[Federal Register Volume 64, Number 125 (Wednesday, June 30, 1999)]
[Notices]
[Pages 35239-35245]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16623]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
Federal Highway Administration
[Docket No. RSPA-98-3579 (PDA-20(RF))]
Application by Association of Waste Hazardous Materials
Transporters for a Preemption Determination as to Cleveland, Ohio
Requirements for Transportation of Hazardous Materials
AGENCY: Research and Special Programs Administration (RSPA) and Federal
Highway Administration (FHWA), DOT.
ACTION: Public notice reopening comment period.
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SUMMARY: RSPA and FHWA are reopening the comment period on the
application by the Association of Waste Hazardous Materials
Transporters (AWHMT) for an administrative determination whether
Federal hazardous materials transportation law preempts certain
requirements of the City of Cleveland, Ohio, concerning the
transportation of explosives and other hazardous materials within the
City. AWHMT has asked RSPA and FHWA to defer consideration of several
of the requirements challenged in AWHMT's original application because
the City is
[[Page 35240]]
considering amending those requirements. In addition, AWHMT wishes RSPA
and FHWA to consider requirements not challenged in its original
application concerning the minimum distances that must be maintained
between vehicles transporting explosives or other hazardous materials.
Interested parties may comment on all the City's requirements for which
AWHMT seeks a preemption determination, including the City's separation
distance requirements.
DATES: Further comments received on or before August 16, 1999, and
rebuttal comments received on or before September 28, 1999, will be
considered before an administrative ruling is issued jointly by RSPA's
Associate Administrator for Hazardous Materials Safety and FHWA's
Administrator. Rebuttal comments may discuss only those issues raised
by comments received during the reopened initial comment period and may
not discuss new issues.
ADDRESSES: AWHMT's original application, its request to modify and
amend that application, and all comments and other documents submitted
in this proceeding may be reviewed in the Dockets Office, U.S.
Department of Transportation, Room PL-401, 400 Seventh Street, SW,
Washington, DC 20590-0001. All documents filed in this proceeding are
also available on-line through the home page of DOT's Docket Management
System at http://dms.dot.gov>.
Comments should be submitted to the Dockets Office at the above
address. Three copies of each written comment should be submitted. You
may also submit comments electronically. To do so, long on to the
Dockets Management System at http://dms.dot.gov>. Click on ``Help &
Information'' to obtain instructions for filing a comment
electronically.
Each comment should refer to the Docket Number set forth above. A
copy of each comment must also be sent to (1) Mr. Michael Carney,
Chairman, Association of Waste Hazardous Materials Transporters, 2200
Mill Road, Alexandria, VA 22314, and (2) Mr. Cornell P. Carter,
Director of Law, City of Cleveland, City Hall--Room 106, 601 Lakeside
Avenue, Cleveland, OH 44114-1077. A certification that a copy has been
sent to these persons must also be included with the comment. (The
following format is suggested: ``I certify that copies of this comment
have been sent to Messrs. Carney and Carter at the addresses specified
in the Federal Register.'')
A list and subject matter index of hazardous materials preemption
cases, including all inconsistency rulings and preemption
determinations issued by DOT, are available through the home page of
RSPA's Office of the Chief Counsel, at http://rspa-atty.dot.gov>. A
paper copy of this list and index will be provided at no cost upon
request to Mr. Hilder, at the address and telephone number in For
Further Information Contact below.
FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief
Counsel, Research and Special Programs Administration (Tel. No. 202-
366-4400), or Judith A. Rutledge, Office of the Chief Counsel, Federal
Highway Administration (Tel. No. 202-366-0864), U.S. Department of
Transportation, Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
AWHMT has applied for a determination that Federal hazardous
material transportation law, 49 U.S.C. 5101 et seq., preempts certain
requirements of the City of Cleveland (City) applicable to the
transportation of explosives and other hazardous materials in and
through the City. In its application, AWHMT challenged requirements of
the City concerning the transportation of:
--Hazardous materials in an amount for which a placard is required by
the HMR, in Chapter 394 of the City's Consolidated Ordinances (City
Code) for a permit, permit fees, proof of insurance, and routing and
time restrictions.
--Explosives in any amount, in Chapter 387 of the City Code for a
permit, permit fees, proof of insurance, routing and prenotification of
shipments, vehicle inspections, the number of fire extinguishers, and
the City's unmodified requirement for a police escort to accompany
shipments of more than 250 lbs. of explosives.
