling trucks with non-HMR markings is preempted under "covered subject" test; requirement to mark trucks hauling waste not designated as hazardous material with non-HMR markings sufficiently similar to HMR markings to cause confusion is preempted under the "obstacle" test. PD-6(R).

  • Federal hazardous materials transportation law preempts State requirements which restrict hazardous waste transporters' activities at transfer facilities by (1) prohibiting the repackaging of hazardous wastes; and (2) requiring an indication on the manifest of a transfer of hazardous wastes between vehicles. (PD-12(R).

  • RSPA makes no determination with regard to a requirement for secondary containment at a transfer facility where hazardous wastes are stored or transferred, when there is insufficient information whether, as applied and enforced, this requirement is an obstacle to accomplishing and carrying out Federal hazardous material transportation law and the HMR. PD-12(R).

  • Dormant commerce clause test under Evansville, 92 S.Ct. 1349 (1972), is to be used to determine whether a fee is fair under 49 U.S.C. § 5125(g). Under that test, the fee is fair if it is: (a) based on fair approximation of use of state facilities; (b) not excessive in relation to benefits conferred; (c) does not discriminate vs. interstate commerce. American Trucking Ass'ns, Inc. v. New Hampshire, No. 92-E-604, N.H. Superior Ct., Merrimack Cty. (May 16, 1994) (hazardous waste transporter fee; order denying summary judgment).

  • Requirement prohibiting a registered transporter from allowing non-employees to operate the transporter's vehicles within the State is an obstacle to accomplishing and carrying out Federal hazardous material transportation law and the HMR which allow motor carriers to use independent owner-operators for the transportation of hazardous waste. Wills Trucking, Inc. v. Shinn (Comm'r DEP), Civ. 97-2131 (GEB) (D.N.J. Jan. 28, 1998).

  • Per vehicle fees imposed on transporters who pick up or deliver hazardous waste within the State are preempted under the Commerce Clause, because these fees are not fairly apportioned, discriminate in favor of intrastate commerce, and are unrelated to services provided by the State. A "fair" fee, as set forth in 49 U.S.C. § 5125(g)(1), cannot include fees which are discriminatory or malapportioned. American Trucking Ass'ns, Inc. v. New Jersey, No. 011562-92 (NJ Tax Court, Morris Cty., Mar. 11, 1998).

  • State requirement to submit written report of each hazardous waste discharge during transportation is preempted because it is not substantively the same as Federal requirement. State may require a carrier to file a written incident report with RSPA, but it may not require the carrier to file a copy of the Federal form, or a separate incident report, directly with the State. PD-21(R).

  • Annual State remedial action fee that transporter must pay to pick up or deliver hazardous waste within the State is preempted as not "fair" when (1) it is the same for both interstate and intrastate transporters and has no approximation to the transporter's use of roads or other facilities within the State and (2) genuine administrative burdens do not prevent the application of a more finely graduated user fee. State annual remedial action fee on hazardous waste transporters is also preempted when commingled in fund primarily used to clean up "Superfund" sites and there is no evidence that State is actually spending fees collected from transporters for purposes related to transporting hazardous material. PD-21(R).

  • Regulated medical wastes are not hazardous wastes. PD-23(RF).

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Incident Reporting - See "Accident/Incident Reporting Requirements."

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Incorporation by Reference

  • NRC regulations incorporated by reference in HMR provide basis for consistency comparison with State and local requirements. *IR-8(A).

  • DOT encourages State adoption or incorporation by reference of the HMR as State law - and enforcement thereof. *IR-17; #IR-19; #IR-31; WPD-1.

  • State and local requirements which incorporate by reference specific superseded Federal regulations are inconsistent. *IR-8; *IR-8(A); *IR-18. However, State and local governments may incorporate by reference specific CFR volumes of the HMR for a reasonable time (up to two years) after their publication, although a later-published HMR rule would control over an inconsistent state or local requirement. #IR-19.

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Indemnification Requirements - See "Insurance or Indemnification Requirements."

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Indian Tribe Requirements

  • Tribal ordinance is preempted by Federal statute; therefore, tribe lacked power to enact ordinance, and consequently cannot invoke sovereign immunity against declaratory injunction. Further, plain language of the Federal hazmat law expressly waives tribal sovereign immunity for preemption purposes. *Northern States Power Co. v. Prairie Island Mdewakanton Sioux Indian Community, 991 F.2d 458 (8th Cir. 1993), affirming 781 F. Supp. 612 (D. Minn. 1991). Tribe was permanently enjoined from enacting ordinance in conflict with the Federal hazmat law. Ibid., Civ. No. 4-93-747 (D. Minn. March 18, 1994).

