[Federal Register Volume 65, Number 222 (Thursday, November 16, 2000)]
[Notices]
[Pages 69365-69370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29400]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

[Docket No. RSPA-00-8026 (PDA-26(R))]


Application by Boston & Maine Corporation for a Preemption 
Determination as to Massachusetts' Definitions of Hazardous Materials

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Public notice and invitation to comment.

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SUMMARY: Interested parties are invited to submit comments on an 
application by Boston & Maine Corporation for an administrative 
determination whether Federal hazardous materials transportation law 
preempts the Commonwealth of Massachusetts' definitions of ``hazardous 
materials'' as applied to hazardous materials transportation.

DATES: Comments received on or before January 2, 2001, and rebuttal 
comments received on or before February 14, 2001, will be considered 
before an administrative ruling is issued by RSPA's Associate 
Administrator for Hazardous Materials Safety. Rebuttal comments may 
discuss only those issues raised by comments received during the 
initial comment period and may not discuss new issues.

ADDRESSES: The application and all comments received may be reviewed in 
the Dockets Office, U.S. Department of Transportation, Room PL-401, 400 
Seventh Street, SW, Washington, DC 20590-0001. The application and all 
comments are also available on-line through the home page of DOT's 
Docket Management System, at ``http://dms.dot.gov.''
    Comments must refer to Docket No. RSPA-00-8026 and may be submitted 
to the docket either in writing or electronically. Send three copies of 
each written comment to the Dockets Office at the above address. If you 
wish to receive confirmation of receipt of your written comments, 
include a self-addressed, stamped postcard. To submit

[[Page 69366]]

comments electronically, log onto the Docket Management System website 
at http://dms.dot.gov, and click on ``Help & Information'' to obtain 
instructions.
    A copy of each comment must also be sent to: (1) Robert B. 
Culliford, Esq., Corporate Counsel, Boston & Maine Corporation, Iron 
Horse Park, North Billerica, MA 01862, and (2) Ginny Sinkel, Esq., 
Assistant Attorney General, Commonwealth of Massachusetts, Office of 
the Attorney General, One Ashburton Place, Boston, Massachusetts 02108-
1698. A certification that a copy has been sent to these persons must 
also be included with the comment. (The following format is suggested: 
``I certify that copies of this comment have been sent to Mr. Culliford 
and Ms. Sinkel at the addresses specified in the Federal Register.'')
    A list and subject matter index of hazardous materials preemption 
cases, including all inconsistency rulings and preemption 
determinations issued, are available through the home page of RSPA's 
Office of the Chief Counsel, at ``http://rspa-atty.dot.gov.'' A paper 
copy of this list and index will be provided at no cost upon request to 
Ms. Christian, at the address and telephone number set forth in FOR 
FURTHER INFORMATION CONTACT below.

FOR FURTHER INFORMATION CONTACT: Karin V. Christian, Office of the 
Chief Counsel, Research and Special Programs Administration (Tel. No. 
202-366-4400), Room 8407, U.S. Department of Transportation, 
Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Application for a Preemption Determination:

    The Boston & Maine Corporation (Boston & Maine) has applied for a 
determination that Federal hazardous material transportation law, 49 
U.S.C. 5101 et seq., preempts the Massachusetts General Laws chapter 
21K, section 1 and chapter 21E, section 2 definitions of hazardous 
materials. Boston & Maine asserts that the Massachusetts definition of 
hazardous materials is not ``substantively the same'' as the 
definitions of hazardous materials in the hazardous materials 
regulations (49 CFR Parts 171-180) issued under the Federal hazardous 
materials transportation law, 49 U.S.C. 5101 et seq.
    In addition, Boston & Maine requests a determination that the 
regulation of hazardous materials in transportation in commerce based 
on a definition of hazardous materials that is not substantively the 
same as the designation by the Secretary of Transportation is an 
obstacle to accomplishing and carrying out the Federal hazardous 
materials transportation law.
    In an August 25, 2000 letter to RSPA's Office of the Chief Counsel, 
the Massachusetts Office of the Attorney General responded to Boston & 
Maine's application on behalf of the Massachusetts Department of Fire 
Services. The Office of the Attorney General informed RSPA that Boston 
& Maine had filed a complaint against the Massachusetts Department of 
Fire Services in the Massachusetts Superior Court raising the same 
issue as in its preemption determination application, i.e., whether 
Massachusetts General Law chapters 21K and 21E are preempted by Federal 
law. Massachusetts requested that RSPA not act on Boston & Maine's 
application until the state judicial proceedings are resolved.
    RSPA reviewed Massachusetts' request and Boston & Maine's response. 
On September 13, 2000, RSPA sent a letter to both parties stating that 
RSPA has decided to proceed with docketing and taking action on the 
application for preemption.

