The Pipeline and Hazardous Materials Safety Administration (PHMSA) is considering an application from an industry association seeking to overturn an Oregon rule that imposes strict liability on transporters of hazardous waste. According to NORA, An Association of Responsible Recyclers, the federal hazardous material transportation rules preempt Oregon’s hazardous waste management rule because it is not possible to comply with both sets of regulations. NORA is a trade association representing about 360 companies engaged in recycling liquids, mainly used oil.
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Strict Liability
NORA notes that the Oregon rule adopts EPA’s standards for the management of hazardous wastes, including its generation, transportation, treatment, storage, recycling, and disposal. These standards impose strict liability on transporters. Strict liability is the legal responsibility for damages or injury, even if the person found strictly liable was not at fault or negligent. In contrast, the federal hazardous materials transportation law requires the transporter to exercise reasonable care.
What this boils down to, says NORA, is that under Oregon law, “the transporter exercising reasonable care may not rely on the information provided by the generator and instead must be held to a strict liability standard.” NORA explains that under Oregon’s interpretation, a transporter who satisfies the federal reasonable care standard would nonetheless be strictly liable for any mischaracterization of waste made by the generator. In other words, says NORA, it is not possible to comply with both the Oregon rule and the federal standard.
Not Substantially the Same
PHMSA notes that any requirement of a state, political subdivision of a state, or Indian tribe is preempted—unless the nonfederal requirement is authorized by another federal law or the Department of Transportation (DOT) grants a waiver of preemption—if (1) complying with the nonfederal requirement and the federal requirement is not possible; or (2) the nonfederal requirement, as applied and enforced, is an obstacle to accomplishing and carrying out the federal requirement.
Furthermore, DOT’s right to preemption takes effect when the nonfederal requirement is not “substantially the same” as federal requirements covering five areas, including the designation, description, and classification of hazardous material. To be substantively the same, the nonfederal requirement must conform in every significant respect to the federal requirement. Only editorial and other similar de minimis differences are permitted.
Misclassification Encouraged
In addition to finding it not possible to comply with both sets of standards, NORA asserts that Oregon’s strict liability standard creates an obstacle for interstate transport and will encourage misclassification of hazardous material.
PHMSA will accept public comments on NORA’s application until March 10, 2017, and rebuttal comments until April 24, 2017. Following receipt of all comments, PHMSA chief counsel will render a determination on the application.
PHMSA’s notice was published in the January 24, 2017, FR.