  • Federal hazmat law waives sovereign immunity of Indian tribes, and thereby allows tribes to be sued in Federal court, regarding preemption of tribal requirements. Public Serv. Co. of Colorado v. Shoshone-Bannock Tribes, 30 F.3rd 1203, 1206 (9th Cir. 1994).

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Information/Documentation Requirements (Also see "covered subjects" discussion at pp. 1-2 and "Shipping Paper Requirements," "Emergency Response," "Notice Requirements," and "Placarding and Other Warning Requirements.")

  • Requirements for information or documentation in excess of Federal requirements create potential delay, constitute an obstacle to execution of the Federal hazmat law and the HMR, and thus are preempted. IR-2; IR-6; *IR-8; *IR-8(A); *IR-15; *IR-15(A); *IR-18; *IR-18(A); #IR-19; #IR-19(A); *IR-21; #IR-26; *IR-27; #IR-28; *IR-30; *Chem-Nuclear Systems, Inc. v. City of Missoula, No. 80-18-M (D. Mont. 1984); #Southern Pac. Transp. Co. v. Public Serv. Comm'n of Nevada, 909 F.2d 352 (9th Cir. 1990), reversing No. CV-N-86-444-BRT (D. Nev. 1988); *Colorado Pub. Utilities Comm'n v. Harmon, 951 F.2d 1571 (10th Cir. 1991), reversing No. 88-Z-1524 (D. Colo. 1989); PD-18(R). There is no de minimis exception to the "obstacle" test because thousands of jurisdictions could impose de minimis information requirements. *IR-8(A); PD-18(R).

  • Because the HMR do not require a governmental body to certify hazmat training, the requirement to obtain a certificate of training from the State is "more strict" than the HMR, within the meaning of 49 CFR 172.701. PD-7(R), 60 FR 10420; PD-22(R) (requirement to obtain an identification card as proof of training is preempted).

  • "In summary, the HMTA and HMR provide sufficient information and documentation requirements for the safe transportation of hazardous materials; state and local requirements in excess of them constitute obstacles to implementation of the HMTA and HMR and thus are inconsistent with them." #IR-19, 52 FR 24404 at 24408. Quoted in #IR-28.

  • Preliminary injunction was granted against City requirements to have decal and carry copy of permit. American Trucking Ass'ns, Inc. v. City of Boston, No. 81-628-MA, Fed. Carr. Cas. ¶82,938 (CCH) (D. Mass. 1981).

  • Emergency response-related information requirements cannot be used as a prerequisite to hazardous material transportation. #IR-19; *IR-27.

  • State may require, as prerequisite to motor vehicle transport of hazardous material, a driver's license or documentary evidence of hazardous material training from its own domiciliaries but not from non-domiciliaries-- except, on or after April 1, 1992, from non-domiciliaries not having hazardous material endorsements on their commercial drivers' licenses. #IR-26; #IR-31; #IR-32.

  • "DOT and NRC have determined what information and documentation requirements are needed for the safe transportation of radioactive materials, and state and local requirements going beyond them create confusion, impose burdens on transporters, are obstacles to the accomplishment of the HMTA's objectives, and thus are inconsistent." *IR-8(A), 52 FR 13000, 13004; quoted in *IR-27; quoted and applied to non-RAM in #IR-19, 52 FR 24404, 24408; see also *IR-15(A).

  • "No matter what the form, any state or local requirement that asks for an additional piece of paper that supplies the same information as is required to be on the DOT shipping paper would be inconsistent with the requirements contained in the Hazardous Materials Regulations." IR-2, 44 FR 75566, 75571. Requirements for multiple submissions of same information are inconsistent. *IR-8(A).

  • Requirements for RAM transportation route plans or other shipment-specific documentation or information are preempted. *IR-21. Also preempted are requirements for RAM shipment information on possible alternate routes, proposed means of conveyance, estimated date and time of departure, emergency response or recovery plans, attestations re safety inspections, certification of compliance with laws and regulations (latter being same as required on DOT shipping papers), telephone numbers, inspection reports, state permits, proof of driver training, proof of insurance, and equipment replacement or repair plans. *IR-8(A); *IR-15; *IR-15(A); *IR-27; *Colorado Pub. Utilities Comm'n v. Harmon, 951 F.2d 1571 (10th Cir. 1991), reversing No. 88-Z-1524 (D. Colo. 1989); PD-18(R).

  • RAM information requirements identical to NRC's are not preempted, but requirement for submission to state of NRC approvals and licenses is preempted. *IR-8; *IR-8(A); *IR-15; *IR-15(A).

  • Requirement to carry proof of insurance is preempted. *IR-27; #IR-32; *Colorado Pub. Utilities Comm'n v. Harmon, 951 F.2d (10th Cir. 1991), reversing No. 88-Z-1524 (D. Colo. 1989).

  • Mere requirement in permit application of some information required on DOT shipping papers may not require preemption. Dicta 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).

