Hazardous Waste at the Crossroads: Federal and State Transit Rules Confront Legal Roadblocks

J. B. Dougherty

The last several years have marked a precipitous growth in federal, state, and local legislation governing the transportation of dangerous materials, e.g., bulk chemicals, compressed gases, hazardous waste, and radioactive materials. The reasons underlying this trend are fairly discernible. Hazardous waste and its associated health risks have been frequent targets of the media, to the point that few members of the public are unfamiliar with the Love Canal incident or the dangers of toxic waste dumps generally. This has engendered an enduring public clamor for governmental responses. Moreover, as regulatory programs administered by the Environmental Protection Agency (EPA) and state agencies under the Resource Conservation and Recovery Act (RCRA) begin to take hold, many generators of hazardous waste may find that their custom of simply storing it on site is more burdensome than transferring it to licensed treatment or disposal facilities, resulting in an increase in hazardous waste transportation.

Radioactive materials transportation has clearly been increasing steadily, as more nuclear power plants have come on line and the use of radioisotopes for medical and industrial uses has escalated. It is generally agreed that low-level radioactive materials can be transported by truck with relative safety. Far greater risks are presented by shipments of spent nuclear reactor fuel. Several studies have shown that in the unlikely event that a spent fuel container were sabotaged in a densely populated area, the consequences would be catastrophic. Historically, spent fuel shipments have been necessary only 200 or so times per year because plant owners have had little alternative but to leave it in on-site storage pools. However, as on-site storage capacity has reached critically low levels, shipments have been on the rise, and may reach a level of 9,000 per year within 25 years.¹ To reduce this risk, at least two federal agencies and hundreds of municipalities around the country have promulgated spent fuel transportation bans or restrictions.

Compressed gas tank trucks have been with us for years and years, but urban areas are becoming less tolerant of the risks they present, particularly with regard to trucks containing petroleum products such as propane. In the last few years more stringent rules governing such shipments have appeared at the federal, state, and local levels. Indeed, it seems that legislatures and regulatory agencies are becoming more concerned about the environmental and public health risks of transportation activities generally. However, the ensuing proliferation of transportation control measures has emerged in a somewhat haphazard fashion. Gaps, overlaps, and conflicts are common both among federal programs and between federal and state programs. Moreover, transportation restrictions seem frequently to be drafted in response to perceived emergencies, and thus are either ill-conceived or promulgated in violation of statutory or constitutional requirements.

In the federal arena, jurisdiction over hazardous materials transportation is divided among the Department of Transportation (DOT), EPA, the Nuclear Regulatory Commission (NRC) and the Interstate Commerce Commission (ICC). The lion's share of authority is vested by the Hazardous Materials Transportation Act (HMTA) in DOT, which has smoothly coordinated its joint authority over hazardous waste with EPA. However, with respect to shipments of radioactive materials, particularly spent fuel, the interface between DOT's powers under the HMTA and the NRC's powers under the Atomic Energy Act is essentially one large grey area. The ICC has both claimed and denied statutory powers to regulate movements of hazardous and radioactive materials; for the moment it asserts authority over the latter but not the former.

State and local agencies have also been active in this area, encouraged by the HMTA's explicit reservation of their authority to promulgate rules that are "consistent" with DOT's. But the concept of consistency has proven an elusive one, and turf wars are the rule. States and municipalities have also found that their enactments often run afoul of the nondiscrimination requirement of the Commerce Clause. The cases provide a fairly complete picture of the existing regulatory framework as well as the constitutional and statutory impediments to future regulatory initiatives.

Federal Authority

Since 1871 Congress has mandated the promulgation of federal regulations governing the transportation of hazardous materials. A statute enacted in that year directed the Secretary of the Treasury to develop safety standards governing shipments of explosives, flammables, and acids by water.² The Transportation of Explosives Act,³ enacted in 1908 and later amended to apply to corrosives, poisons, and other dangerous cargoes, was the first to apply to rail and truck transportation. This law was implemented by the ICC. In 1958, the Federal Aviation Administration was given authority over air transportation of hazardous materials.⁴ This division of regulatory jurisdiction among three agencies was one of the leading causes of the general inefficacy of the overall federal program.⁵

In 1966 Congress passed the Department of Transportation Act,⁶ which consolidated these authorities and transferred them to DOT. Five years later, DOT adopted routing regulations requiring that motor vehicles containing [12 ELR 10076] hazardous materials avoid "heavily populated areas, places where crowds are assembled, tunnels, narrow streets, or alleys" unless there is "no practicable alternative."⁷ However, inadequate funding prevented enforcement of this requirement.⁸ In addition, institutional disorganization reminiscent of that which had plagued previous regulatory efforts persisted.⁹ In yet another attempt to impose some order on the regulation of hazardous materials transportation, Congress enacted the HMTA in 1974.¹⁰

The Hazardous Materials Transportation Act

The HMTA strengthened and clarified DOT's mandate in a number of important ways. To promote the establishment of a "comprehensive approach to minimization of the risks"¹¹ associated with hazardous materials transportation, Congress directed DOT to eliminate the safety risks associated with every mode and aspect of transportation.¹² Thus, DOT now regulates everything from the integrity of shipping boxes to the crash resistance of tank trucks, from the training of vehicle operators to the routing of radioactive cargoes.