Boston & Maine Application

    The text of Boston & Maine's application and a list of the 
attachments to the application are set forth in Appendix A to this 
notice. A paper copy of the attachments to Boston & Maine's application 
(which have been placed in the public docket) will be provided at no 
cost upon request to Ms. Christian, at the address and telephone number 
set forth in FOR FURTHER INFORMATION CONTACT above.
    In its application, Boston & Maine challenges the following:

    (1) Massachusetts General Laws chapter 21K, Sec. 1 that defines 
hazardous material as follows:

    ``Hazardous material'', material including, but not limited to, 
material, in whatever form which, because of its quantity, 
concentration, chemical, corrosive, flammable, reactive, toxic, 
infectious or radioactive characteristics, either separately or in 
combination with a substance, constitutes a present or potential 
threat to human health, safety or welfare or to the environment when 
improperly stored, treated, transported, disposed of, used or 
otherwise managed. Hazardous materials shall include, but not be 
limited to, oil and all substances which are included under 42 USC 
9601(14).

    (2) Massachusetts General Laws chapter 21E, Sec. 2 that defines 
hazardous material as follows:

    ``Hazardous material'', material including but not limited to, 
any material, in whatever form, which because of its quantity, 
concentration, chemical, corrosive, flammable, reactive, toxic, 
infectious or radioactive characteristics, either separately or in 
combination with any substance or substances, constitutes a present 
or potential threat to human health, safety, welfare, or to the 
environment, when improperly stored, treated, transported, disposed 
of, used, or otherwise managed. The term shall not include oil. The 
term shall also include all those substances which are included 
under 42 USC 9601(14), but it is not limited to those substances.

    In its application, Boston & Maine asserts that the Massachusetts 
regulations greatly expand the Federal designation of hazardous 
materials to include substances that have not been designated as 
``hazardous'' materials by the Secretary of Transportation. Boston & 
Maine states that Massachusetts' definitions do not conform in every 
significant respect to the Federal definition because the State law 
definitions would include materials not determined by the Secretary to 
be capable of posing an unreasonable risk to health, safety, and 
property when transported in commerce.
    Boston & Maine also asserts that Massachusetts' definitions of 
hazardous materials create an obstacle to the efficient and uniform 
application of the Federal hazardous materials transportation law. 
Boston & Maine states that when State regulations designate materials 
as ``hazardous'' that are not included as hazardous materials by the 
Secretary of Transportation, the discrepancy subjects interstate 
carriers to undue burdens and creates obstacles to uniform regulation 
of transportation of hazardous materials in interstate commerce. Boston 
& Maine argues that an overly broad State designation of ``hazardous'' 
materials potentially subjects common carriers to a multitude of 
different regulations because each State could have different standards 
requiring additional packaging requirements, labeling, storage, and 
documentation for substances based upon the designation of 
``hazardous'' material adopted by each individual State.
    With its August 25, 2000 letter to RSPA, Massachusetts attached a 
copy of Boston & Maine's January 20, 2000 First Amended Complaint (the 
Complaint) filed in Massachusetts Superior Court. In the Complaint, 
Boston & Maine described the action as one to correct errors of law in 
an administrative proceeding by the Department of Fire Services.
    In the Complaint's factual background, Boston & Maine described a 
June 27, 1999 freight train derailment on Boston & Maine property. 
Boston & Maine stated that as a result of the