The text of AWHMT's application was published in the Federal
Register on September 17, 1998, and interested parties were invited to
submit comments. 63 FR 49804. After RSPA and FHWA initially denied
requests by the Public Utilities Commission of Ohio (PUCO) and the City
for a 60-day extension of the time to submit comments, comments were
submitted by the City, AWHMT, PUCO and the following additional
parties: Association of American Railroads, Hazardous Materials
Advisory Council, Institute of Makers of Explosives, National Paint &
Coatings Association, Ohio Environmental Service Industries, and
Roadway Express.
Following receipt of these comments, RSPA and FHWA realized that
the two periods for submitting comments had been inadvertently
shortened, from 45 days to 30 days, in the notice published in the
Federal Register. (In the text of the notice submitted to the Federal
Register, RSPA and FHWA had specified 45 days for the initial and
rebuttal comment periods.) Based on that error and the City's
statements of its attempts to resolve many of the issues informally
with AWHMT, RSPA and FHWA held a telephone conference with
representatives of AWHMT and the City on December 14, 1998. In a
December 28, 1998 letter, RSPA confirmed that, over the next two
months, AWHMT and the City would explore informal resolution of the
issues raised in AWHMT's application and advise RSPA and FHWA of the
results of these efforts.
II. Request To Modify Application
In further correspondence and a conference telephone call on April
8, 1999, AWHMT and the City advised RSPA and FHWA that the City's Law
Department was proposing changes to the City Code that would resolve
many of the issues raised in AWHMT's application. In its April 15, 1999
letter (set forth in Appendix A), AWHMT asked to modify and amend its
application. It asked RSPA and FHWA to consider at this time only the
requirements on which AWHMT had not been able to reach an understanding
with the City, including requirements not challenged in its original
application concerning the minimum distances that must be maintained
between vehicles transporting explosives or other hazardous materials.
AWHMT also asked RSPA and FHWA to defer consideration of sections in
the City Code that the City is proposing to amend. AWHMT's request and
the City's response in an April 30, 1999 letter to RSPA and FHWA (set
forth in Appendix B) are summarized below.
A. Requirements To Be Addressed by RSPA and FHWA
In its letter, AWHMT requested that RSPA and FHWA determine whether
Federal hazardous materials transportation law preempts the following
requirements:
--City Code Sec. 394.06(b) prohibiting the transportation of hazardous
materials in the ``downtown area'' of the City between 7 a.m. and 6
p.m. except Saturdays and Sundays, unless the Fire Chief grants an
exception pursuant to Sec. 394.08(e) on a showing
[[Page 35241]]
that ``delivery or pickup of the hazardous material * * * can be
practicably made only during [the prohibited] time period'' and
transportation of this material is in ``the public interest'';
--City Code Sec. 387.07(d) and the provision in the Application for the
Transportation of Explosives (Application) requiring the carrier to
specify the route to be taken within the City and providing that the
Director of Public Safety (or his representative) shall designate the
route to be taken within the City;
--the Application's provision that the carrier must notify the Fire
Department ``24 hours in advance of all deliveries'' of explosives
within the City;
--the Application's provision that a police escort is required if more
than 250 lbs. of explosives are transported within the City; and
--City Code Secs. 387.08(b) and 394.07(b) requiring a vehicle
transporting explosives or other hazardous materials to maintain a
certain distance from any other vehicle transporting explosives or
other hazardous materials, i.e., 500 feet between vehicles transporting
explosives and 300 feet between vehicles transporting other hazardous
materials.
AWHMT acknowledged that it had not challenged Secs. 387.08(b) and
394.07(b) in its original application and asked permission to amend its
application to include these requirements. AWHMT contends that these
separation distance requirements ``hinder the safe operation of
vehicles, are impossible to comply with at the distances required, and
are a misuse of federal placarding requirements.'' AWHMT stated that it
would submit a new, separate application for a preemption determination
with respect to the City's separation distance requirements if the City
objected to consideration of these requirements in this proceeding.
In response, the City stated that it is willing to continue to
discuss with AWHMT the first four requirements summarized above, but a
resolution is not likely. The City objected to DOT's consideration of
the separation distance requirements in City Code Secs. 387.08(b) and
394.07(b) on the grounds that (1) AWHMT has not shown that it, or its
members, are ``directly affected'' by these requirements, as specified
in 49 U.S.C. 5125(d)(1); (2) AWHMT waived its right to challenge these
requirements by failing to include them in its original application;
and (3) all issues in AWHMT's amended application should be ``the
subject of a notice in the Federal Register''and ``subject to comments
by interested parties.''
