New Hampshire Motor Transport Association v. Flynn

No. 83-669-D (D.N.H. December 30, 1983)

The court declares that a New Hampshire statute that requires transporters of hazardous materials to obtain a license from the state is preempted by the Hazardous Materials Transportation Act (HMTA) and violates the Commerce Clause. The statute requires that anyone who transports hazardous materials by truck must obtain either an annual or a single-trip license. The statute authorizes the imposition of civil and criminal penalties upon violators, and directs that licensing fees be earmarked for certain hazardous waste cleanup funds and highway safety programs.

After noting the presumption against the preemption of state laws, the court rules that the statute in question is nevertheless inconsistent with the requirements of the HMTA and the Department of Transportation (DOT) implementing regulations. DOT rules provide that shipments of haxardous materials are to be moved "without unnecessary delay." The state law serves to frustrate this requirement because the single-trip licenses available under the state statute can be obtained only during jweekday business hours, and thus some evening and weekend shipments will be delayed at the state border until the state's licensing office opens.

With respect to the Commerce Clause issues, the court determines that the license fees provided by the statute are best viewed as taxes upon the transportation of hazardous materials, and it weighs their validity under the four-part test set out in the tax cases. The court finds that there is an insufficient nexus between the taxed activity and the deposit of hazardous wastes in the state, insofar as many of the hazardous materials shipments subject to the tax do not constitute hazardous waste and are not likely to become hazardous waste within the state. Although the court holds that the tax is fairly apportioned between intrastate and interstate motor carriers, it rules that the tax discriminates against interstate commerce and is not fairly related to the services provided by the state. Most of the tax monies paid by out-of-state shippers are to be used to remedy the state's domestic hazardous waste problem, not to promote highway safety. Though concluding for these reasons that the statute is unconstitutional, the court denies plaintiffs' request for an order mandating the return of the tax monies previously paid to the state, ruling that such an order would be impermissible under the Eleventh Amendment.

Counsel for Plaintiffs
Grenville Clark III
Wendell, Clark & Solomon
50 Bridge St., Manchester NH 03101
(603) 625-4100

Jonathan D. Canter
Gray & Wendell
60 Congress St., Boston MA 02109
(617) 426-3900

Counsel for Defendant
Douglas L. Patch, Ass't Attorney General
Division of Legal Counsel
208 State House Annex, Concord NH 03301
(603) 271-3658

[14 ELR 20256]

Devine, J.:

Opinion

The generation and disposition of "hazardous waste"¹ poses serious problems to all levels of government throughout the United States. The instant litigation arises from certain efforts of the State of New Hampshire to attack such a problem. Before this Court, following hearing on the merits,² is the validity of a recently enacted state statute, Chapter 393 of the Laws of 1983, which purports to regulate the "transporters of hazardous materials³ and wastes."

The plaintiffs who interpose challenge to this legislation include the New Hampshire Motor Transport Association ("NHMTA");⁴ the American Trucking Associations, Inc. ("ATA");⁵ and the National Tank Truck Carriers, Inc. ("NTTC").⁶ They name as defendants the State of New Hampshire; Richard M. Flynn in his official capacity as Commissioner of the New Hampshire Department of Safety; and Gregory H. Smith in his capacity as Attorney General.

Chaper 393 of the New Hampshire Laws of 1983 vests in the Commissioner of Safety⁷ the regulation and promotion of the "safe transportation of hazardous materials and wastes by all modes of transportation" within the state of New Hampshire. 393:3.⁸ The statutory mandate requires the Commissioner to adopt the rules of certain federal agencies with regard to the transportation of hazardous materials and wastes, id., § 3, promulgate rules "no less protective of public safety" than are such federal rules, and also to adopt rules covering the reporting of all incidents arising from such transportation. Id., §§ 3(b), (c). Its enforcement is vested in the New Hampshire State Police and local police officers, safety inspectors, or any authorized agent of the Commissioner of Safety. Id., § 4. Those who transport hazardous materials or wastes must procure annual (at a cost of $25) or single-trip (at a cost of $15) licenses, the fees for which may not be prorated or reduced. Id., § 5(IV), (V). Violators are also subject to civil penalties not to exceed $5,000 for a natural person or $25,000 for any other person. The distribution of the revenues for such licenses and civil penalties is to be 75 percent to the state Hazardous Waste Cleanup Fund;⁹ five percent for certain "response programs"; and twenty percent to the Department of Safety for enforcement of the statutes and rules promulgated thereunder. Id., § 5. The statute also provides criminal penalties in the nature of a violation for a first offense, with a possible fine of not more than $500 for a natural person nor $1,000 for any other person; a misdemeanor [14 ELR 20257] for a second offense committed within five years; and a felony for a third offense within five years. Id.