Another important theme which permeates the Act is its preservation of the powers of state and local governments to promote transportation safety. Section 112(a)¹³ provides that nonfederal rules governing hazardous materials transit are valid to the extent they are consistent with DOT's rules. Otherwise, they are preempted. In addition, § 112(b) authorizes DOT to grant waivers of preemption where it finds that particular rules, though they are inconsistent with DOT's, provide a greater level of safety without unduly burdening interstate commerce. This accommodation of state police powers, though perhaps a high-minded attempt to promote federalism, tends to cast state and federal regulators as adversaries. The intensity of the conflicts that can arise was revealed in the recent decision of a New York district court in City of New York v. Department of Transportation.¹⁴ Though the decision deals only indirectly with the HMTA's consistency provisions, it represents an important statement of DOT's affirmative responsibility to promote safety.

In 1976 the City of New York's Board of Health amended its health code to prohibit shipments through the city of spent nuclear fuel or large quantities of radioactive materials.¹⁵ Studies indicate that in areas as densely populated as New York City, accidents (particularly sabotage) involving such shipments, though extremely unlikely, could conceivably lead to the cancer-induced deaths of thousands, and economic damages in the billions of dollars.¹⁶ The direct consequences of the health code amendment, on the other hand, were to prevent all shipments to which it applied from leaving Long Island by truck. Radioactive shipments originating on Long Island are now moved by barge across Long Island Sound to Connecticut, where they are transferred to truck for highway shipment.

On the day the health code amendment was enacted the operators of a Long Island nuclear laboratory and the United States filed suit in federal court seeking a declaratory judgment that it was unconstitutional and unenforceable. After preliminary injunctive relief was denied by the court, the parties agreed to the placement of the action on the suspense calendar pending a determination by DOT as to whether the New York City regulation was inconsistent with federal requirements within the meaning of § 112(a) of the HMTA. DOT's 1978 "Inconsistency Ruling" criticized the city's transit rule as unwide and possibly dangerous.¹⁷ However, the agency was unable to conclude that the rule was inconsistent with federal rules and therefore preempted by the HMTA. Though it had authority under the Act to preempt such ordinances, DOT had never issued regulations under the HMTA dealing with the routing of hazardous materials. Thus, the city's requirements were legally binding.

This determination prompted DOT, which was convinced that the city ordinance was unjustified and concerned that it was a large step toward the nationwide paralysis of spent fuel movements, to announce a rulemaking to develop a somewhat broader rule governing several aspects of shipments of various kinds of radioactive materials.¹⁸ The notice of proposed rulemaking made it clear that one of the principal purposes of the proceeding was to strike down state and local rules, particularly New York's, that interfered with truck shipments of radioactive material.¹⁹ For this reason DOT found it unnecessary, despite the urging of several commenters, to evaluate other transportation modes, such as barging.²⁰

The final rule, issued on January 19, 1981²¹ and effective February 1, 1982, was denominated "HM-164." In rough outline, the rule (1) places no restrictions on small shipments of slightly radioactive, "low-risk" materials, (2) establishes placarding, packaging, and very general routing requirements for shipments of intermediate risk, and (3) for "large quantity materials" shipments, including spent reactor fuel, sets forth both packaging and placarding rules as well as fairly stringent routing requirements. The latter do not, however, require densely populated areas to be avoided. Rather, they direct that large quantity shipments move over "preferred routes," which consist mainly of interstate highways and beltways around urban areas.²² Finally, the rule explicitly preempts all nonfederal rules governing the routing of radioactive [12 ELR 10077] shipments if they prohibit the use of highways between any two points (i.e., mandate the use of other shipping modes) or if they otherwise restrict the use of routes that are permitted under DOT's rule. There was clearly no room in this scheme for spent fuel bans like New York City's.

The city, joined by a number of states and municipalities, sought from the Southern District of New York a ruling that HM-164 either was invalid or did not preempt the city's routing rule. For the most part, in City of New York v. Department of Transportation,²³ Judge Sofaer rejected plaintiffs' legal arguments. For example, he saw no merit in their claims of Tenth Amendment violations and "unlawful delegation of legislative authority." Nor could he agree that DOT's authority under the HMTA is limited to the promotion of safety, and therefore that it had no business preempting nonfederal rules in order to facilitate hazardous materials transportation. The HMTA, the court noted, authorizies DOT to pursue simultaneously the objectives of safety, efficiency, and national uniformity of regulations.

The court emphasized the differences between two standards governing preemption under § 112. Plaintiffs argued that if a state or local rule affords equal or greater protection than its federal counterpart and still burdens commerce minimally, then it remains valid. The court concluded that, on the contrary, this is the standard applicable to DOT waivers of preemption under § 112(b) of the HMTA. Where, however, DOT has not expressly exempted a specific nonfederal rule from preemption, it will be preempted under § 112(a) if it is merely inconsistent with a federal rule. There was no occasion to explore the concept of inconsistency in depth. The health code clearly prohibited spent fuel shipments where HM-164 expressly permitted them, and was, therefore, inconsistent.