[[Page 69367]]

derailment, approximately five cars leaked materials, including latex, 
terephthalic acid, polyethylene, polypropene, and ``distillers'' grain 
onto the ground and into the river adjacent to the railroad tracks. 
Boston & Maine stated that immediately after the derailment, it 
implemented an emergency response plan, including notification of a 
private contractor and licensed site professional to contain the 
release of materials from the five leaking rail cars. Boston & Maine 
stated that the private contractor was licensed to respond to all 
releases of material, whether the materials were considered 
``hazardous'' or not.
    The Complaint stated that shortly after the derailment, the Fire 
Department of the town of Charlemont, Massachusetts, responded to the 
scene and contacted the regional Massachusetts Hazardous Materials 
Response Team (Response Team) under the belief that hazardous materials 
were being released or threatened to be released.
    Boston & Maine stated that the Response Team arrived at the scene 
and prevented Boston & Maine from properly containing the materials 
being released from the rail cars. Boston & Maine stated that the 
Response Team insisted that Boston & Maine produce documentation 
proving that the materials being released were not ``hazardous 
materials.'' Boston & Maine stated that the demand for information 
regarding the leaking materials was made despite the fact that none of 
the leaking cars were placarded or were required to be accompanied by 
``shipping papers'' because none of the materials were considered 
``hazardous.'' Boston & Maine stated that when it produced additional 
documentation to prove that no release or threat of release of 
``hazardous materials'' existed, the Response Team released control of 
the scene to Boston & Maine.
    The Complaint stated that Boston & Maine received an invoice from 
Massachusetts seeking to recover the costs incurred by the Response 
Team on June 27, 1999. On September 7, 1999, Boston & Maine filed a 
Petition for Review of the Statement of Costs. On November 19, 1999, 
Massachusetts denied Boston & Maine's Petition for Review.
    In the Complaint, Boston & Maine asserts that the Massachusetts 
Department of Fire Services had no legal authority to respond to the 
June 27, 1999 derailment because the State law designations of 
``hazardous'' materials are preempted by Federal law and therefore has 
no legal authority to recover its costs for the response to the 
derailment on June 27, 1999 pursuant to Massachusetts General Laws 
Chapter 21K, Section 5(b). Boston & Maine states there was no release 
or threat of release of a federally designated, described, or 
classified ``hazardous material'' pursuant to the regulations 
promulgated by the Secretary of Transportation. Boston & Maine argued 
that the fact that the train crew did have immediate possession of the 
proper ``shipping papers'' and placards for other materials in the 
train, but no ``shipping papers'' or placards for the materials in the 
cars that were leaking, was proof that the leaking materials did not 
meet the Federal definition of ``hazardous materials.''
    The following materials have been placed in the public docket of 
this proceeding:

Boston & Maine's August 16, 2000 application for preemption 
determination and attachments.
Massachusetts August 25, 2000 letter with attachment, requesting that 
RSPA decline to take action on Boston & Maine's application until state 
judicial proceedings are resolved. The First Amended Complaint filed by 
Boston & Maine in Massachusetts' Superior Court is attached to this 
letter.
Boston & Maine's September 5, 2000 response to Massachusetts' request 
that RSPA decline to take action on its application.
RSPA's September 13, 2000 letter informing both parties that the 
Associate Administrator had decided to proceed to take action on Boston 
& Maine's application.

    These documents may be reviewed in the Dockets Office, U.S. 
Department of Transportation, Room PL-401, 400 Seventh Street, SW 
Washington, DC 20590-0001. These documents are also available on-line 
through the home page of DOT's Docket Management System, at ``http://dms.dot.gov.''

II. Federal Preemption

    Section 5125 of Title 49 U.S.C. contains several preemption 
provisions that are possibly relevant to Boston & Maine's application. 
Subsection (a) provides that--in the absence of a waiver of preemption 
by DOT under section 5125(e) or specific authority in another Federal 
law--a requirement of a State, political subdivision of a State, or 
Indian tribe is preempted if--

    (1) complying with a requirement of the State, political 
subdivision or tribe and a requirement of this chapter or a 
regulation issued under this chapter is not possible; or
    (2) the requirement of the State, political subdivision, or 
Indian tribe, as applied or enforced, is an obstacle to 
accomplishing and carrying out this chapter or a regulation 
prescribed under this chapter.