The legal grounds upon which plaintiffs challenge Chapter 393 include allegations (1) that the statute is preempted by the federal Hazardous Materials Transportation Act ("HMTA"), 49 U.S.C. § 1801, et seq.; (2) that it unduly burdens interstate commerce in violation of both the Interstate Commerce Act, 49 U.S.C. § 10101, et seq., and the Commerce Clause (art. I, sec. 8, cl. 3 of the United States Constitution); and (3) that it violates the due process and equal protections provisions of both the federal and the New Hampshire Constitutions.¹⁰ The thrust of defendants' response to these allegations is that Chapter 393 is merely a valid exercise of New Hampshire's police and taxing powers. Analysis of the issues presented requires an outline of the significant facts detailed in the record before the Court.¹¹

Most of the business entities which are members of the plaintiff groups herein fall within the statutory definitions of the various types of "motor carriers" subject to regulation pursuant to the Interstate Commerce Act. 49 U.S.C. § 10102(12), (13), (14), (15). As such, they are statutorily mandated to provide their transportation services "on reasonable request" providing in response to such a request "safe and adequate service, equipment, and facilities." 49 U.S.C. § 11101; see Ashley, Drew and Northern Railway v. United Transportation Union, 625 F.2d 1357, 1369-70 (8th Cir. 1980).

Accordingly, motor carriers in the position of these plaintiffs transport goods from point to point at the request of a shipper. Such requests often come via the medium of telephone calls on short notice, and carriers responding thereto first check the geographical area where the shipment is to originate for the availability of equipment of the type necessary to transport the proposed shipment. Not unusually, shipments of "dry" freight (i.e., shipments which do not require specially designed trailers such as those of the tank type used to haul petroleum, chemical, or corrosive products) are dispatched by a shipper in less-than-truckload ("LTL") quantities. LTL shipments are often picked up by a carrier from a number of shipments and then consolidated at the carrier's terminal for shipment to a particular geographic area as a full truckload. Shipments of dry freight may include certain items categorized as hazardous materials, and in such instances they would be shipped in containers manufactured as designated by the United States Department of Transportation ("DOT"), and the load which contained such materials would be suitably marked with a placard as required by DOT. Loads in bulk of petroleum, chemical, and corrosive products are generally transported in tank-type trailers furnished by the members of NTTC, and the type and construction of such trailers is again largely mandated by DOT.

Regardless, however, of the type of shipment, it is a characteristic of motor carrier transport that operations continue twenty-four hours per day for seven days per week. They also attempt to solicit shippers located at the destination points of their outbound runs for the transportation of shipments destined to return to the points of origin, the idea being the avoidance of "deadheading," or returning a considerable distance with an empty vehicle. Generally, however, a carrier will not know at the outset of his outbound trip as to whether he will be successful in procuring a return shipment from his point of destination. On any given day within the borders of New Hampshire, some fifteen to twenty-five percent of motor carriers will be transporting hazardous materials.