The court went on, however, to declare HM-164 invalid to the limited extent that it applied to shipments of spent fuel and large quantities of radioactive materials. Principally, the court faulted DOT's estimates of both the probability and consequences of accidents involving shipments through densely populated areas.²⁴ The agency's estimate that the risk of such accidents is remote was not arbitrary and capricious, but the state of knowledge on this issue is subject to such large degrees of uncertainty that the failure to address this uncertainty constituted a violation of DOT's mandate under the HMTA and the National Environmental Policy Act (NEPA).²⁵ Further, it had illegally failed to consider the social and psychological impacts of exposure to the risk of accidents, as well as escalating scientific estimates of the potentially calamitous effects of spent fuel transportation accidents.

The court was even more concerned with DOT's persistent refusal, contrary to the almost unanimous pleas of the participants in the rulemaking, to extend the scope of HM-164 to other transportation modes, principally barging. The evidence in the record suggested that barging offers many advantages over trucking, including reduced cost and substantially increased safety.²⁶ Yet DOT had decided not to analyze this alternative and to preempt nonfederal barging requirements because, in its view, the risks of highway transport had been shown to be "acceptable." This reasoning, Judge Sofaer concluded, not only plainly violates NEPA's mandate to consider alternatives, it shows a fundamental misunderstanding of the HMTA's requirements.

HMTA's mandate to DOT is to promote public safety, a simple yet strong directive that obligates DOT not only to consider alternatives to proposed regulations but also, when considering alternatives, to adopt the safest option unless it is impractical, or unless DOT reasonably concludes that to do so could impair some other national policy, such as protecting the necessary flow of commerce. It is, in other words, impermissible, in the face of a credible risk with substantial potential consequences, for DOT to declare a certain level of safety "acceptable" regardless of the possibility of achieving higher levels through reasonable alternative measures. Stated differently, DOT had impermissibly given its seal of approval to the industry's preferred means of transportation rather than evaluating the reasonable alternatives and choosing that or those which best achieve the statutory goals. Prominent among these alternatives, the court added, was "no action." Absent a showing of real need to move spent fuel at all, there would be no reason for DOT to act affirmatively to override state and local bans.

For these reasons HM-164 was declared invalid to the extent that it permits spent fuel shipments through highly populated areas. Judge Sofaer did not, however, enjoin application of the rule outside of New York City. He noted that because each American city presents unique circumstances and many have different routing rules, the applicability of HM-164 and the degree to which it is inconsistent with local requirements must be determined on a case-by-case basis. He proposed that any jurisdiction seeking to avoid the preemptive effects of the rule should apply to DOT for a declaration of consistency under § 112(a) or a waiver of preemption under § 112(b) of the HMTA.

City of New York v. DOT suggests that while DOT has ample authority to preempt state and local routing rules, it may not simply declare certain rules unwise and casually promulgate a federal substitute with which they are inconsistent. DOT has now learned that its mission under the HMTA is to promote safety rather than to police the nation's hazardous materials transportation rules with an eye to snuffing out those which may impede commerce. In addition, HMTA rulemakings have been declared to be fully subject to NEPA and its mandate to consider alternatives.

Atomic Energy Act

The Atomic Energy Act²⁷ does not address the transportation of radioactive materials directly, but it does grant the NRC broad powers to regulate the possession and use of such materials, as well as nuclear waste disposal.²⁸ The NRC has exercised these powers to promulgate [12 ELR 10078] regulations²⁹ governing packaging, placarding and other aspects of radioactive materials transportation.

Until 1979 the NRC chose not to impose routing rules on radioactive shipments. But shortly after DOT ruled that it had no regulations on the books that preempted New York City's ban on spent fuel shipments,³⁰ the NRC began to develop a spent fuel routing requirement. On June 15, 1979 it amended 10 C.F.R. pt. 73 to provide that spent fuel shipments must avoid heavily populated areas "to the extent practicable."³¹ Its goal was to keep spent fuel away from areas in which sabotage would be the most likely and have the greatest consequences. Presumably this rule would also have preempted any nonfederal transportation rule with which it was inconsistent, including New York's. The issue was never resolved, however, because within days after the rule became effective several residents of an urban area in southeastern Virginia invoked the rule in a lawsuit seeking an injunction against certain spent fuel shipments that were moving on a regular basis through their neighborhoods. Their request for injunctive relief was denied.³² While the case was on appeal, NRC amended the rule.³³ The agency now relies on heavy security measures rather than routing rules to prevent serious spent fuel transportation accidents.³⁴

Resource Conservation and Recovery Act

Section 3003 of RCRA³⁵ directs EPA to promulgate standards applicable to transporters of hazardous waste. Section 3003(b) makes it clear that Congress did not intend EPA's rules to conflict with DOT's regulations under the HMTA. Rather, EPA's task was to create a "manifest system" that insures "cradle to grave" control over hazardous waste between the point at which it is generated and the point at which it is finally disposed of.