These two paragraphs set forth the ``dual compliance'' and ``obstacle'' 
criteria that RSPA had applied in issuing inconsistency rulings prior 
to 1990, under the original preemption provision in the Hazardous 
Materials Transportation Act (HMTA). Public Law 93-633 section 112(a), 
88 Stat. 2161 (1975). The dual compliance and obstacle criteria are 
based on U.S. Supreme Court decisions on preemption. Hines v. 
Davidowitz, 312 U.S. 52 (1941); Florida Lime & Avocado Growers, Inc. v. 
Paul, 373 U.S. 132 (1963); Ray v. Atlantic Richfield, Inc., 435 U.S. 
151 (1978).
    Subsection (b)(1) of 49 U.S.C. 5125 provides that a non-Federal 
requirement concerning any of the following subjects, that is not 
``substantively the same as'' a provision of Federal hazardous material 
transportation law or a regulation prescribed under that law, is 
preempted unless it is authorized by another Federal law or DOT grants 
a waiver of preemption:

    (A) the designation, description, and classification of 
hazardous material.
    (B) the packing, repacking, handling, labeling, marking, and 
placarding of hazardous material.
    (C) the preparation, execution, and use of shipping documents 
related to hazardous material and requirements related to the 
number, contents, and placement of those documents.
    (D) the written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material.
    (E) the design, manufacturing, fabricating, marking, 
maintenance, reconditioning, repairing, or testing of a packaging or 
a container represented, marked, certified, or sold as qualified for 
use in transporting hazardous material.

To be ``substantively the same,'' the non-Federal requirement must 
``conform[] in every significant respect to the Federal requirement. 
Editorial and other similar de minimis changes are permitted.'' 49 CFR 
107.202(d).
    These preemption provisions in 49 U.S.C. 5125 carry out Congress's 
view that a single body of uniform Federal regulations promotes safety 
in the transportation of hazardous materials. In considering the HMTA, 
the Senate Commerce Committee ``endorse[d] the principle of preemption 
in order to preclude a multiplicity of State and local regulations and 
the potential for varying as well as conflicting regulations in the 
area of hazardous materials transportation.'' S. Rep. No. 1102, 93rd 
Cong. 2nd Sess. 37 (1974). When it amended the HMTA in 1990, Congress 
specifically found that:


[[Page 69368]]


    (3) many States and localities have enacted laws and regulations 
which vary from Federal laws and regulations pertaining to the 
transportation of hazardous materials, thereby creating the 
potential for unreasonable hazards in other jurisdictions and 
confounding shippers and carriers which attempt to comply with 
multiple and conflicting registration, permitting, routing, 
notification, and other regulatory requirements,
    (4) because of the potential risks to life, property, and the 
environment posed by unintentional releases of hazardous materials, 
consistency in laws and regulations governing the transportation of 
hazardous materials is necessary and desirable,
    (5) in order to achieve greater uniformity and to promote the 
public health, welfare, and safety at all levels, Federal standards 
for regulating the transportation of hazardous materials in 
intrastate, interstate, and foreign commerce are necessary and 
desirable.

Pub. L. 101-615 section 2, 104 Stat. 3244. A Federal Court of Appeals 
has found that uniformity was the ``linchpin'' in the design of the 
HMTA, including the 1990 amendments that expanded the original 
preemption provisions. Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 
1571, 1575 (10th Cir. 1991). (In 1994, Congress revised, codified and 
enacted the HMTA ``without substantive change,'' at 49 U.S.C. Chapter 
51. Public Law 103-272, 108 Stat. 745.)

