RSPA Preempts Another Local Rule
June 21, 2001
The Research and Special Services Administration has once again asserted its authority over hazardous materials transportation, overturning a Cleveland rule limiting the movement of certain radioactive materials in the downtown area.
While the Cleveland case is quite narrow, RSPA’s stance has broader implications.
Provisions in the Hazardous Materials Act basically say that non-federal rules concerning hazardous materials transportation are preempted if they’re not substantially the same as federal regulations or not authorized by another federal law or by a Department of Transportation waiver.
RSPA, which is a DOT agency, recently overturned a New Jersey rule regarding the transportation of blasting caps. In that decision, it noted that many states and localities have enacted laws which vary from federal hazmat transportation laws, “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.”
RSPA made a similar argument in last week’s proposal to include loading, unloading, and storage requirements in federal hazmat transportation regulations. (See "New Rules Would Officially Give RSPA Authority Over Hazmat Loading/Unloading")
This summer, a District Court of Appeals will consider the preemption question in a case involving the state of Tennessee. That case, initiated by the American Trucking Assns., asserts that the state’s $650 annual hazardous waste transporter fee violates the Act’s fairness requirement because it is not apportioned. It should therefore be preempted. Tennessee maintains that RSPA’s preemption process is the same as a civil suit, thus the state is protected by sovereign immunity. A district court sided with ATA but the state appealed that ruling.