Inasmuch as the discussions between AWHMT and the City have better
focused the issues to be addressed in this proceeding, RSPA and FHWA
believe it is appropriate to allow interested parties the opportunity
to submit additional comments on all the requirements challenged in
AWHMT's original application that are currently at issues between AWHMT
and the City. Because it is appropriate to reopen the comment period
with respect to all issues relating to four requirements challenged in
AWHMT's original application, it is logical to allow interested parties
to also submit comments in this proceeding on the City's separation
distance requirements in City Code Secs. 387.08(b) and 394.07(b)--
rather than consider these requirements in a separate proceeding. The
City's separation distance requirements appear to apply to the driver
of any vehicle transporting explosives or other hazardous materials
within the City of Cleveland, including drivers employed by the
companies whose affidavits were submitted with AWHMT's original
application. Each of these companies stated that their vehicles pick
up, deliver, or otherwise transport hazardous materials within the
City.
B. Requirements To Be Deferred
In their letters, AWHMT and the City agree that RSPA and FHWA
should defer consideration of the following sections in the City Code
which AWHMT had challenged in its original application, but which the
City is proposing to amend:
--394.08, 387.02(g), 387.04, and 387.07 concerning annual permits;
--394.16 and 387.04(b) concerning fees for permits;
--394.08 and 387.09 concerning proof of insurance;
--387.08(a) concerning vehicle inspections; and
--387.08(a) concerning fire extinguishers.
The City stated that, pending action on the proposals to amend the
City Code, the City's Division of Fire will continue to refrain from
enforcing ``the hazardous materials and explosive transportation permit
and fee requirements under Sections 394.08, 394.16, 387.04 and
387.07,'' but that it would not agree to
withhold enforcement of the other provisions of the City's Codified
Ordinances that are listed on page two of [AWHMT's] April 15, 1999
correspondence, namely, permit and insurance requirements for the
use and storage of explosives, vehicle inspections (except for
annual inspections which the City does not conduct), and the
maintenance of at least one fire extinguisher in good working
condition.
RSPA and FHWA agree with AWHMT and the City that it is preferable
to defer consideration of requirements that are being proposed to be
revised, when those revisions (if adopted) may resolve the concerns
raised in AWHMT's application. Accordingly, RSPA and FHWA are not
inviting further comments on the requirements listed above, which will
not be addressed further in this proceeding unless and until AWHMT or
the City advises that they have been unable to resolve these parts of
AWHMT's original application.
C. Effect of Revision of Routing Requirements
Finally, AWHMT asked FHWA for an opinion with respect to the
requirements in City Code Sec. 394.06(a) and (d) providing that
hazardous materials may be transported on ``City streets [only by] the
safest and most direct route and the shortest distance from an
interstate highway to the point of origin or destination, as determined
by the Fire Chief or his designee.'' AWHMT noted that this restriction
was created prior to November 14, 1994 and, therefore, is not subject
to the condition in 49 U.S.C. 5125(c)(1) that a highway routing
designation or limitation must comply with FHWA's regulations in 49 CFR
397.71. RSPA and FHWA understand that the City will consider deleting
from Secs. 394.06(a) and (d) the language underlined above, but that,
according to AWHMT, ``The City is not willing to make any change to its
routing requirements if the change would subject the City to the
requirements of 49 CFR 397.71.''
The City's letter did not address AWHMT's request FHWA's opinion as
to whether the deletion of the phrase ``as determined by the Fire Chief
or his designee'' from Secs. 387.08(b) and 394.07(b) would constitute
the establishment of a highway routing designation, limitation, or
requirement after November 14, 1994. FHWA intends to respond to AWHMT's
request separately from this preemption proceeding.
III. Reopening of Comment Period
For the reasons stated above, the period for public comments on
AWHMT's application, as amended by its April 15, 1999 letter, is being
reopened. Comments may be submitted through August 16, 1999 and may
[[Page 35242]]
discuss all issues relating to the City's requirements referred to in
Part II.A., above, currently challenged by AWHMT, including issues
raised in comments previously submitted. Rebuttal comments may be
submitted through September 28, 1999 and may discuss only those issues
raised in comments submitted during the reopened initial comment
period; rebuttal comments may not raise new issues.
All comments should be limited to whether 49 U.S.C. 5125 preempts
the City's requirements referred to in Part II.A., above. Comments
should set forth in detail the manner in which these requirements are
applied and enforced, and should specifically address the preemption
criteria discussed in Part II of the September 17, 1998 public notice.
Persons intending to comment should review the standards and
procedures governing consideration of applications for preemption
determinations, set forth at 49 CFR 107.211-107.211 and 397.201-
397.211.