1. The Claim that the Field Sought to be Regulated by Chapter 393 is Preempted by HMTA.

HMTA was enacted in early 1975 to centralize in DOT the authority to promulgate and enforce regulations to protect the public "against the risks to life and property which are inherent in the transportation of hazardous materials in commerce." 49 U.S.C. § 1801. It defines "hazardous materials" as "a substance or material in a quantity and form which may pose an unreasonable risk to health and safety or property when transported in commerce." 49 U.S.C. § 1801(2). The authority to designate the classification of hazardous materials is delegated to the Secretary of DOT, 49 U.S.C. § 1803, and thereunder the Secretary has so classified more than 1200 substances ranging from such household items as paint, matches, ink, and charcoal briquets to extremely hazardous materials such as plutonium, chlorine, and liquified petroleum gas. 49 C.F.R. § 172.101 (1981) ("Hazardous Materials Table").¹² The Secretary is also authorized to issue regulations governing "any safety aspect" of the transportation of hazardous materials, including packing, handling, labeling, marking, placarding, and routing of such materials. 49 U.S.C. § 1801(a). Carriers, shippers, and those who manufacture or maintain the containers for hazardous materials are required to file registration statements with DOT in a form prescribed by the Secretary as a precondition to such transportation or preparation of the containers therefor on such terms and conditions as are required by DOT. 49 U.S.C. § 1805(b), (c). Violations of HMTA are punishable by substantial civil, 49 U.S.C. § 1809(a), and criminal, 49 U.S.C. § 1809(b), penalties. Unlike Chapter 393 here at issue, however, there is no requirement of the payment of any license fees for the purpose of funding government enforcement of the penalty provisions of HMTA.

It is well established that a primary purpose of HMTA was the securing of a general pattern of uniform national regulations, designed to preclude a multiplicity of state and local regulations with the potential of conflict in the area of hazardous materials transportation. National Tank Truck Carriers, Inc. v. Burke, 608 F.2d 819, 824 (1st Cir. 1979), quoting from Senate Committee on Commerce Report No. 93-1192, Sept. 30, 1974. Accordingly, HMTA contains a "preemption" provision, which states in pertinent part:

(a) Except as provided in subsection (b) of this section, 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.

(b) Any requirement, of a State or political subdivision thereof, which is not consistent with any requirement set forth in this chapter, or in a regulation issued under this chapter, is not preempted if, upon the application of an appropriate State agency, the Secretary determines, in accordance with procedures to be prescribed by regulation, that such requirement (1) affords an equal or greater level of protection to the public than is afforded by the requirements of this chapter or of regulations issued under this chapter and (2) does not unreasonably burden commerce. Such requirement shall not be preempted to the extent specified in such determination by the Secretary for so long as such State or political subdivision thereof continues to administer and enforce effectively such requirement.

49 U.S.C. § 1811(a), (b).

The above-quoted provisions of HMTA do not, however, require, as plaintiffs have argued, that a state or local authority must apply to DOT for a ruling as to inconsistency, as "either the agency or the courts" may determine whether inconsistency exists. National Tank Truck Carriers, Inc. v. Burke, supra, 608 F.2d at 822 (emphasis in original).

The preemption of state law by federal statute or regulation is disfavored absent persuasive reasons to the effect either that the nature of the regulated subject matter permits no other conclusion [14 ELR 20258] or that the Congress has unmistakably so ordained. Commonwealth Edison Company v. Montana, 453 U.S. 609, 634 (1981); Chicago & North Western Transportation Company v. Kalo Brick & Tile Company, 450 U.S. 311, 317 (1981). The underlying rationale of the preemption doctrine is that the Supremacy Clause¹³ invalidates state laws that "interfere with or are contrary to, the laws of congress. . . ." Gibbons v. Ogden, 22 U.S. (9 WHEAT.) 1, 211 (1824), quoted in Chicago & North Western Transportation Company v. Kalo Brick & Tile Company, supra at 317.

Accordingly, when DOT is presented with requests for inconsistency rulings pursuant to 49 U.S.C. § 1811(b), it applies the same dual test which is followed by the courts, see, e.g., Ray v. Atlantic Richfield Company, 435 U.S. 151, 158 [8 ELR 20255] (1978); that is, (1) whether compliance with both the state statute and HMTA or the regulations promulgated thereunder is possible, and (2) the extent to which the state statute is an obstacle to the accomplishment or execution of HMTA and the regulations promulgated thereunder.40 C.F.R. § 107.209(c).