In May of 1980 EPA published regulations under § 3003.³⁶ Rather than duplicating DOT's requirements, EPA simply incorporated them by reference.³⁷ While EPA explicitly reserved the authority to enforce violations of DOT's rules,³⁸ in practice this responsibility has been shouldered by DOT.

Interstate Commerce Act

Under 49 U.S.C. § 15021 the ICC has jurisdiction to regulate the transportation by motor carriers of "passengers, property, or both." Whether the term "property" encompasses hazardous waste or other types of refuse is an issue on which the Commission has vacillated dramatically. In 1965 the ICC ruled in an adjudicative proceeding that it lacked jurisdiction over shipments of "debris and rubble" since such materials have only negative economic value.³⁹ Yet in 1969 it ruled differently with respect to radioactive waste, stating that the economic value of the material notwithstanding, the public benefits of regulating such shipments justified its assertion of jurisdiction.⁴⁰ In 1978 and 1979 the Commission reversed itself twice on this issue, thus preserving its assertion of jurisdiction,⁴¹ a position which was upheld by the Sixth Circuit.⁴²

In 1971 the ICC disclaimed jurisdiction over shipments of hazardous waste,⁴³ and dictum in the 1979 radioactive waste decision⁴⁴ suggested that it still adhered to that interpretation of the scope of its authority under the Interstate Commerce Act. However, it charged it mind in 1980 and commenced a civil action against a hazardous waste transporter for failing to obtain ICC authorization. Ruling on the Commission's request for preliminary injunctive relief, the court in Interstate Commerce Commission v. Browning-Ferris Industries, Inc.⁴⁵ held that defendants' activities constituted "private carriage" and were thus exempt from the Interstate Commerce Act. This was sufficient to end the dispute. But the court went on to rule that hazardous waste does not constitute property and is therefore exempt from ICC regulation. On the Commission's request for reconsideration, the court reaffirmed this holding.

Seven months later, on July 6, 1982, there appeared in the Federal Register a "declaratory order."⁴⁶ In this notice the Commission announced, without mentioning the adverse decision in the Browning-Ferris case, that it lacks jurisdiction over hazardous waste. It has not deviated from this position since.

The ICC's difficulties with this issue are an extreme but not isolated example of the checkered history of federal regulation of hazardous materials transportation. Yet, despite DOT's continuing struggles with spent fuel routing, the various pieces of the puzzle seem to be falling into place. The agencies seem to agree on the boundaries of their respective jurisdiction, and the most important regulations, with the possible exception of routing rules, have been developed.The approaching equilibrium, however, provides as sharp contrast to the situation at the state and local levels.

Legal Barriers to State and Local Rules

"Inconsistency" Under the HMTA

Section 112(a) of the HMTA provides, in relevant part, that

[12 ELR 10079]

any requirement of a State or political subdivision thereof, which is inconsistent with any requirement set forth in this chapter, or in a regulation issued under this chapter, is preempted.⁴⁷

Though it was unnecessary for the court in City of New York v. DOT to declineate precisely the balance between federal and nonfederal authority carved out by the HMTA, this critical issue has been addressed by several courts as well as DOT. DOT's regulations set out two criteria that it applies in determining whether a state or local hazardous material transportation requirement will be judged to be inconsistent with federal rules:

(1) Whether compliance with both the State or political subdivision requirement and the Act or the regulations issuedunder the Act is possible; and

(2) The extent to which the State or political subdivision requirement is an obstacle to the accomplishment and execution of the Act and the regulations issued under the Act.⁴⁸

These criteria are also applied by the courts, largely because they are derived directly from Supreme Court precedent under the Supremacy Clause.⁴⁹

The first half of this two-part test is visibly less restrictive than the second, since it asks essentially whether there is a direct conflict between DOT's regulations and a particular set of nonfederal rules. In most cases the challenged nonfederal rules will further the purposes of the federal rules and can be complied with simultaneously. Th second part has a greater reach because it permits effective and achievable safety rules to be voided where they conflict with the goals of the federal regulatory program. Two of these goals have presented substantial barriers to many nonfederal transportation rules. The first is embodied in 49 C.F.R. § 177.853(a), which aims at facilitating the movement of hazardous materials once they are on the highway:

All shipments of hazardous materials shall be transported without unnecessary delay, from and including the time of commencement of the loading of the cargo until its final discharge at destination.

Because of this requirement, nonfederal rules which restrict shipments at certain hours or in certain highly populated areas can and have been invalidated. The second regulatory goal that has proven fatal to state and local transit rules is not found in DOT's regulations but is derived directly from the HMTA. The legislative history indicates that the Act was intended to prevent a "multiplicity of State and local regulations" and to promote nationally uniform standards.⁵⁰ Thus, where nonfederal requirements are duplicative of, or even less demanding than, DOT's regulations, they may violate the second part of the inconsistency standard. The case law is illustrative.

