On July 17, the U.S. Department of Transportation (DOT), Washington, D.C., issued its first preemption determination, essentially invalidating the implementation of a local Pennsylvania ordinance regarding the transport of infectious wastes. Currently, the locality has filed a petition for reconsideration. However, issues raised in the case are noteworthy.
In fall 1999, the borough of Morrisville, near Philadelphia, issued an ordinance establishing its own definitions for medical waste, requiring manifests and creating routing restrictions. A medical waste disposal facility, Med/Waste Inc., Miami Lakes, Fla., claimed that the ordinance denied access to one of its facilities, so Med/Waste filed a preemption determination with the DOT.
The Medical Waste Institute (MWI), a policy-making group within the National Solid Wastes Management Association (NSWMA) and the Waste Equipment Technology Association (WASTEC), both Washington, D.C. based, filed comments providing the DOT with the necessary data and legal analysis to block the new law.
Not only was a MWI member being denied access to its facility, but there also were serious implications for all U.S. medical waste disposal companies.
The federal Hazardous Materials Transportation Act (HMTA) was designed to provide one set of rules — one stream of commerce — for moving hazardous materials such as regulated medical waste within the United States.
During a preemption determination, the DOT reviews state and local laws to decide whether they are substantially different or whether they are an obstacle to the national rules and are, thus, invalid. The review process differs from environmental, health and safety regulations. Generally, with such regulations, a state and local government may issue rules that are equal to or more stringent than federal rules. The DOT has more exclusive jurisdiction over hazardous materials transportation.
Unless the DOT grants a waiver or another federal agency authorizes local action, a state or local law that is not “substantively the same” as a provision in federal hazardous material law or applicable regulation is preempted. Specific areas of DOT's preemptive authority include the description and classification of hazardous materials, packaging requirements, preparation and use of shipping documents, and written emergency response reporting.
Despite Congress' intent for one commerce system, state and local governments often believe that the Resource Conservation and Recovery Act (RCRA) allows them to regulate transportation. When RCRA was enacted, Congress also created the Medical Waste Tracking Act, a pilot program under which the U.S. Environmental Protection Agency (EPA), Washington, D.C., was to determine whether medical waste should be classified as hazardous. The EPA decided not to regulate medical waste under RCRA, so the program died in 1991.
RCRA specifically carves out transportation requirements from the EPA's authority, although the agency may notify the DOT to resolve transportation problems.
Local governments also assert that the DOT does not have jurisdiction over intrastate highways. However, under HMTA, Congress gave the DOT jurisdiction, and the DOT issued a rule in Jan. 1997 extending the hazardous materials regulations to intrastate commerce. There are some exceptions to the rule, but none allow local governments to control transportation.
A state may establish routing restrictions, but only if federal procedures are followed. These procedures include proof that the routing enhances public safety; a public notice with a 30-day comment period that may include a hearing; and submitting the routing restriction to the DOT for publication in the Federal Register.
Under Pennsylvania law, localities may set these restrictions. However, Morrisville failed to provide the DOT with any evidence that the federal procedures were followed in establishing its routing restriction.
Neither this preemption determination nor HMTA belittle the importance of state or local government rights to protect residents. Instead, local government leaders are forced to carefully determine the problem requiring resolution and consider all the possible solutions. Similar to MWI and all other U.S. residents, local leaders can ask the DOT for an exemption or can petition for a rule-making to resolve a perceived hazardous materials transportation problem.
Alice Jacobsohn is EIA's director of public affairs and industry research and manager of NSWMA's Medical Waste Institute. Phone (202) 244-4700. E-mail: [email protected].