  • "The Secretary's regulations contain hundreds of information and documentation requirements, all of which have been established by the Secretary to ensure the health and safety of citizens in every jurisdiction. Congress specifically found that additional documentation and information requirements in one jurisdiction create 'unreasonable hazards in other jurisdictions' and could confound 'shippers and carriers which attempt to comply with multiple and conflicting regulations.' [Pub. L. 101-615 § 2, formerly 49 U.S.C. app. § 1801]. Colorado's regulations clearly exceed the information and documentation requirements set forth in the Secretary of Transportation's regulations governing the transportation of radioactive materials. The enactment of separate information and documentation requirements in even a few of the thousands of local jurisdictions across the country would lead to the multiplicitous regulations Congress sought to avoid by enacting the HMTUSA. Because Colorado's regulation forces transporters of hazardous materials to generate and maintain additional documentation and information, we conclude that it is likely to confound shippers and carriers and to increase the potential for hazards in other jurisdictions. Colorado's regulations simply do not further the Federal purpose of promoting safety through uniformity. Therefore, we hold that NT-8 is preempted. * * * In addition to obstructing Congress' objective that safety be achieved through uniformity, the expense of burdensome documentation and information requirements also is contrary to Congress' intent that regulation of hazardous materials transportation be as cost-effective as possible." *Colorado Pub. Utilities Comm'n v. Harmon, 951 F.2d 1571 (10th Cir. 1991), reversing No. 88-Z-1524 (D. Colo. 1989).

  • Lengthy pre-notification requirement, license requirement and unfettered discretion to require information before issuing license for single-trip RAM transport causes license requirement to be preempted as "obstacle." *Northern States Power Co. v. Prairie Island Mdewakanton Sioux Indian Community, 991 F.2d 458 (8th Cir. 1993), affirming 781 F. Supp. 612 (D. Minn. 1991).

  • Federal hazardous material transportation law preempts State requirements to provide emergency responders, at an incident scene, with information that the HMR does not require to be carried on the train, including the contents of rail cars that are not carrying hazardous materials. Union Pac. R.R. v. California Pub. Util. Comm'n. No. C97-3660-TEH (N.D.Cal. Dec. 14, 1998).

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Inspection Requirements (Also see "Monitoring of Shipments," "Permit Requirements," and "Registration Requirements.")

  • Inspection requirements relating to Federal and non-preempted requirements are encouraged by RSPA and are not preempted. IR-2; *IR-8; *IR-15; *IR-17; #IR-20; *IR-27; #IR-31; *Colorado Pub. Utilities Comm'n v. Harmon, No. 88-Z-1524 (D. Colo. 1989), rev'd on other grounds, 951 F.2d 1571 (10th Cir. 1991).

  • Inspection requirements relating to inconsistent requirements are preempted. #IR-20; *IR-21; *IR-21(A); *IR-27, *IR-30; #IR-31.

  • State may not require carrier to retain inspection report in vehicle. Such an additional documentation requirement could create confusion and increase hazards. *Colorado Pub. Utilities Comm'n v. Harmon, 951 F.2d 1571 (10th Cir. 1991), reversing No. 88-Z-1524 (D. Colo. 1989).

  • Annual inspections for tank trucks hauling flammable and combustible liquids and compressed gasses, to determine the vehicles' general safety levels, are not preempted. However, waiver of preemption was denied with respect to inspections to enforce vehicles' conformity to local design requirements (truck size and tank design and capacity). WPD-1.

  • The time involved in undergoing an inspection, or waiting one's turn to be inspected when an inspector is present at the inspection location, is not unnecessary within the meaning of 49 CFR 177.853(a) [now § 177.800(d)] prohibiting unnecessary delays in the transportation of hazardous material. IR-17; IR-31; PD-4(R); see also PD-4(R) (dec. on reconsid.); PD-22(R).

  • Requirement of annual inspection of tanks carrying hazardous material is preempted when the inspection cannot be carried out without unnecessary delay because inspectors are not available at the inspection location but must come to the point of inspection from another location. PD-4(R); see also PD-4(R) (dec. on reconsid.); *IR-15.

  • A State or county may require an annual inspection of trucks based within its borders, as a condition for issuance of an annual permit, because the carrier should be able to plan and schedule the required inspection without any interruption of the transportation of hazardous material. However, an annual inspection requirement may not be applied to trucks based outside the borders of the inspecting jurisdiction unless the State or county is able to conduct the equivalent of a "spot" inspection upon the truck's arrival within the jurisdiction. PD-13(R) (dec. on reconsideration); PD-18(R); see also PD-4 (R) (dec. on reconsideration); PD-22(R).