Issued in Washington, DC, on June 17, 1999.
Kenneth R. Wykle,
Administrator, Federal Highway Administration.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety, Research and
Special Programs Administration.
Appendix A
April 15, 1999.
Kenneth R. Wykle,
Administrator, Federal Highway Administration, HOA-1, 400 Seventh
St., SW., Washington, DC 20590.
Mr. Alan I. Roberts,
Associate Administrator, DHM-1, Research and Special Programs
Administration, 400 Seventh St., SW., Washington, DC 20590.
Re: PDA-20 (RF)
Dear Messrs. Wykle and Roberts: On behalf of the Association of
Waste Hazardous Materials Transporters (AWHMT), I am writing to
modify and amend the Association's request that certain requirements
imposed by the City of Cleveland, OH (City) on motor carriers
engaged in the transportation of hazardous materials be preempted.
The AWHMT represents companies that transport, by truck and
rail, waste hazardous materials, including industrial, radioactive
and hazardous wastes, in North America. The Association is a not-
for-profit organization that promotes professionalism and
performance standards that minimize risks to the environment, public
health and safety; develops educational programs to expand public
awareness about the industry; and contributes to the development of
effective laws and regulations governing the industry.
Background
Under the auspices of RSPA's and FHWA's Office of General
Counsel (OGC) and with agreement of the City's Department of Law
(Department) and the AWHMT, discussions were initiated in the fall
of 1998 to voluntarily resolve issues in dispute in the matter of
PDA-20(RF) short of a determination of preemption. These discussions
have been productive in a number of areas. They have also helped to
clarify areas where the parties have agreed that no acceptable
compromise is likely. While we do not want at this time to cut off
discussions in areas where progress appears to be forthcoming, we
are no longer willing to delay RSPA's consideration of issues we
have mutually agreed will not be resolved short of a preemption
determination. Consequently, we are requesting that certain
provisions challenged in our petition be held in abeyance, that the
remaining provisions be addressed forthwith, and that our petition
be amended to address another critical issue that regrettably was
not identified in our original petition.
Provisions To Be Held in Abeyance
The Department has offered to recommend to the Mayor and the
City Council that the City voluntarily amend its Code to address
several of the provisions challenged in our petition in a manner
that is consistent with Federal hazardous materials transportation
law (FHMTL). The Department has also agreed to withhold enforcement
of these provisions pending final action to amend the Code. Despite
the good faith efforts of the Department to reach a voluntary
settlement of these matters, the Department cannot bind the Mayor or
the City Council to any agreements reached. Consequently, at this
time, we are requesting that the following provisions challenged in
our application of preemption be held in abeyance:
Code Sec. 394.16 and Sec. 387.04(b) concerning fees
Code Sec. 394.08 and Sec. 387.09 concerning proof of
insurance
Code Sec. 387.08(a) concerning vehicle inspections
Code Sec. 387.08(a) concerning fire extinguishers
Code Sec. 394.08, Sec. 387.02(g), Sec. 387.04 and
Sec. 387.07 concerning annual permits
Following final action by the City and review by AWHMT of its
amended Code, we will notify the Department and your offices of our
intent to withdraw our objection or to ask that DOT reinstitute its
preemption review of any remaining challenged provisions.
Provisions To Be Resolved Through Preemption Determination
The AWHMT and the Department have been unable to reach a common
understanding about the preemptive affect of FHMTL on the following
provisions and requirements:
Code Sec. 394.06(b) concerning the time-of-day and day-of-
week restrictions on the transportation by motor carrier of
placarded hazardous materials within the ``downtown area'' of the
City.
Code Sec. 387.07(d) and Application for the Transportation
of Explosives concerning the requirement that no explosive, as
defined by the City, be transported within the City without the
carrier prefiling a route and unless the route is approved by the
City.
Application for the Transportation of Explosives concerning
24-hour prenotification of all explosives deliveries.
Application for the Transportation of Explosives concerning
police escort for every shipment of more than 250 pounds of any
explosive(s) if transported on City streets.
We continue to believe that these provisions and requirements
will impermissibly delay the transportation of hazardous materials
and are thus inconsistent and preempted by FHMTL. We ask that DOT
refer to all prior filings for our justification as to why these
provisions should be determined to be preempted.
We are mindful of DOT's statutory obligation to issue
determinations of preemption within six months. AWHMT's application
was filed and accepted by DOT in March 1998, but not even published
in the Federal Register for six months. While we agreed to
temporarily halt review during the last four months, we are anxious
that a speedy determination of preemption be reached insasmuch as
the City has not and will not suspend enforcement of these
challenged provisions.