In National Tank Truck Carriers, Inc. v. Burke⁵¹ plaintiffs challenged hazardous materials transportation rules promulgated in 1978 by the Rhode Island Division of Public Utilities and Carriers. These rules, which governed shipments of liquified natural and petroleum gas, required, among other things, that (1) shippers obtain from the state a permit for each shipment not more than two weeks nor less than four hours before it is moved; (2) each transport vehicle be equipped with a two-way radio; (3) no shipments may be made between the hours of 7-9 a.m. and 4-6 p.m., Monday through Friday; (4) accidents must be reported immediately to the state police and, in writing, within 24 hours to the Divison of Public Utilities and Carriers; (5) vehicles must keep their headlights illuminated while in transit; and (6) vehicles must be inspected for safety defects and leaks before and after each shipment.

Three of these requirements, the court ruled, were not inconsistent with DOT's regulations and were therefore not preempted. The requirements concerning two-way radios, headlight illumination, and safety inspections, though not federally mandated, did not render compliance with the federal rules more difficult.

However, the state's rush hour curfew presented a problem. Although its purpose, which was to avoid serious accidents at the times when their consequences would be greatest, was consistent with the HMTA, it could require vehicles to remain stationary for up to two hours. For this reason it conflicted with the goal of expedition set forth in 49 C.F.R. § 177.853(a) and was thus preempted. Moreover, the rule might play havoc in combination with different curfews in adjoining states and thus tended to undercut nationwide uniformity of rules. The permit requirement presented a similar problem. Much of the information required for the permit application could not be obtained until the truck had been loaded, yet transport could not begin until four hours after the permit applications had been submitted. This source of delay rendered the requirement inconsistent with 49 C.F.R. § 177.853(a). With respect to the requirement for written notice of accidents, the court noted that the state's 24-hour notice rule parallelled DOT's 15-day rule, and thus fostered multiplicity of rules.

Although the Rhode Island written notice requirement differs slightly from the federal requirement, it is sufficiently similar to be considered inconsistent with the federal regulation. The need for uniform written report standards is imperative.⁵²

The state's requirement of immediate notice to the police, on the other hand, was so obviously necessary that its validity could not be questioned.

In American Trucking Associations v. City of Boston,⁵³ a Massachusetts district court preliminarily enjoined city rules (1) requiring vehicles containing designated hazardous materials to be affixed with certain decals and placards and (2) directing drivers to obtain and carry permits from the city. In a rather summary fashion the court found these rules to be "burdensome" and thus inconsistent with the HMTA. The court upheld, however, the city's routing requirements and daytime [12 ELR 10080] curfew. These rules placed a 6 a.m. to 8 p.m. ban on the use of downtown city streets for transporting hazardous materials, and placed the area off limits at all times for cargoes originating outside the city,⁵⁴ except with respect to carriers that had obtained from the city an exemption from these requirements. The court concluded that these rules were "of extreme importance to public safety," less burdensome than the decal and placard rules, and thus consistent with federal requirements.

In City of New York v. Ritter Transportation Co.⁵⁵ a trucking firm⁵⁶ challenged city rules which, for most purposes, required trucks carrying hazardous gases destined for other jurisdictions to stay out of the city. Exemptions could be and were granted by the Fire Commissioner for shipments to destinations within the city and on Long Island. All such shipments, however, were subject to a rush hour curfew, and shipments to Long Island were subject to circuitous routing requirements. These rules, it was argued, interfered with the accomplishment of the HMTA's goals because they induced delay and were contrary to DOT's regulatory goal of expeditious transport.⁵⁷ In a departure from prior rulings by DOT and other courts, the district court interpreted 49 C.F.R. § 177.853(a) to be aimed not at facilitating commerce in hazardous materials, but at promoting safety by preventing delays that might increase transportation risks.⁵⁸ Viewed in this light, the New York City rules were deemed harmonious with federal requirements and therefore not preempted.

The Second Circuit affirmed.⁵⁹ It noted that there was no direct conflict between the city's rules and DOT regulations under the HMTA, because simultaneous compliance with both was not a physical impossibility. Second, the local rules did not hinder accomplishment of the goals of the federal program, since they were aimed at promoting safety, and they did not overlap with any specific routing requirements promulgated by DOT. Unlike the courts that had previously considered curfew requirements, the Second Circuit asked only whether they created a direct conflict with federal regulations, and not whether they undercut the goal of expedition set out in 49 C.F.R. § 177.853(a).⁶⁰ When framed this way, the issue was easily resolved in favor of the city.⁶¹

From the cases emerges a pivotal issue: to whom does the HMTA assign authority to judge the "consistency" of nonfederal rules — DOT, the courts, or both? A related question arises when DOT has determined a given rule to be consistent or inconsistent with its own rules. What degree of deference, if any, is owed such a determination by the courts?

The answers can be gleaned from the structure of § 112 of the HMTA. As discussed above, § 112(a) provides that nonfederal rules that are inconsistent with federal rules are preempted. Compare § 112(b), which provides that even inconsistent nonfederal rules may not be preempted if, in the opinion of the Secretary of Transportation, they provide greater levels of safety without unduly burdening interstate commerce. Since the latter determinations are entrusted specifically to the Secretary, it would seem, by negative implication, that determinations of inconsistency under § 112(a) lie squarely within the authority of the courts.

