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PHMSA Rejects Petition on Oregon Hazardous Waste Management Reg

PHMSA Rejects Petition on Oregon Hazardous Waste Management Reg

NORA applied to PHMSA for a determination that HMTA preempts Oregon Administrative Rule as applied to transporters of hazardous waste.

The Pipeline and Hazardous Materials Safety Administration (PHMSA) has rejected an application from NORA, an Association of Responsible Recyclers, petitioning for an administrative determination that the Hazardous Materials Transportation Act (HMTA) preempts an Oregon hazardous waste regulation.

According to a filing in the Federal Register, NORA applied to PHMSA for a determination that HMTA preempts Oregon Administrative Rule as applied to transporters of hazardous waste. Specifically, NORA states that the Oregon Environmental Quality Commission (OEQC) interprets the Oregon regulation—which adopts certain regulations of the U.S. Environmental Protection Agency (EPA), including EPA's regulation requiring transporters to receive a manifest before transporting hazardous waste—as imposing a strict liability standard on transporters of hazardous waste.

According to NORA, 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.” PHMSA invited public comment on NORA's application in January 2017. PHMSA has concluded that it lacks authority with respect to NORA's application, and therefore rejected the petition.

The legal framework that governs hazardous waste consists of overlapping federal and state authority. At the federal level, EPA, under authority granted by the Resource Conservation and Recovery Act, has promulgated regulations to control hazardous waste. This includes the generation, transportation, treatment, storage and disposal of hazardous waste. Any state may seek EPA authorization to administer and enforce a hazardous waste program. In Oregon, EPA has authorized the state to administer its own hazardous waste program, which it does through the Department of Environmental Quality and the OEQC.

PHMSA has the authority under the HMTA to preempt state law. Generally, the HMTA preemption standards preclude non-federal governments from imposing requirements applicable to hazardous materials transportation if (1) complying with the non-federal requirement and the federal requirement is not possible or (2) the non-federal requirement, as applied and enforced, is an obstacle to accomplishing and carrying out the federal requirement.

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