As interpreted by the New Hampshire Department of Safety, the license fee requirements of Chapter 393 are to be applied to the power units of the carriers who haul hazardous materials or wastes. Annual or single-trip licenses are to be available by medium of personal or mail applications from Monday through Friday (8:15 a.m. to 4:15 p.m.) at the Concord, New Hampshire, office of the Road Toll Administrator. Twenty-day temporary permits¹⁴ will be available during the same business hours at any of eleven Motor Vehicle substations which are sited throughout New Hampshire. Additionally, single-trip licenses may be obtained through the electronic facilities of truckstops sited throughout the United States on Monday through Friday between the hours of 9 a.m. and 3 p.m. In addition to the license fee itself, the user of such electronic services must pay a fee for same ranging from $10 to $18.50.

Thus, for example, a carrier who arrives at the New Hampshire border after 4 p.m. on a Friday must wait until the following Monday to procure even a single-trip license in compliance with Chapter 393. DOT has mandated, however, that all shipments of hazardous materials "be transported without unnecessary delay." 49 C.F.R. § 177.853(a). Defendants respond that such problems of delay can be averted if all carriers would purchase, for what the carriers describe as the "minimal" fee of $25,¹⁵ an annual license for all power units which would haul hazardous materials and wastes in New Hampshire. Defendants further equate the licensing fee of Chapter 393 with the diesel fuel tax imposed pursuant to N.H. RSA 260:52 and the licensing requirements imposed on interstate motor carriers by the New Hampshire Public Utilities Commission ("PUC"), N.H. RSA 375-B:22. This latter argument overlooks the constant factor that such fees are required of all motor carriers operating within New Hampshire regardless of the nature of the cargo being hauled by such carriers.¹⁶ Thus it can be said that neither of such fees discriminates against interstate commerce and each reflects a fair, if imperfect, approximation of the use of the facilities for whose benefit they are imposed. Evansville Airport v. Delta Airlines, Inc., 405 U.S. 707, 717 (1972).

That is not the case, however, with the license fees which Chapter 393 seeks to impose on the motor carriers who are members of the plaintiff organizations herein. The delays that might well accrue from the imposition of such fees I find and rule render impossible compliance with the mandates of HMTA and the regulations promulgated thereunder and constitute an obstacle to the accomplishment or execution of said federal statute and regulations. The preemption doctrine here clearly applies to render invalid the imposition of the license fees prescribed in Chapter 393 on the motor carriers of hazardous materials or wastes.¹⁷

2. The Claim that Chapter 393 Imposes an Unreasonable Burden on Interstate Commerce.

The license fee sought to be imposed by Chapter 393 is clearly akin to a tax imposed on the transportation of hazardous materials and wastes. Where, as here, a litigant challenges such a tax on the ground that it imposes an undue burden on interstate commerce, the Court must consider the evidence in light of four factors. These factors include: (1) whether the tax is applied to an activity which has a substantial nexus with the taxing state, (2) whether the tax is fairly apportioned, (3) whether the tax discriminates against interstate commerce, and (4) whether the tax is fairly related to the services provided by the state. Commonwealth Edison Company v. Montana, supra, 453 U.S. at 617; Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279 (1977).

The defendants here claim that the substantial nexus requirement is met because they have produced evidence which indicates that hazardous wastes are generally a byproduct or residue of a manufacturing process, the materials of which are largely transported into New Hampshire by motor carrier. This argument, however, is not persuasive. Although certain items listed by DOT as hazardous materials have been located in a number of hazardous waste dump sites in New Hampshire, the preponderance of the evidence does not support a claim that they were there brought or deposited by other than the manufacturer or by persons employed by such manufacturer. Additionally, there are, despite the recent amendments to the federal Hazardous Wastes Table, n.12, supra, a number of hazardous materials on said Table which when properly transported and used leave no byproduct or residue of hazardous wastes to be cleaned up. An illustrative example is oxygen which is widely used in respiratory therapy in medical facilities throughout the United States. A shipment of such (in containers and vehicles of the type mandated by DOT pursuant to HMTA and its regulations) from Albany, New York, to a medical facility in Portland, Maine, could well trigger a fifty-dollar additional charge¹⁸ for the mere transportation of such through the states of Vermont and New Hampshire. The Court finds and rules that the "nexus" factor is here attenuated, particularly in light of the preemption by HMTA of the licensing requirements of Chapter 393.

