The Hazardous Materials Transportation Act: a Preemption Update

• Publication year: 1993
• Pages: 747
• Citation: Vol. 04 No. 1993 Pg. 747

22 Colo.Law. 747 Colorado Lawyer 1993.

1993, April, Pg. 747. The Hazardous Materials Transportation Act: A Preemption Update

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747

The Hazardous Materials Transportation Act: A Preemption Update

by Joel W. Cantrick

In December 1986, The Colorado Lawyer published an article by this author discussing the federal Hazardous Materials Transportation Act of 1975 ("HMTA"),(fn1) its implementing regulations ("HMR")(fn2) and the extent to which that system of federal regulation preempts inconsistent state and local laws on the same subject.(fn3)

Since that publication, the Department of Transportation's ("DOT") inconsistency rulings have almost doubled, additional preemption litigation has ensued and the HMTA has undergone major amendment.(fn4) In addition, DOT recently published a comprehensive subject-matter index of administrative and judicial preemption authorities, along with a table collecting the agency's inconsistency rulings, nonpreemption determinations and its lone waiver of preemption determination.(fn5)

The time is ripe for an update. This article discusses major developments since 1986, but does not reintroduce the underlying law. For a preliminary understanding of the topic, the reader should refer to the 1986 article.

DOT Inconsistency Rulings: 1987-1990

From January 1987 to September 1990, DOT issued fifteen new inconsistency rulings covering a wide variety of subjects. Objectionable regulations often concerned the transportation of radioactive materials ("RAM"). Strong citizen outcry is frequently associated with RAM transport, no doubt contributing in such cases to an erosion of the local political will to craft narrow regulations consistent with federal dictates. For example, one city attempted broadly to ban RAM transport by creating a so-called "Nuclear Free" transportation zone. Predictably, DOT found the law to be inconsistent in all respects.(fn6)

On the other hand, enactments which reflected a more balanced approach to the regulation of RAM transportation enjoyed more success.(fn7) Citizen challenges to RAM transport regulations spawned a standing determination by DOT, in which it announced a broad interpretation of the "person affected" standing requirement for purposes of challenging inconsistency rulings.(fn8)

Regulations with respect to hazardous materials other than RAM also fostered a mixed bag of inconsistency rulings from 1987 to 1990, as follows:

1) railroads (burdensome and discretionary permitting system inconsistent;(fn9) differing local requirements inconsistent(fn10));

2) tank truck carriage of hazardous liquids and gases (regulations regarding cargo containment systems, equipment and related areas inconsistent as involving exclusively federal areas and causing delay(fn11));

3) city routing and time restrictions on through traffic (regulations inconsistent because of absence of determination of effect on overall public safety and lack of consultation with other affected jurisdictions(fn12));

4) explosives (local adoption of vague placarding requirement of 1979 Uniform Fire Code inconsistent(fn13));

5) hazardous waste haulers (inconsistent as to $1,000 bond per-vehicle requirement,(fn14) but consistent as to speed limit, separation distance, "headlights on," hazardous waste manifest-carriage and placarding, certain CB radio requirements and certain immediate accident reporting requirements(fn15));

6) training requirements;(fn16)

7) storage of hazardous materials;(fn17) and

8) transportation permit and fee requirements.(fn18)

These rulings are instructive both as to the specific regulations already found to be permissible and the reasons why DOT finds regulations to be inconsistent with federal law. While the DOT inconsistency rulings are advisory only, they have received judicial...