Q: What is the status and significance of the Washington, D.C., law excluding certain hazardous materials?
City Council of the District of Columbia, in an enactment said to be based on security considerations, banned the transportation of certain hazmat by rail and highway through an "exclusion zone" approximately five miles in diameter, with the Capitol at its center. Affected materials included threshold quantities of certain explosives, flammable gases and poison-inhalation hazards.
The agency that originally was asked to look at this local restriction by the affected railroad was the Surface Transportation Board. It said, in an opinion that was repeated after appeals, that the DC Act is not allowable under the system of nationally uniform hazmat transportation safety and security requirements envisioned by Congress when giving the U.S. Department of Transportation (DOT) primary regulatory authority.
That administrative decision is now before the federal courts for resolution, with many of the local arguments focused on their assessment of the adequacy of security requirements adopted by the DOT in Docket No. HM-232.
In addition to this Surface Transportation Board and related court action with respect to the rail impact of the DC Act, two other petitions raised the matter for administrative consideration by the DOT. Applications were filed by the American Trucking Associations and by the National Propane Gas Association (NPGA), asking the DOT to issue preemption determinations finding the DC Act unlawful in light of existing DOT routing requirements, and because such acts pose an unlawful obstacle to the purposes of Congress in establishing a uniform national system of controls.
These two applications were consolidated and addressed in a ruling issued on April 10 by the Federal Motor Carrier Safety Administration (FMCSA). That ruling provides a summary of the DC Act and the positions of the parties, citing many of the precedents in Congress and the courts supporting preemption of unilateral action by a single jurisdiction. Its conclusion: "Federal hazardous material transportation law preempts all provisions of the DC Act as it applies to motor carriers."
This law and howit is addressed by agencies and the courts is pertinent outside Washington and across the country because it is the first significant local hazmat transportation restriction since 9/11 that is based expressly on security concerns. Many urban areas in the U.S. are watching this activity very closely.
As one of the applicants is quoted in the ruling, "NPGA expresses concerns that the actions of individual jurisdictions, with thought of only their own constituents and not a broader regional or national view, will fragment the unified system into balkanized pockets of differing rules and restrictions." Avoidance of such a multiplicity of differing local requirements was the underpinning of the preemption provision in the original hazmatlaw in 1975, and remains valid today.
The courts still have not issued their final decision and, of course, every decision seems to prompt an appeal, but to date the agencies have been consistent in their rejection of the DC action. In communities where you operate terminals or facilities shipping or receiving hazmat of any quantity by any mode of transportation, be watchful for what often seem to be well-intentioned but in the bigger picture are counterproductive local security restrictions impacting the movement of hazardous material.
If you encounter such a restriction or one is being considered in your community, the language of the courts, the Surface Transportation Board and the FMCSA can be helpful to describe the downside to unilateral local action. If such enactments are adopted, these recent opinions also illustrate multiple legal paths through which their validity may be challenged.
Lawrence Bierlein is a partner with McCarthy, Sweeney & Harkaway, P.C. in Washington, D.C. His practice is devoted to issues involving transportation of hazardous materials. He can be reached at 202.775.5560, [email protected]