And while the licensing fee of Chapter 393 may be said to be fairly apportioned as among intrastate and interstate motor carriers,¹⁹ it is clearly discriminatory against interstate commerce and [14 ELR 20259] is not fairly related to the services provided by New Hampshire. This is so, even though defendants here argue that the statute is no more than a proper exercise of the state's police powers with respect to safety.

Heretofore, the laws dealing with hazardous materials and wastes have been enforced with respect to motor carriers by periodic inspections of vehicles entering and traversing the highways of the state. Two full-time State Police officers and approximately ten safety inspectors have been designated to such purposes, and from time to time all highway personnel of the State Police are engaged in these periodic inspections. Chapter 393, however, seeks to allot only 20% of the fees to be collected thereunder for such purposes. On its face, therefore, the statute is clearly less concerned with safety than with funding the cleanup of hazardous waste, the origin of which is not, by a preponderance of the evidence presented, due to any action or inaction on the part of the motor carriers represented by the plaintiff organizations herein. Additionally, the testimony of Earl M. Sweeney, Deputy Commissioner of the New Hampshire Department of Safety, at a public hearing before the New Hampshire Senate Committee on Development, Recreation and Environment held on May 27, 1983, demonstrates the real purpose of the licensing fees sought to be collected pursuant to Chapter 393.

The next section was something we hated to do, but we know it is going to pass along an additional expense to the trucking industry, and that is the licensing fee. New Hampshire has a great need to increase the amount of money available in the hazardous waste cleanup fund. This has failed by a magnitude of ten to produce the amount of money that was anticipated for it, and in order to attack the more than 45 sites that have already been identified in this State, some of which are not eligible for superfund money, there is a need to generate reserves in this fund. It seems that the most practical way to do it is through a user fee. California and many other states have gone through this same process. This user fee would require every vehicle which is either packarded [sic] or has a manifest and is carrying what has been classified by either the DOT or our Department of Health and Welfare as hazardous materials, substances, or whatever, to have an annual license for each vehicle, at a fee of $25.00. The license would expire on June 30th of each year to coincide with the road-toll licenses and they would be issued by the road-toll administration without any additional administrative fees or expenses for personnel. Seventy-five percent of the money would go into the hazardous waste cleanup fund, twenty percent would go to the Department of Safety for additional enforcement efforts and five percent would be available to local communities for grants and fund emergency response teams. . . . The fiscal note which accompanies the bill indicates the possibilities of revenue of as much as 750,000 dollars a year if the bill passes. The way this estimate was arrived at — there are presently 190,000 licensed diesel trucks that operate in New Hampshire. The bulk of them are out-of-state vehicles that come into New Hampshire. Roadside surveys around the country and in this State have indicated that about 25% of the vehicles are placarded and are hauling hazardous materials.This would mean 47,500 vehicles licensed at $25.00 each or about $1.1 million [ ]. In order to be on the conservative side, however, we took an estimate of 15% of the trucks that would haul hazardous materials at one time or another and would require a placard, or 30,000 trucks at $25.00 each equaling $750,000 [ ] that we are estimat[ing].

See pp. 2, 3 of aforesaid hearing transcript.

In short, the licensing fees sought to be imposed by Chapter 393 equate with the tax which is largely to be imposed on out-of-state motor vehicle carriers, the "operating incidence"²⁰ of which seeks to fund the cleanup of hazardous wastes, the production of which, the Court finds and rules, is not fairly attributable to the activities of the plaintiffs herein in the transport of hazardous materials and wastes within New Hampshire.