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Insurance or Indemnification Requirements

  • Hazardous material transportation indemnification, bonding or insurance requirements differing from Federal requirements are preempted. *IR-10; *IR-11; *IR-15; *IR-15(A); *IR-18; *IR-18(A); #IR-25; #IR-31. (See also *IR-13; *IR-14.) State may not require proof of insurance meeting the Federal requirements. *Colorado Pub. Utilities Comm'n v. Harmon, 951 F.2d 1571 (10th Cir. 1991), reversing No. 88-Z-1524 (D. Colo. 1989).

  • The absence of a bonding, insurance, or indemnity requirement in the HMR "is a reflection of OHMT's determination that no such requirement is necessary and that any such requirement imposed at the state or local level is inconsistent with the HMR." #IR-25, 54 FR 16308, 16311. "[N]o such requirement is necessary--particularly because 49 CFR §§ 387.7 and 387.9 already require insurance or surety bonds of between $1,000,000 and $5,000,000 for motor carriers transporting hazardous wastes, hazardous substances and other hazardous materials." Ibid.

  • "The indemnification level established through the HMR, coupled with the indemnification provisions of the Price-Anderson Act (42 U.S.C. § 2210), provides the exclusive standard for radioactive materials transportation indemnification. They have totally occupied that field, and any state or local bond, insurance or indemnification requirement not identical to the HMR requirement is an obstacle to the accomplishment of the objectives of the HMTA and the HMR." *IR-15(A), 52 FR 13062, 13063.

  • Requirement to carry proof of insurance is inconsistent. #IR-32.

  • State bonding requirements do not fail the "dual compliance" test; federal and state financial responsibility requirements may both be met. PD-1(R), reversed on other grounds, Massachusetts v. DOT, No. 95-5175 (D.C. Cir. Aug. 27, 1996).

  • A state bonding requirement for a carrier of hazardous waste to pick up or deliver within the State is not preempted under "obstacle" test. Massachusetts v. DOT, No. 95-5175 (D.C. Cir. Aug. 27, 1996), reversing PD-1(R).

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Jurisdiction

  • To the extent that RSPA (under the HMR) and EPA (under SARA Title III and the Clean Air Act § 112(r)) both regulate consignee tank car unloading, RSPA focuses on the physical aspects of unloading, while EPA focuses on accident prevention planning and risk management. These areas of regulation do not necessarily conflict, and may coexist. PD-8(R), 60 FR 8780.

  • Under SARA Title III, a material is stored "incident to transportation" if it is under active shipping papers and has not yet reached the ultimate consignee. 40 CFR 355.40(b)(4). A "stationary source" under Clean Air Act §112(r) includes a transportation container that is no longer under active shipping papers or that is connected to equipment at the stationary source for temporary storage, loading or unloading. 59 FR 4490, 4493 (to be codified at 40 CFR 68.3). PD-8(R), 60 FR 8781.

  • Transportation entirely on private industrial property is not transportation "in commerce" and therefore not subject to the HMR. PD-10(R), 60 FR 8792; PD-9(R), 60 FR 8785.

  • Hazardous material stored (1) at a consignee's facility or (2) at a manufacturing facility awaiting use in a manufacturing process is not stored incidental to transportation in commerce, and therefore is not subject to the HMR. PD-9(R), 60 FR 8787.

  • Regulation of consignee storage tanks is not within HMR jurisdiction; therefore, State or local requirements as to the types of storage tanks at a consignee's facility into which a hazardous material may be unloaded from a tank car are not preempted. PD-9(R), 60 FR 8788.

  • Federal hazmat law waives sovereign immunity of Indian tribes, and thereby allows tribes to be sued in Federal court, regarding preemption of tribal requirements. Public Serv. Co. of Colorado v. Shoshone-Bannock Tribes, 30 F.3d 1203. 1206 (9th Cir. 1994).

  • Local government need not obtain an RSPA inconsistency ruling before enforcing a local requirement. National Tank Truck Carriers, Inc. v. Burke, 608 F.2d 819, 821-2 (1st Cir. 1979); City of New York v. Ritter Transportation, Inc., 515 F. Supp. 663, 668 (S.D. N.Y. 1981), aff'd sub nom. National Tank Truck Carriers, Inc. v. City of New York, 677 F.2d 270 (2d Cir. 1982); Seaboard System R.R., Inc. v. Bankester, et al., 254 Ga. 455, 330 S.E. 2d 700, 705 (1985). Contra (based on doctrine of primary jurisdiction): Consolidated Rail Corp. v. City of Dover, 450 F. Supp. 966, 974 (D. Del. 1978).

  • "Because the DOT authored the HMR, its determination of what constitutes an obstacle to the accomplishment or execution of those regulations is deserving of substantial deference." #Southern Pac. Transp. Co. v. Public Serv. Comm'n of Nevada, 909 F.2d 352, 359 (9th Cir. 1990).

  • Local fire code requirements do not apply to the transportation of hazardous materials in commerce, and are not preempted, when those requirements conta