DOT, while not disagreeing with this view, has determined that § 112(a) inconsistency rulings are not "exclusively judicialin nature"⁶² and has adopted procedures for passing on the consistency of state or local rules at the behest of the jurisdiction.⁶³ DOT concedes, however, that for purposes of litigation these opinions are "advisory in nature."⁶⁴ The courts have agreed, but the decisions are divided on the question of how much to credit DOT's advice. It seems that those that agree with the agency's opinion will laud its expertise,⁶⁵ whereas those that disagree do so without hesitation.⁶⁶

The cases show that although the question often put to the courts is the rather technical one of whether nonfederal rules are "consistent" with DOT's, the answer often turns on a balancing of the burdens and benefits of the challenged nonfederal requirement. Trivial requirements, such as those mandating headlight illumination or frequent inspections of the vehicle by the drive, survive this balancing test. Permit requirements, on the other hand, were enjoined in two of the four cases discussed above. Curfews and routing rules would seem to be more burdensome than a permit requirement, but the cases show that they have been well received by the courts. This appears to be due to the fact that their safety benefits are virtually self-evident.

Preemption Under the Atomic Energy Act

While the preemptive effect of the NRC's regulations has apparently never been tested, it is well established that the Atomic Energy Act itself "created a pervasive regulatory scheme, vesting exclusive authority to regulate the discharge of radioactive effluents from nuclear power in the [NRC], and preempting the states from regulating [12 ELR 10081] such discharges."⁶⁷ Although the Act does preserve state regulatory powers in some instances,⁶⁸ these instances are limited and certainly do not extend to nuclear waste disposal and handling.⁶⁹

The Act's dominant preemptive theme was taken to heart by the Seventh Circuit in a recent decision. In Illinois v. General Electric Co.⁷⁰ the court affirmed a district court ruling declaring unconstitutional an Illinois ban on the importation of spent fuel for storage. Although accepting the company's Commerce Clause arguments,⁷¹ the court added that the state law had been federally preempted as well:

[T]he structure and legislative history of the [Atomic Energy Act] compels the conclusion that the Act … preempts state regulation of the storage, and shipment for storage, interstate and intrastate alike, of spent nuclear fuel.⁷²

Commerce Clause Barriers to Nonfederal Rules

When a state law or local ordinance governing hazardous materials transportation is attacked on the ground that it is preempted by a federal statute or regulations, the plaintiff typically raises a Commerce Clause argument as well. The cases show that these arguments have been effective, as the Commerce Clause provides potent restraints on the authority of nonfederal entities to regulate transportation of hazardous materials.

In general, the regulation of highway safety is considered primarily a matter of state concern,⁷³ and the Supreme Court has been reluctant to overturn state safety measures that yield substantial regulatory benefits.⁷⁴ However, where a state law erects at its borders a barrier against the movement of goods, it usually is found to reveal an intent to protect its residents from economic competition or safety risks. In such cases a "virtually per se rule of invalidity" applies, even if the goods have a "negative value," e.g., sewage sludge.⁷⁵ Thus, an Illinois ban on the importation of spent nuclear fuel for disposal, since it did not apply to intrastate shipments, was unconstitutional.⁷⁶ Similarly, an ordinance enacted by a Maryland municipality was invalid under the per se rule since it prohibited the carriage or disposal in the county of hazardous wastes that did not originate there.⁷⁷

Where state or local legislation does not discriminate against transportation originating outside the jurisdiction, but evenhandedly promotes safety, it may nevertheless be held violative of the Commerce Clause if it impairs commerce to too great a degree. For this purpose the courts apply a balancing test:

Where the statute regulates eventhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits … [t]he extent of the bruden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.⁷⁸

In National Tank Truck Carriers, Inc. v. Burke⁷⁹ a district court applied this formula to a set of Rhode Island transportation safety regulations that had survived a preemption challenge under the HMTA.The court found that provisions requiring immediate accident notification, vehicle inspection at the points of loading and unloading, and constant headlight illumination presented such inconsequential burdens on shippers that they were not even arguably violative of the Commerce Clause.⁸⁰ As to the state's requirement that vehicles be equipped with two-way radios, the court balanced its value in facilitating immediate accident notification against the cost of installing CB radios, and concluded that the burden on commerce was acceptable. In National Tank Truck Carriers, Inc. v. City of New York⁸¹ the Second Circuit followed the same approach in judging the city's partial ban on compressed gas trucks passing through it. The burden on truckers forced by the city's routing rules to follow longer, indirect routes, the court found, were far outweighed by the need to prevent catastrophic accidents from occurring in densely populated areas.