In short, the Court having recognized the legislative concern of New Hampshire for the safety of persons and property within its borders, Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 443 (1978), and afforded proper deference thereto, id.; National Tank Truck Carriers v. City of New York, 677 F.2d 270, 273 [12 ELR 20774] (2d Cir. 1982), finds and rules that it is not so connected with the licensing provisions of Chapter 393 as to do other than impose an undue burden on the transportation of products in interstate commerce. The mere "incantation of a purpose to promote the public health and safety does not insulate a state law from commerce clause attack," Kassel v. Consolidated Freightways Corporation, 450 U.S. 662, 670 (1981) (plurality opinion by Powell, J.), and Chapter 393 falls because due consideration of the factors mandated by Complete Auto Transit v. Brady, supra, in light of the evidence before this Court, makes clear that it constitutes an undue burden on interstate commerce.²¹

3. The Right of Plaintiffs to Reimbursement.

The parties have here agreed that prior to issuance of the preliminary injunction by this Court on October 31, 1983, the State of New Hampshire had collected and turned over to its Treasurer approximately $206,000 of license fees pursuant to the provisions of Chapter 393. At issue is whether the Court may order that such funds be reimbursed to those carriers from which they have been derived.

The Eleventh Amendment²² reflects the judgment that, in the absence of waiver or an explicit congressional statement to the contrary, federal courts are without power to impose liability by way of damages against a state. Quern v. Jordan, 440 U.S. 332 (1979); Edelman v. Jordan, 415 U.S. 651 (1974); Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Kostka v. Hogg, 560 F.2d 37, 44 n.6 (1st Cir. 1977). It is the disruptive effect a retroactive money award has upon a state's budget that distinguishes it from an injunction requiring an equal amount of propsective monetary relief. Hutto v. Finney, 437 U.S. 678, 692 n.18 (1978); Edelman v. Jordan, supra, 415 U.S. at 66 n.11. Planners of a state budget can take account of the latter, but not the former. Daubert v. Percy, 713 F.2d 328, 330 (7th Cir. 1983). It is accordingly clear that all funds paid pursuant to the mandate of Chapter 393 prior to the issuance of the preliminary injunction by this Court on October 31, 1983, cannot be recovered in the instant litigation in this court because of the bar of the Eleventh Amendment.

4. Defendants' Motion for Bond.

Defendants move pursuant to Rule 65(c), FED. R. CIV. P., for the posting of a substantial bond pending resolution of the instant action on the merits. In light of the high probability of success on the merits, now come to fruition in behalf of these plaintiffs, the fact that only the strictures of the Eleventh Amendment prevent this Court from ordering reimbursement of the $206,000 already collected, and with due consideration of the factors applicable in this Circuit, see Crowley v. Local No. 82, et al., 679 F.2d 978, 999-1001 (1st Cir.), cert. granted, 103 S. Ct. 913 (1983), the Court finds and rules that the motion for bond is without merit, and in the exercise of its discretion should be and is herewith denied.

[14 ELR 20260]

5. Conclusion

The foregoing shall comprise the findings and rulings of this Court pursuant to the provisions of Rule 52(a), FED. R. CIV. P. All requests for findings and rulings which are not hereinabove inferentially granted are herewith denied. By separate Order of this date, permanent injunction will issue preventing defendants therein named from seeking to enforce the licensing and penalty provisions of Chapter 393, N.H. Laws of 1983.

SO ORDERED.

Order

For the reasons set forth in its Opinion of this date granting plaintiffs herein relief by way of permanent injunction as against attempted enforcement of the licensing and penalty provisions of Chapter 393 of the New Hampshire Laws of 1983, it is herewith ORDERED:

1. That the defendants, their agents, servants, employees, representatives, attorneys, and all persons acting or purporting to act on their behalf, are herewith permanently enjoined from attempting to enforce the licensing and penalty (whether civil or criminal) provisions of Chapter 393 of the New Hampshire Laws of 1983 or regulations issued pursuant thereto.

2. That the defendants, their agents, servants, employees, representatives, attorneys, and all persons acting or purporting to act on their behalf, shall reimburse to those parties from whom any fees or penalties have been collected pursuant to the aforesaid Chapter 393 or regulations promulgated thereunder any suchfees or penalties so collected subsequent to the issuance of this Court's Order of preliminary injunction of October 31, 1983.

SO ORDERED.