Petition To Amend AWHMT's Application for a Determination of
Preemption
We regret that in our March 2, 1998 filing we did not ask DOT to
review Code Sec. 394.07(b) and Sec. 387.08(b) concerning separation
distance requirements between vehicles transporting hazardous
materials.\1\ We request permission to amend our application for a
determination of preemption in the matter of PDA-20(RF) to
incorporate review of these requirements. We understand that the
City may object to this request. If such objection is made, we
intend to submit a new application for a determination of
preemption.
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\1\ City of Cleveland Code requirements are attached.
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Code Sec. 394.07(B) provides that vehicles transporting
placarded hazardous materials must maintain a separation distance
for all other placarded vehicles of at least 300 feet, and Code
387.08(b) provides that if the vehicle is transporting explosives,
the separation distance from any other vehicle transporting
explosives must be 500 feet. This explosives separation requirements
is not even conditioned on a requirement that the vehicle be
placarded. Some exceptions are provided for the Code Sec. 394.07(b)
requirement, but none are provided under Code Sec. 387.08(b). We
believe these requirements hinder the safe operation of vehicles,
are impossible to comply with at the distances required, and are a
misuse of federal placarding requirements.
Placarded vehicles have little control over traffic conditions
they encounter. There is no federal requirement that standardizes
the placement of placards on vehicles. The
[[Page 35243]]
placards can be anywhere on the sides and ends of vehicles. There is
no federal minimum distance visibility standard. However at 300 feet
the visual signature of a placard, if it can be seen given
intervening traffic, would be minuscule. The visibility problem is
exacerbated at 500 feet where the distances is larger and the driver
is supposed to be able to discern no only that a placard exists but
that it is specific placard.\2\ It goes without saying that the duty
to identify vehicles containing explosive materials for which a
placard is not required is impossible. The purpose of a placard is
to communicate risk in the event of an incident. It is not intended
for traffic control as envisioned by the City's Code. We believe
this requirement will divide the attending of the very drivers the
City should want to stay focused on the road. Instead, these drivers
are going to be tasked to scan vehicles in all directions of
travel,/3/ including around corners, within the City--an area
already, by the city definition, congested--at all times of day, in
all weather, to determine if placards exist. For these reasons, we
do not believe these requirements can or should be complied with, or
that they can be enforced in other than an arbitrary and capricious
way.\4\
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\2\ See attached affidavit of Karla Moore, Tri-State Motor
Transit, Co., Inc., page 2.
\3\ Drivers could only hope to make this identification through
rear view mirrors for vehicles to the rear. These mirrors are not
intended or adjusted to identify vehicles 300 feet/500 feet to the
rear.
\4\ See affidavit of Karla Moore that explains for detail the
consequences of such separation distance requirements.
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If these requirements are allowed to stand, they present a
training nightmare. Assuring that all motor carriers of hazardous
materials that entertain any possibility of engaging in
transportation in Cleveland will have knowledge of these
requirements, which is dubious, that motor carrier will have to
modify its training programs to include information about the City's
separation requirements. Then the motor carrier will have to hope
that the driver remains aware of these requirements. Then the motor
carrier will have to hope that the driver remains aware of these
requirements during any forthcoming trip within the City, which
given the uniqueness of the requirements is unlikely, especially for
the occasional driver to the City. It almost begs for the carrier to
provide a separate refresher training notice to the driver each time
a shipment may go in the vicinity of the City. It cannot be the
intent of Congress that the training requirements of drivers
operating in interstate commerce be dictated by the whims of local
jurisdictions.
The City has, during the course of our discussions, made clear
it intents to enforce these requirements. However, it has not
explained what special circumstances exist in the City to justify
this extraordinary requirement, nor has it disclosed the scientific
analysis that underpins the 300 feet/500 feet separation instead of
for example some other distance requirement. The burden of asserting
and demonstrating a supportable safety justification for these
requirements should be placed squarely on the City.
The issue of separation distances has been considered in other
preemption proceedings. Irrespective of DOT's interpretations in
these prior proceedings, the type of separation requirement at issue
here can be distinguished from these other proceedings.
First, the City's requirements is not a following
distance requirement. It contemplates a duty on drivers of vehicles
transporting placarded hazardous materials in addition to maintain
adequate following distance from the vehicles ahead, to be aware of
the respective distances of other such hazmat vehicles within a
circumference of hundreds of feet. Only once, in 1981, did DOT deal
with a separation distance requirements similar to that contemplated
by the City Code.\5\
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\5\ IR-3, 46 FR 18923 (March 26, 1981).