III. Preemption Determinations

    Under 49 U.S.C. 5125(d)(1), any directly affected person may apply 
to the Secretary of Transportation for a determination whether a State, 
political subdivision or Indian tribe requirement is preempted. The 
Secretary of Transportation has delegated authority to make 
determinations of preemption that concern highway routing to FMCSA and 
those concerning all other hazardous materials transportation issues to 
RSPA. 49 CFR 1.53(b) and 1.73(d)(2) (as added October 9, 1999, 64 FR 
56720, 56721 [Oct. 19, 1999], and revised January 1, 2000, 65 FR 220, 
221 [Jan. 4, 2000]).
    Section 5125(d)(1) requires that notice of an application for a 
preemption determination must be published in the Federal Register. 
Following the receipt and consideration of written comments, RSPA will 
publish its determination in the Federal Register. See 49 C.F.R. 
107.209(d), 397.211(d). A short period of time is allowed for filing of 
petitions for reconsideration. 49 C.F.R. 107.211, 397.223. Any party to 
the proceeding may seek judicial review in a Federal district court. 49 
U.S.C. 5125(f).
    Preemption determinations do not address issues of preemption 
arising under the Commerce Clause, the Fifth Amendment or other 
provisions of the Constitution or under statutes other than the Federal 
hazardous material transportation law unless it is necessary to do so 
in order to determine whether a requirement is authorized by another 
Federal law. A State, local or Indian tribe requirement is not 
authorized by another Federal law merely because it is not preempted by 
another Federal statute. Colorado Pub. Util. Comm'n v. Harmon, above, 
951 F.2d at 1581 n.10.
    In making preemption determinations under 49 U.S.C. 5125(d), RSPA 
is guided by the principles and policies set forth in Executive Order 
No. 13132, entitled ``Federalism'' (64 FR 43255 (August 4, 1999)). 
Section 4(a) of that Executive Order authorizes preemption of State 
laws only when a statute contains an express preemption provision, 
there is other clear evidence that Congress intended to preempt State 
law, or the exercise of State authority directly conflicts with the 
exercise of Federal authority. Section 5125 contains express preemption 
provisions, which RSPA has implemented through its regulations.

IV. Public Comments

    All comments should be limited to the issue of whether 49 U.S.C. 
5125 preempts the Commonwealth of Massachusetts' definitions of 
hazardous materials challenged by Boston & Maine. Comments should 
specifically address the preemption criteria detailed in Part II, 
above, and should include the following:

    (1) whether the term ``hazardous material'' in Massachusetts 
General Laws chapter 21K includes materials that are not defined as 
``hazardous materials'' in the HMR, 49 CFR 171.8 (examples?);
    (2) whether the term ``hazardous material'' in Massachusetts 
General Laws chapter 21K excludes materials that are defined as 
``hazardous materials'' in the HMR, 49 CFR 171.8 (examples?);
    (3) whether the term ``hazardous material'' in Massachusetts 
General Laws chapter 21E includes materials that are not defined as 
``hazardous materials'' under the HMR, 49 CFR 171.8 (examples?);
    (4) whether the term ``hazardous material'' in Massachusetts 
General Laws chapter 21E excludes materials that are defined as 
``hazardous materials'' in the HMR, 49 CFR 171.8 (examples?); and
    (5) whether and how the two cited Massachusetts definitions of 
``hazardous material'' are applied and enforced by Massachusetts 
with respect to transportation.

Persons intending to comment should review the standards and procedures 
governing consideration of applications for preemption determinations 
set forth at 49 CFR 107.201-107.211, and 397.201-397.211.

    Issued in Washington, DC on November 13, 2000.
Robert A. McGuire,
Associate Administrator for Hazardous Materials Safety.

Boston & Maine Corporation

August 16, 2000.
Associate Administrator for Hazardous Materials Safety
Research and Special Programs Administration, U.S. Department of 
Transportation, Washington, DC 20590-0001; Attention: Hazardous 
Materials Preemption Docket.

    Re: APPLICATION FOR PREEMPTION DETERMINATION

    Dear Sir/Madam: Please consider the attached Boston and Maine 
Railroad's Application for a Preemption Determination filed pursuant 
to 49 C.F.R. 107.203 for final determination by the Research and 
Special Programs Administration.
    Boston and Maine Railroad (hereinafter ``B&M'') disputes the 
enforcement of ``hazardous'' materials designations by the 
Commonwealth of Massachusetts under M.G.L. c.21K, and c.21E. B&M 
contends the Commonwealth is preempted from enforcing the statute by 
the Hazardous Materials Transportation Act (hereinafter ``HMTA'') 
laws because the ``hazardous'' materials designation is not 
substantively the same as HMTA regulations.
    The attached petition contains the following:

49 C.F.R. 107.203(b)(2): Text of the State Requirement;
49 C.F.R. 107.203(b)(3): Comparable Federal Hazardous Material 
Transportation Laws;
49 C.F.R. 107.203(b)(4): Explanation of Why the State Law Should Be 
Preempted;
49 C.F.R. 107.203(b)(5): Statement of How the State Regulations 
Affected Boston and Maine Railroad; and
49 C.F.R. 107.205(a): Certification of Notice Compliance.