Judgment

In accordance with the Opinion and Order of Permanent Injunction of December 30, 1983 of the Honorable Shane Devine Chief Judge, United States District Court, judgment is hereby entered.

1. In pertinent part, the State of New Hampshire statutorily defines "hazardous waste" as meaning

a solid, semi-solid, liquid or contained gaseous waste, or any combination of these wastes:

(a) Which, because of either quality, concentration, or physical, chemical, or infections characteristics may:

(1) Cause or contribute to an increase in mortality or an increase in irreversible or incapacitating reversible illness; or

(2) Pose a present or potential threat to human health or the environment when improperly treated, stored, transported, disposed of or otherwise mismanaged.

N.H. RSA 147-B:2 VII (Supp. 1981).

2. An earlier hearing on a preliminary injunction led to the issuance of such injunction, with an expedited hearing on the merits to follow:

3. Chapter 393 adopts for its definition of "waste" the definition of "hazardous waste" set forth in RSA 147-B:2, as described in pertinent part in n.1, supra. It defines "hazardous materials" as meaning.

those substances or materials in such quantity and form which may pose an unreasonable risk to health and safety or property when transported in commerce, by all modes which may include, but are not limited to, explosives, radioactive materials, etiologic agents, flammable liquids or solids, combustible liquids or solids, poisons, oxidizing or corrosive materials, and compressed gases which are listed by the Materials Transportation Bureau of the United States Department of Transportation in Title 49 of the Code of Federal Regulations and any amendment thereto.

Chapter 393, Section 2-I.

4. NHMTA is a nonprofit New Hampshire corporation which represents common, contract, and private motor carriers who transfer property both within and without the state of New Hampshire. It also comprises businesses engaged in related activities of providing goods and services to the New Hampshire motor carrier industry, and its offices are situated at 77 North Main Street in Concord, New Hampshire.

5. ATA is the national organization of the trucking industry, representing all types of motor carriers or property, both private and for hire. A non-stock, non-profit organization existing under the laws of the District of Columbia, it is quartered at 1616 P Street, Washington, D.C.

6. NTTC represents over 225 motor carriers who specialize in the transportation of commodities in bulk. It is also a non-stock, non-profit corporation organized under the laws of the District of Columbia, and has offices at 1616 P Street, Washington, D.C.

7. The New Hampshire Department of Safety is headed by an appointed (by Governor & Council for a term of five years, RSA 106-A:2) Commissioner who oversees the Directors of the three Divisions of State Police, Motor Vehicles, and Safety Services. RSA 102-A:1.

8. Chapter 393 of the Laws of 1983 is to be codified in various sections of the existing RSA. For convenience of reference throughout this Opinion, the Court refers to sections of the statute as passed by the 1983 session of the Legislature.

9. In 1981 the New Hampshire Legislature established a Hazardous Waste Cleanup Fund, the principal source of funding of which was to be a fee not in excess of one cent per kilogram per calendar quarter to be imposed on every generator of hazardous waste sited in New Hampshire. RSA 147-B (Supp. 1981). The 1983 Legislature increased this fee from one cent to four cents per kilogram.

10. Under dates of November 21 and November 29 plaintiffs herein filed motions to amend which respectively sought to add their claims with respect to the New Hampshire Constitution and to detail their claim of denial of equal protection by alleging discrimination against motor transportation carriers by imposition of burdens which were not imposed upon carriers by water, rail, or pipeline. These motions are granted pursuant to Rule 15(b), FED. R. CIV. P., as the issues therein were addressed at the hearing on the merits and the subsequent briefs filed by counsel.

11. The "record before the Court" includes, in addition to the exhibits, testimony, and pleadings, an agreed statement with appendices thereto.

12. The Federal Register for November 7, 1983 (coincidentally, the day after the issuance of this Court's Order detailing the reasons for its issuance of a preliminary injunction herein), has deleted from the Hazardous Materials Table set forth in 49 C.F.R. § 172.101 certain commodities which in pertinent part "present such a minimal hazard that they may not meet the definition of a hazardous material." See Appendix 3, p. 19, attached to defendants' post-trial memorandum filed with the Court under date of December 9, 1983.