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Second, the preemption provisions of the FHMTL have
been amended twice by Congress since DOT last considered the issue
of non-federal separation or following distance requirements. Both
times, the preemption provisions of the FHMTL were strengthened. Not
only did the Congress reaffirm its intent ``to preclude a
multiplicity of * * * local regulations and the potential for
varying * * * regulations in the areas of hazardous materials
transportation'', but declared that ``greater uniformity'' was
``necessary and desirable'' in order to ``promote * * * safety'' in
commerce.\6\
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\6\ S. Rept. 1192, 93rd Cong. 2d Sess., 1974, page 37; and P.L.
101-615, Section 2(5).
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Third, the FHMTL charges DOT, not localities, with duty
to ``prescribe regulations for the safe transportation of hazardous
materials in intrastate, interstate, and foreign commerce.'' \7\ DOT
has accomplished this objective through the hazardous materials
regulations (HMR). Recently, FHWA recognized the fundamental
importance of the HMR when it proposed to update the term
``compatible/compatibility'', as a condition to qualify states to
receive motor carrier safety assistance, to reflect RSPA's new
requirement that transporters of hazardous materials comply with the
HMR during all intrastate operations.\8\ With this mandate, RSPA has
``questioned `the advisability of encouraging a driver to constantly
direct his attention away from the proximity of his vehicle' and how
* * * distance requirements promote [ ] safety.'' \9\ Given its
mandate, it would be absurd for DOT to sanction a non-federal
requirement it admits compromises safety.
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\7\ 49 U.S.C. 5103(b).
\8\ 64 FR 11414 (March 9, 1999). In receiving grant assistance
under this program, states are required to certify that any local
requirements affecting the transportation of hazardous materials by
motor carrier are also consistent with the HMR.
\9\ 55 FR 39744, citing IR-3, FR 18918 (March 26, 1981).
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Fourth, Sec. 397.3 cannot save the City's requirements.
Section 397.3 existed before the above referenced amendments were
made to the FHMTL during this decade. This section of regulation
simply has not kept pace with congressional intent, and it cannot
take precedence over federal law and the congressional mandate to
achieve safety through greater uniformity.\10\
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\10\ Speed limits, detours and other traffic management
requirements that apply to all trucks are not in dispute.
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Section 397.3 is so dated that it does not even demand that the
non-federal operating rules have a safety nexus. Since the purpose
of the HMR is to ensure the safe transportation of hazardous
material, or in the case of the federal motor carrier safety
regulations (FMCSR), the safe operation of commercial motor
vehicles, it is little wonder that any number of non-safety-based
local requirements that could interfere or unreasonably burden
hazardous materials transportation would not be at ``variance with
specific regulations of [DOT]''.\11\ However, in fact DOT has
considered and has issued a hazardous materials vehicle separation
requirement. Section 397.9 provides that vehicles transporting
division 1.1, 1.2, or 1.3 materials must not be parked within 300
feet of certain structures or activities, and exceptions are
provided. The Code Sec. 387.08(b) requirement for a 500-foot
separation distance for vehicles transporting explosives applies
while the vehicle is moving and while the vehicle is parked. As
noted above, no exceptions are provided for the City's rule. Using
the logic employed by the Ninth Circuit in the matter of Chlorine
Institute, Inc. v. Califor. Hwy. Patrol concerning state-imposed
escort requirements, we assert that DOT's determination to regulate
only the distance between parked vehicles transporting specified
types of explosives shows that DOT has demonstrated its intent not
to require such separation distances for vehicles transporting other
hazardous materials. The court went on to preempt this state
requirement as interfering with Federal uniformity in an unsafe and
burdensome manner.\12\ If a court is willing to apply this principle
to a state requirement, there can be no doubt of its applicability
to a local requirement. Any non-federal requirement that uniquely
applies to the transportation of hazardous materials and applies
differently or in addition to the FHMTL or HMR or applicable FMCSR
must be subject to scrutiny under DOT's preemption standards and not
be protected under the guise of local vehicle operating
requirements.
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\11\ Ibid.
\12\ Chlorine Institute, Inc. v. Calif. Hwy. Patrol, Civ. S-92-
396 (E.D. Cal., September 16, 1992), aff'd, 29 F.3d 495 (9th Cir.
1994).