    A copy of this application will be forwarded to each party 
subject to this ruling. Should you have any questions, please 
contact me at (978) 663-1029. Thank you for your attention to this 
matter.

      Sincerely,
Robert B. Culliford,
Corporate Counsel.
cc: Ginny Sinkel, Asst. Attorney General,
    Thomas Reilly, Attorney General.

49 C.F.R. 107.203(b)(2): Text of State Requirements

(Please see corresponding attached copies.)

    1. MGL C. 21K, section 1, definition
    2. MGL C. 21E, section 2, definition

49 C.F.R. 107.203(b)(3): Comparable Federal Hazardous Materials 
Transportation Laws

(Please see corresponding attached copies.)

Hazardous Materials Transportation Act (HMTA)

    1. 49 C.F.R. 107.202(b)(2)
    2. 49 C.F.R. 107.202(a)(1)
    3. 49 C.F.R. 107.202(d)
    4. 49 U.S.C. 5103(a)

[[Page 69369]]

    5. 49 C.F.R. 171.8
    6. 49 C.F.R. 172.101, App. A, List of Hazardous Substances and 
Reportable Quantities.

49 CFR 107.203(b)(4): Explanation of Why RSPA Should Issue Preemption 
Determination

    Pursuant to 49 C.F.R. 107.203, the applicant respectfully 
submits this application for a determination by the Research and 
Special Programs Administration (hereinafter ``RSPA'') that 
Massachusetts General Laws c. 21K, section 1, section 21E, and 
section 2 \1\ (see attached hereto), as these State laws apply to 
transportation in interstate commerce, are preempted by the 
Hazardous Materials Transportation Act, 49 U.S.C. 5101, et. seq. 
(hereinafter ``HMTA''). The basis for this request is that these 
statutes designate ``hazardous'' materials in a manner that is not 
substantively the same as the designation of ``hazardous'' materials 
in a manner that is not substantively the same as the designation of 
``hazardous'' materials promulgated by the Secretary of 
Transportation pursuant to his authority under the HMTA.\2\ (see 
attached hereto). In addition, the B&M also requests a determination 
that the regulation of transportation in interstate commerce by 
means of a designation of ``hazardous'' materials that is not 
substantively the same as the designation promulgated by the 
Secretary is an obstacle to accomplishing and carrying out the 
Hazardous materials transportation law.
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    \1\ MGL c. 21K, section 1, defines ``Hazardous'' Materials as 
follows: ``Hazardous material'', material including, but not limited 
to, material, in whatever form which, because of its quantity, 
concentration, chemical, corrosive, flammable, reactive, toxic, 
infectious or radioactive characteristics, either separately or in 
combination with a substance, constitutes a present or potential 
threat to human health, safety or welfare or to the environment when 
improperly stored, treated, transported, disposed of, used or 
otherwise managed. Hazardous materials shall include, but not be 
limited to, oil and all substances which are included under 42 
U.S.C. Sec. 9601(14)
    MGL c. 21E, section 2, defines ``Hazardous'' Materials as 
follows: ``Hazardous material'', material including but not limited 
to, any material, in whatever form, which, because of its quantity, 
concentration, chemical, corrosive, flammable, reactive, toxic, 
infectious or radioactive characteristics, either separately or in 
combination with any substance or substances, constitutes a present 
or potential threat to human health, safety, welfare, or to the 
environment, when improperly stored, treated, transported, disposed 
of, used, or otherwise managed. The term shall not include oil. The 
term shall not include oil. The term shall also include all those 
substances which are included under 42 U.S.C. Sec. 9601(14), but it 
is not limited to those substances.
    \3\ 49 U.S.C. 5103(a) states: Designating material as 
hazardous--The Secretary of Transportation shall designate material 
(including an explosive, radioactive material, etiologic agent, 
flammable or combustible liquid or solid, poison, oxidizing or 
corrosive material, and compressed gas) or a group or a class of 
material as hazardous when the Secretary decides that transporting 
the material in commerce in a particular amount and form may pose an 
unreasonable risk to health and safety of property.
    49 C.F.R. 171.8 defines ``Hazardous'' Materials as follows: 
Hazardous material means a substance or material, which has been 
determined by the Secretary of Transportation to be capable of 
posing an unreasonable risk to health, safety, and property when 
transported in commerce, and which has been so designated. The term 
includes hazardous substances, hazardous wastes, marine pollutants, 
and elevated temperature materials as defined in this section, 
materials designated as hazardous under the provisions of 
Sec. 172.101 of this subchapter, and materials that meet the 
defining criteria for hazard classes and divisions in part 173 of 
this subchapter.
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1. A Preemption Determination Should Be Issued in This Instance 
Because the Plain Language of the HMTA Expressly Preempts Any State 
Designation, Description and Classification of ``Hazardous'' 
Material That Is Not Substantively the Same as the Federal 
Designation Under the HMTA