A municipal ordinance governing hazardous waste was also challenged in Browning-Ferris, Inc. v. Anne Arundel County.⁸² After voiding under the per se rule restrictions on the disposal and transportation of hazardous waste generated extraterritorially, the court went on to apply a balancing analysis to other provisions of the challenged ordinance requiring that anyone who transports hazardous waste through the county, regardless of its place of origin, must obtain a license (for a fee of $1,000), carry a manifest on board each shipment which details the nature of the cargo, register each vehicle (for a fee of $50), and have each vehicle inspected "regularly." The court declared that although these requirements effectuated the county's legitimate efforts to acquire more information about the nature of the hazardous materials moving [12 ELR 10082] through and being deposited in the county, the resulting burdens on interstate commerce were disproportionately severe. Interstate shippers could hardly be expected to pay the county's $1,000 fee and meets its inspections and documentation requirements. Indeed, if every county could establish similar (or, worse yet, different) regulatory systems, hazardous waste transportation would grind to a halt. Moreover, the court noted, DOT and the State of Maryland administer regulatory programs which render the county's efforts totally superfluous.

On the other hand, the court upheld provisions of the county ordinance requiring that a permit be obtained before disposing of hazardous waste in the county and that the cargo manifest be kept on file at the dump site. Because thesse requirements are not discriminatory and actually regulate hazardous waste only at the point that it is taken out of the flow of commerce, they do not run afoul of Commerce Clause limitations.

The lessons of these cases is that the limitations embodied in the Commerce Clause can be both harsh and gentle. Many municipalities and states, concerned about an imminent influx of hazardous waste, have hastily drafted legislation designed primarily to keep the stuff out. Such bans and restrictions have been summarily struck down by the courts. But where legislation is not discriminatory and appears to strike a reasonable balance between the protection of public safety and health and the free flow of commerce, it will command greater judicial respect.

Conclusion

At long last, federal regulation of hazardous waste transportation is approaching maturity. Of course, DOT's controls over spent fuel transport have been dealt a setback, and the agency has yet to promulgate hazardous waste routing rules. Yet in most respects the programs mandated by federal law have been set in motion.

Further efforts on the state and local levels are encouraged by the HMTA and are appropriate. Specific routing requirements, for example, can be established only by those with an intimate understanding of local circumstances and transportation hazards. Unfortunately, many local measures seem to have been drafted in an effort to deflect safety risks to neighboring jurisdictions or to respond to perceived emergencies. Such measures, which often take the form of import bans or other discriminatory requirements, are clearly unconstitutional and thus have fared poorly in the courts. On the other hand, evenhanded and reasonable efforts to promote public safety have been upheld. The challenge for state and local regulators is to hold local interests no higher than national interests and, more specifically, to pay close heed to the courts' treatment of similar measures.

1. Panel on Social and Economic Aspects of Radioactive Waste Management, Committee on Radioactive Waste Management, Commission on Natural Resources, National Research Council (National Academy of Sciences), Social and Economic Aspects of Radioactive Waste Disposal: Considerations for Institutional Management 3-3 (Draft #2 Oct. 1981).

2. 16 Stat. 441 (1871).

3. 35 Stat. 554 (1908).

4. Pub. L. No. 95-726 (1958).

5. See NATIONAL TRANSPORTATION SAFETY BOARD, STATUS OF DEPARTMENT OF TRANSPORTATION'S HAZARDOUS MATERIALS REGULATORY PROGRAM 3 (1981) (hereinafter referred to as NTSB REPORT).

6. Pub. L. No. 89-670, 80 Stat. 931 (1966).

7. 49 C.F.R. § 379.9. This requirement, which remains in effect, was promulgated under authority of the Interstate Commerce Act, 49 U.S.C. § 304.

8. See NTSB REPORT, supra note 5, at 3-4.

9. Id.

10. Pub. L. No. 93-633, 88 Stat. 2156, codified at 49 U.S.C. § 1901 et seq. The HMTA is included in Title I of the Transportation Safety Act of 1974.

11. S. REP. NO. 1192, 93d Cong., 2d Sess. 2 (1974).

12. Id. at 7.

13. 49 U.S.C. § 1811(a).

14. 12 ELR 20461 (S.D.N.Y. Feb. 19, 1982).

15. NEW YORK, N.Y., HEALTH CODE § 175.111(l).

16. See City of New York, slip op. at 72.

17. 43 Fed. Reg. 16954, 16957-58 (1978).

18. 43 Fed. Reg. 36492 (1978).

19. 45 Fed. Reg. 7140 (1980).

20. See City of New York, slip op. at 12-14.

21. 46 Fed. Reg. 5298 (1981), codified at scattered sections of 49 C.F.R. pts. 170-177.

22. See 49 C.F.R. § 177.853(a).

23. 12 ELR 20461 (S.D.N.Y. Feb. 19, 1982).

24. City of New York, slip op. at 54-76.

25. 42 U.S.C. §§ 4321-4361, ELR STAT. & REG. 41009.

26. City of New York, slip. op. at 102, 104.

27. 42 U.S.C. § 2011, ELR STAT. & REG. 21201.

28. See generally Comment, Preemption Under the Atomic Energy Act: Federal Courts Void California and New York City Nuclear Power Laws, 9 ELR 10045 (1979).

29. See 10 C.F.R. pts. 71, 73.

30. See text at note 17, supra.

31. 44 Fed. Reg. 34466, codified at 10 C.F.R. § 73.37.