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Fifth, absent some compelling local circumstance that
we are unaware of, DOT would set an untenable precedent if it allow
these requirements to stand after acknowledging that safety is
compromised. Such a determination would allow for the possibility
that the Nation's other 30,000 jurisdictions would impose unique
separation distance requirements without restraint.
We recommend that DOT find the City's separation requirements be
preempted under the ``dual compliance'' standard as they conflict
with federal requirements as outlined in the attached affidavit or
with 49
[[Page 35244]]
CFR 397.9 as noted above.\13\ If DOT concludes that these provisions
do not rise to the level of a conflict, we request that DOT find
these requirements preempted under its authority to preempt non-
federal requirements that pose ``an obstacle to accomplishing and
carrying out'' the law.\14\
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\13\ 49 U.S.C. 5125(a)(1)
\14\ 49 U.S.C. 5125(a)(2).
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Request for Technical Assistance
With no prejudice to all parties, we request an opinion from
FHWA as to whether the City's routing designations and restrictions
will be compromised if the City either strikes the phrase ``as
determined by the Fire Chief, or his designee'' currently appearing
in Code Sec. 394.06(a) and (d) of if the City otherwise clarifies
that this phrase does not require some type of route
prenotification.\15\ We understand that the City's intra-city route
designations and restrictions were in place prior to November 14,
1994, and as such are grandfathered from the requirement to be
consistent with the federal highway routing standards set forth at
49 CFR 397.71. The City is not willing to make any change to its
routing requirements if the change would subject the City to the
requirements of 49 CFR 397.71.
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\15\ This issue is separate and apart from the prenotification
of explosive routes currently required by Code Sec. 387.387.07(d).
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Conclusion
We are willing to hold in abeyance certain issues raised in our
petition for a determination of preemption pending the outcome of
efforts by the City to reform its Code in a manner consistent with
the FHMTL. At the same time, we are asking for expeditious review of
matters the City and we acknowledge will not be resolved by further
discussion. Finally, we request that our petition for preemption be
amended to include a review of requirements for vehicle separation
distances.
Certification
I certify that a copy of this comment has been sent to Mr.
Sylvester Summers at the address specified in the Federal Register.
Respectfully Submitted,
Cynthia Hilton,
Executive Director.
Attachments
1. Cleveland Code Sec. 387.08(b).
2. Cleveland Code Sec. 394.07(b).
3. Affidavit of Tri-State Motor Transit.
[Attachments not reproduced, available from RSPA]
Appendix B
April 30, 1999.
Kenneth R. Wykle,
Administrator, Federal Highway Administration, HOA-1, 400 Seventh
St., SW, Washington, DC 20590.
Alan I. Roberts,
Associate Administrator, DHM-1, Research and Special Programs
Administration, 400 Seventh St., SW, Washington, DC 20590.
Re: City of Cleveland's Response to the Association of Waste
Hazardous Materials Transporter's (AWHMT) Request to Amend Petition
No. PDA-20 (RF) and to Hold Certain Provisions in Petition in
Abeyance
Dear Messrs. Wykle and Roberts: The City of Cleveland hereby
submits this response to AWHMT's letter dated April 15, 1999,
requesting permission to amend petition no. PDA-20(RF) and to hold
certain provisions in abeyance pending the outcome of negotiations
between the parties.
A. Background/Provisions To Be Resolved Through Preemption
Determination
The City agrees with AWHMT's characterization of the discussions
which have taken place between the parties, and the progress which
has been made with regard to settling certain provisions of PDA-
20(RF). The City intends to continue discussions with AWHMT
regarding those issues which AWHMT has requested be held in
abeyance.
Moreover, the City understands that AWHMT has requested that the
Department of Transportation and the Federal Highway Administration
move forward to decide the four (4) provisions of the City of
Cleveland's Codified Ordinances and the current Explosives Permit
application listed on page two of the April 15, 1999 letter, to wit,
Section 394.06(b) time-of-day and day-of-week restrictions, Section
387.07(d) prenotification and approval of route for explosives
transportation, and the explosives transportation application
requirements for 24 hour prenotification and police escort. To the
extent practical, the City is willing to continue to discuss these
issues with AWHMT, but is doubtful resolution is likely.
B. Provisions To Be Held in Abeyance
For the record, the City would like to clarify a representation
that AWHMT makes concerning the City's agreement to withhold
enforcement of certain provisions of its Codified Ordinances which
AWHMT has challenged but has asked RSPA hold in abeyance. In our
discussions with AWHMT, the City has acknowledged that the Division
of Fire, since the filing of PDA-20(RF), has refrained from
enforcing the hazardous materials and explosives transportation
permit and fee requirements under Sections 394.08, 394.16, 387.04
and 387.07, and the Division of Fire has indicated it will continue
to withhold enforcement of these provisions even though it is not
required by law to do so.