13. The "Constitution and the Laws of the United States . . . shall be the supreme Law of the Land. . . ." U.S. CONST. art. VI, cl. 2.

14. Such 20-day temporary permits are designed for use by those carriers who have applied for an annual license and are awaiting the completion of the processing of same. Single-trip or annual licenses themselves are not available at the Motor Vehicle substation.

15. Seizing on Interstate Commerce Commission figures for 1982 limited to Class I and Class II carriers (i.e., those with revenues above $5,000,000 or between $1,000,000 and $4,999,999), in which classifications the total number of vehicles is 252,746, the defendants compare the $25 annual license fee to a gross revenue per vehicle in such classifications in excess of $98,000. When, however, the gross expenses are subtracted and the same mathematical formula is used, the net revenue for each vehicle in such classification is approximately $1,750. This may explain why the local representative of Ryder P.E. National, Inc., testified that his organization intended to embargo further operations in New Hampshire if the validity of Chapter 393 was upheld. His employer is a Class I carrier which operates in all 48 continguous states, Puerto Rico, and the Virgin Islands, with 16,000 employees, 277 terminals, 6000 tractor units, and 17,000 trailer units.

16. Additionally, part 2, article 6-a, of the New Hampshire Constitution requires that all funds accruing from motor vehicle registration fees, licenses, or fuel taxes be used exclusively for construction, reconstruction, and maintenance of highways and for no other purposes. Thus, all vehicles which pay taxes on either gasoline or diesel fuel contribute directly through such taxes to the upkeep of the highways which they use.

17. Defendants argue that the unilateral action of the carriers in failing to license all vehicles which might possibly enter New Hampshire cannot be used to satisfy the claim of preemption. This argument overlooks the fact that it is the actions of the shippers (largely without the state of New Hampshire) and their consignees (largely within the state of New Hampshire) that trigger the shipment of hazardous wastes and materials, but it is the carriers who must often pick up and haul such shipments on short notice who become faced with the delays imposed by the licensing fee requirements of Chapter 393. It is such delays, which are contrary to the clear mandate of HMTA, that the Court finds and rules to require preemption.

18. The state of Vermont, which borders New Hampshire on the west, has passed retaliatory legislation which, if Chapter 393 is upheld as to validity, will impose a similar $25 fee on transporters of hazardous materials and wastes. Vermont's statute and regulations are set forth in Appendices A and B to the Agreed Statement of Facts. It is worthy of note that, although Chapter 393 purports to contain a provision requiring the New Hampshire Department of Safety to confer with neighboring states with regard to the important problem of transport of hazardous wastes and materials, the evidence presented to this Court was that no attempt was or has been made to confer with bordering states (which include Maine and Massachusetts, in addition to Vermont) with regard to this important problem.

19. In light of the result herein reached, the Court does not consider the plaintiff's claims that the application of Chapter 393 is in derogation of their state and federal constitutional rights to due process and equal protection.

20. "For our purposes the decisive issue turns on the operating incidence of the tax." General Motors Corporation v. Washington, 377 U.S. 436, 441 (1964).

21. The lamentations of defendants to the effect that the federal government has failed to properly enforce HMTA by providing only one federal inspector (lacking police powers) in New Hampshire and has failed to otherwise fund federal requirements does not support the argument that Chapter 393 is constitutional. National legislative bodies, like their state counterparts, are known to pass but fail to enforce legislative requirements, and the remedy to such failures is to be found in the voting booth and not in the imposition of unconstitutional taxes. The Court also is puzzled by the contention that in the event of accident the funds derived from the substantial motor vehicle liability insurance mandated by DOT with respect to all transporters of hazardous materials would not be made available until after determination of legal fault somehow warrants the imposition of the fees detailed in Chapter 393. The New Hampshire courts have long imposed stringent limitations on the doctrine of strict liability. Bolduc v. Herbert Schneider Corporation, 117 N.H. 566, 374 A.2d 1187 (1977); Wood v. Public Service Company, 114 N.H. 182, 317 A.2d 576 (1974).

22. "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." U.S. CONST. amend. XI.