32. Virginia Sunshine Alliance v. Hendrie, 477 F. Supp. 68, 9 ELR 20748 (D.D.C. 1979).

33. 45 Fed. Reg. 37399 (1980).

34. See 10 C.F.R. § 73.37(c).

35. 42 U.S.C. § 6923, ELR STAT. & REG. 41909.

36. See generally Comment, EPA Issues RCRA's 'Credit-to-Grave' Hazardous Waste Rules, 10 ELR 10130 (1980).

37. See note accompanying 40 C.F.R. § 263.10.

38. Id.

39. Joray Trucking Corp. Common Carrier Application, 99 M.C.C. 109 (1965).

40. Long Island Nuclear Service Corp. Common Carrier Application, 110 M.C.C. 398 (1969).

41. Nuclear Diagnostic Laboratories Contract Carrier Application, 131 M.C.C. 578 (1979); Nuclear Diagnostic Laboratories Contract Carrier Application, 129 M.C.C. 339 (1978).

42. Akron, Canton & Youngstown R.R. v. Interstate Commerce Commission, 611 F.2d 1162 (6th Cir. 1979).

43. Transportation of "Waste" Products for Reuse, 114 M.C.C. 91 (1971).

44. Nuclear Diagnostic Laboratories Contract Carrier Application, 131 M.C.C. 578 (1979).

45. 12 ELR 20687 (N.D. Ala. 1981).

46. 47 Fed. Reg. 29403 (July 6, 1982).

47. 49 U.S.C. § 1811(a).

48. 49 C.F.R. § 107.209(c).

49. See, e.g., Ray v. Atlantic Richfield Co., 435 U.S. 151, 8 ELR 20255 (1978); Jones v. Rath Packing Co., 430 U.S. 519 (1977).

50. National Tank Truck Carriers, Inc. v. Burke, 608 F.2d 819, 824 (1st Cir. 1979).

51. __ F. Supp. __, 12 ELR __ (D.R.I. Mar. 17, 1982).

52. Id., slip op. at 26.

53. __ F. Supp. __, 12 ELR __ (D Mass. 1981).

54. Id., slip op. at 2. It is not clear from the opinion whether the Boston ordinance amounted to a ban or served merely as a regulatory scheme controlling the routing of hazardous material shipments.

55. 515 F. Supp. 663 (S.D.N.Y. 1981).

56. Defendant was the owner of a tank truck carrying liquified petroleum which developed a leak while crossing the George Washington Bridge. The incident, in addition to the safety risks it created, blocked all traffic on the bridge for eight hours.

57. See the discussion of 49 C.F.R. § 171.853(a) at notes 49-50. supra, and accompanying text.

58. 515 F. Supp. at 671.

59. National Tank Truck Carriers, Inc. v. City of New York, 12 ELR 20774 (2d Cir. May 3, 1982).

60. Id. at 20776.

61. The court added that the question of whether the city's "hazard class definitions" were consistent with DOT's should be resolved in the first instance by the district court, and for that single purpose remanded the case. Id.

62. 41 Fed. Reg. 38168 (1976).

63. See 49 C.F.R. § 107.203-.211.

64. 45 Fed. Reg. 71882 (1980).

65. See National Tank Truck Carriers, Inc. v. Burke, 12 ELR 20853 (D.R.I. Mar. 17, 1982), slip op. at 11 ("this Court recognizes the experience and judgment of those with nationwide responsibility …").

66. See American Trucking Ass'ns v. City of Boston, 12 ELR 20789 (D. Mass. 1981), slip op. at 6; City of New York v. Ritter Transportation, 515 F. Supp. 663, 672 (S.D.N.Y. 1981).

67. Train v. Colorado Public Interest Research Group, 427 U.S. 1, 16, 6 ELR 20549, 20553 (1976).

68. See Atomic Energy Act § 274, 42 U.S.C. § 2021, ELR STAT. & REG. 41207. See also Pacific Legal Found. v. State Energy Resources Conservation & Dev. Comm'n, 659 F.2d 903, 11 ELR 21070 (1981).

69. See id. (interpreting § 274(k) of the Act, 42 U.S.C. § 2021(k), ELR STAT. & REG. 41208).

70. 12 ELR 20793 (7th Cir. July 13, 1982).

71. Discussed infra at notes 75-76, and accompanying text.

72. Illinois v. General Electric, supra, slip op. at 16.

73. See South Carolina State Highway Dep't v. Barnwell Bros., 303 U.S. 177, 189 (1938).

74. Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429, 442-43 (1978); Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 775-76 (1945).

75. Philadelphia v. New Jersey, 437 U.S. 617, 8 ELR 20540 (1978).

76. Illinois v. General Electric Co., 12 ELR 20793 (7th Cir. July 13, 1982).

77. Browning-Ferris, Inc. v. Anne Arundel Cty., 12 ELR 20264 (Md. Ct. App. 1981).

78. Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).

79. 12 ELR 20853 (D.R.I. Mar. 17, 1982).

80. Id., slip op. at 39.

81. 12 ELR 20774 (2d Cir. May 3, 1982).

82. 12 ELR 20264 (Md. Ct. App. 1981).