    The Associate Administrator should issue a determination that 
M.G.L.A. c. 21K, section 1 and 21E, section 2 are preempted because 
the plain language of the HMTA expressly preempts any State 
designation of ``hazardous'' material when the non-Federal 
designation is not substantively the same as the Federal 
designation, unless the non-Federal designation is authorized by 
Federal law. 49 C.F.R. 107.202(a)(1).\3\ (see attached hereto). In 
this instance, 49 C.F.R. 107.202(d) defines ``substantively the 
same'' to mean ``that the non-Federal requirement conforms in every 
significant respect to the Federal requirement. Editorial and other 
similar de minimis changes are permitted.''
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    \3\ 49 C.F.R. 107.202(a)(1): Standards for determining 
preemption:
    (a): Except as provided in Sec. 107.221 and unless authorized by 
Federal law, any requirement of a State, political subdivision 
thereof or Indian tribe, that concerns one of the following subjects 
and that is not substantively the same as any provision of the 
Hazardous materials transportation law, this subchapter or 
subchapter C that concerns that subject, is preempted:
    (1) The designation, description, and classification of 
hazardous material.
---------------------------------------------------------------------------

    The Massachusetts designations of ``hazardous'' material in 
M.G.L. c. 21K, section 1 and c.21E, section 2, include, ``material, 
in whatever form which, . . . constitutes a present or potential 
threat to human health, safety, or welfare, or to the environment, 
when improperly stored, treated, transported, disposed of, used, or 
otherwise managed. Hazardous materials shall include, but not be 
limited to, all substances which are included under 42 U.S.C. 
9601(14).'' Mass. Gen. Laws c. 21K section 1, Mass. Gen. Laws c. 
21E, section 2 (emphasis added). The Massachusetts regulations 
greatly expand the Federal designation of ``hazardous'' materials to 
include substances that have not been designated as ``hazardous'' 
materials by the Secretary pursuant to 49 U.S.C. 5103(a) and 49 
C.F.R. 171.8. As a result, the State law designation of 
``hazardous'' materials does not conform in every significant 
respect to the Federal designation because these State law 
designations include materials not determined by the Secretary to be 
capable of posing an unreasonable risk to health, safety, and 
property when transported in commerce, and which have been so 
designated as ``hazardous'' materials by the Secretary. 49 C.F.R. 
171.8. Accordingly, the Massachusetts designations are not 
substantively the same as the Federal designation of ``hazardous'' 
materials. 49 C.F.R. 107.202(d). Therefore, in light of the fact 
that the application of these State law designations to 
transportation in interstate commerce is not authorized by Federal 
law, it is clear that these State statutes, as they apply to 
transportation in interstate commerce, are preempted.