The City, however, did not represent to AWHMT that it would also
withhold enforcement of the other provisions of the City's Codified
Ordinances that are listed on page two of the April 15, 1999
correspondence, namely, permit and insurance requirements for the
use and storage of explosives, vehicle inspections (except for
annual inspections which the City does not conduct), and the
maintenance of at least one fire extinguisher in good working
condition. I have brought this to the attention of Cynthia Hilton
and explained that I would clarify the City's position in this
letter, and I believe she is in agreement with the above
explanation.
C. Petition To Amend AWHMT's Application for Determination of
Preemption
The City objects to AWHMT request for permission to amend its
application for a determination of preemption to include a challenge
to City of Cleveland Codified Ordinances 394.07(b) and 387.08(b),
which require vehicles transporting hazardous materials to maintain
a 300 or 500 foot separation distance from other vehicles containing
hazardous materials. The basis for the City's objections are set
forth below:
(1) AWHMT Has Not Established That It Is Directly Affected by
the City's Requirement.
Federal law provides that a person ``directly affected'' by a
requirement of a political subdivision, may apply for a preemption
determination under 49 U.S.C. 5125 (49 USCA 5125(d)(1); 49 CFR
107.201(a)(1)). The City maintains that AWHMT has not established in
its filing of April 15, 1999, that it is directly affected by the
City's minimum distance requirement. Therefore, it does not have
standing to request a preemption determination on the minimum
distance requirement.
AWHMT has attached the affidavit of a representative of TriState
Motor Transit Co. (hereinafter referred to as ``Affiant'')
ostensibly to establish standing to amend PDA-20 (RF) to include the
challenge to the City's minimum distance requirement. This affidavit
includes numerous hypothetical situations which might occur in the
worst case scenario if the City were to enforce the minimum distance
provision in an unreasonable and arbitrary fashion. The affidavit,
however, contains no factual evidence which supports a determination
that the Affiant is directly affected. Affiant states, in fact, that
TriState provides virtually no service to the City of Cleveland, and
further admits that ``TSMT has never been cited for violating these
separation requirements''. AWHMT attached no other evidence that its
members have been directly affected by the City's minimum distance
requirement. Therefore, AWHMT has failed to establish that it has
standing to bring this request for a preemption determination, and
its request should be denied.
(2) AWHMT Has Waived Its Right To Include a Challenge to the
City's Minimum Distance Requirement.
AWHMT has waived its right to challenge the City's minimum
distance requirement for the reason that it neglected to include
this issue in its original petition. Support for this proposition
can be found at 49 CFR 107.23 which establishes the requirements for
an application for a preemption determination. The regulations
implicitly contemplate that preemption applications must be
comprehensive and complete when filed (see 107.203(b) (2) and (3).
The regulations make no provision for amending or revising the
preemption petition after it is filed. From a policy perspective,
amending a petition to allow amendments while a proceeding is
pending discourages a political subdivision from engaging in
negotiations since the issues in controversy are constantly subject
to change. For these reasons, AWHMT's request to amend the petition
should be denied.
(3) The Entire Amended Petition Should Be Subject to the
Publication and Commentary
[[Page 35245]]
Requirements of 40 CFR 107.203(d) and 107.205.
Without waiving its objection to AWHMT's request to amend its
petition, the City requests that in the event RSPA grants AWHMT's
request to amend, the entire amended petition, including the new
challenge to the minimum distance requirement as well as the
challenges to the other provisions of the City's ordinances
contained in the original petition filed in March of 1998, be the
subject of a notice in the Federal Register and the subject to
comments by interested parties, including the City of Cleveland,
pursuant to 49 CFR 107.205. Opening up the entire petition to
comments would allow a newly interested party to comment to all
issues, not just the minimum distance requirement. Moreover, it
would allow the City of Cleveland the opportunity to supplement its
comments already submitted with affidavits, which it was not able to
do previously because of time constraints.
This concludes the City of Cleveland's response to AWHMT's
submission dated April 15, 1999. We appreciate this opportunity to
comment. I hereby certify that a copy of this letter was sent to
Cynthia Hilton, on behalf of the Applicant, the Association of Waste
Hazardous Materials Transporters.
Very truly yours,
Joyce M. Dodrill,
Assistant Director of Law.
[FR Doc. 99-16623 Filed 6-29-99; 8:45 am]
BILLING CODE 4910-60-M