2. A Preemption Determination Should Be Issued in This Instance 
Pursuant to 49 C.F.R. 107.202(b)(2) Because the State Law 
Designations of ``Hazardous'' Materials as Applied and Enforced 
Creates an Obstacle to Carrying Out the HMTA

    The Associate Administrator should also issue a determination 
that these State law designations are preempted pursuant to 49 C.F.R 
107.202(b)(2) \4\ (see attached hereto) because the designations 
contained therein create obstacles to the efficient and uniform 
application of the HMTA. The obstacle test as determined by the 
Supreme Court, examines whether the State law ``stands as an 
obstacle to the accomplishment and execution of the full purpose and 
objectives of Congress.'' Colorado Public Utilities Commission v. 
Harmon, 951 F.2d 1571, 1580 (10th Cir. 1991) (quoting Hillsborough 
County v. Automated Medic. Labs, 471 U.S. 707, 713, 105 S.Ct. 2371, 
2375, 85 L.Ed. 2d 714(1985)). The original intent of Congress in 
enacting the HMTA stressed the importance of uniform safety 
requirements in interstate transport of hazardous materials and 
authorized the Department of Transportation to preclude State and 
local regulations from creating conflicts and variances from Federal 
regulations. Colorado Public Utilities Comm. v. Harmon, 951 F.2d at 
1580 (analyzing Congressional intent through H.R. Rep No. 444 (Part 
1), 101st Cong., 2d Ses., at 22 (1990), and S.Rep. No. 449, 101st 
Cong., 2d Sess., at 2 (1990)).
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    \4\ 49 C.F.R. 107.202(b)(2) states the following:
    (b) Except as provided in Sec. 107.221 and unless otherwise 
authorized by Federal law, any requirement of a State or political 
subdivision or Indian tribe is preempted if--
    (2) The requirement of the State, political subdivision, or 
Indian tribe, as applied or enforced, is an obstacle to 
accomplishing and carrying out the Federal hazardous materials 
transportation law or regulations issued thereunder.
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    The regulations promulgated by the Secretary designating 
``hazardous'' materials include extensive lists of substances and 
quantities that fall under HMTA regulation. See 49 C.F.R. 107.101, 
Appendix A (attached hereto). Likewise, Massachusetts has also 
promulgated statewide regulation of ``hazardous'' materials under 
the designations found in M.G.L.A. c. section 21K, section 1 and c. 
21E, section 2.
    The Secretary is authorized to designate certain materials as 
``hazardous'' by 49 U.S.C. 5103(a). Pursuant to this authority, the 
Secretary has determined which materials are capable of posing an 
unreasonable risk to health, safety, and property when transported 
in commerce, and has promulgated regulations designating those 
materials as ``hazardous''. 49 C.F.R. 171.8.
    Where State regulations designate materials as ``hazardous'' 
that are not

[[Page 69370]]

included as materials designated ``hazardous'' by the Secretary, 
this discrepancy subjects interstate carriers to undue burdens and 
creates myriad obstacles to uniform regulation of transportation of 
those materials in interstate commerce. Here, the overly broad State 
designation of ``hazardous'' materials potentially subjects common 
carriers to a multitude of different regulations because each State 
could have different standards requiring additional packaging 
requirements, labeling, storage, and documentation for a host of 
substances based upon the designation of ``hazardous'' material 
adopted by each individual State.
    Subjecting the railroad and other interstate carriers to 
different designations in each State disrupts the congressional 
purpose of promoting uniform regulation of the safe transportation 
of hazardous materials under HMTA. RSPA should therefore issue a 
determination preempting the enforcement of M.G.L.A. c. 21K, section 
1, and c. section 21E, section 2, as they apply to transportation in 
interstate commerce, because the designations contained in these 
statutes are not authorized by Federal law, and create multiple 
obstacles to the uniform enforcement of HMTA and unduly burdens 
interstate transportation of hazardous materials.

49 CFR 107.203(b)(5): Statement of How the State Regulations Affect the 
Applicant

    The designation of ``hazardous'' contained State laws such as 
Mass. Gen. Laws Ann. c. 21K, section 1 and c. 21E, section 2, 
subjects the applicant to overly broad and disjointed regulation of 
transportation in interstate commerce by potentially requiring the 
applicant to adhere to markedly different regulations in each State 
in which it operates. Accordingly, subjecting the applicant to the 
different ``hazardous materials'' regulations and requirements of 
each State in which it operates would unduly burden interstate 
transport of materials by railroad in interstate commerce.

Respectfully submitted,

Robert B. Culliford,
James J. Steinkrauss,
Boston and Maine Corporation, Iron Horse Park, North Billerica, MA 
01862, (978) 663-1029.

[FR Doc. 00-29400 Filed 11-15-00; 8:45 am]
BILLING CODE 4910-60-P