Transport of Hazardous Substances

William L. Rosbe

William L. Rosbe is a partner with the Richmond, Virginia law firm of Hunton & Williams.

Discussion so far today has focused on the hazardous waste treatment, storage or disposal facility and onsite problems in siting a new facility. There has been very little consideration of transportation to and from the site, and this may become a major issue in siting a new hazardous waste disposal facility. The transportation question has at least two parts: actual and perceived risks. EPA Deputy Administrator Al Alm mentioned some actual transportation risks in discussing the recent study prepared for EPA that suggested that the risks associated with truck transport of hazardous wastes may be equal to, or greater than, the risks associated with the site itself. The study also reached the alarming conclusion that for every three truckloads of hazardous wastes transported, one drum is lost.

Perceived risks or the fear factor should also be considered. Citizen groups and local official will want to address the safety aspects of transportation and will expect participation, factual data, and assurances in response to their concerns.

Transporting hazardous waste to a new facility raises several issues. Some are common to other issues of facility siting, but many are unique to the transportation field. For instance, a patchwork of state, federal, and local laws and regulations overlap to make authority and control over transportation unclear.

I will address this topic by first listing the public's most commonly raised questions and concerns, then giving a brief summary of present law and regulations, next identifying problems with the present scheme, and finally suggesting possible solutions.

The first concern raised about transportation of hazarous waste is likely to be routing. The transportation equivalent to NIMBY (Not in My Backyard) is the Not-on-My-Street syndrome. A related concern is the hours and times of transport. The likelihood of accidents, spills and leaks, the precautions taken to prevent them, and proposals, to increase the emergency response capability of the transporter and community are also of issue. Concerns [15 ELR 10256] about midnight and enroute dumping will inevitably be raised. The community wants to know what wastes will be transported, in what containers, who the transporters are and what their safety records look like, what trucks will be used and how qualified the drivers are, and what maintenance program will be enforced. The answers to these questions pose further inquiries into what the community can do to protect its own interests, who is responsible for resonding to community concerns, how citizens and local government officials can participate in the process to ensure certain answers, and where local officials can obtain the expertise and funding to respond appropriately.

Just as in siting, transportation decisions are subject to a balancing of costs and benefits. When siting a facility, it is clear that the people living nearby — and perhaps a neighboring community —will participate in the process. In routing and transportation, however, public participation is more difficult to define.Transport can occur along many different routes and involve many different communities. Which communities, localities or residents are to be permitted to voice their concerns? Will they receive sufficient notice and opportunity to participate in the process? As to transportation, the siting process often pits local groups against one another. All of those living along proposed routes want the transportation to be safe, but they disagree on which route should be selected. Such conflicts can extend beyond the state when waste crosses state lines before reaching the site.

Laws discussing hazardous waste transportation and conflict resolution between federal, state, and local restrictions are substantial. Under RCRA and the Hazardous Materials Transportation Act,¹ EPA and the Department of Transportation (DOT) regulate the transportation of hazardous wastes. Regulations established pursuant to these statutes set detailed safety standards for the types of containers that can be used and placarding, but have little to say about emergency response, and are virtually silent on route selection. In addition, federal law preempts inconsistent state and local transportation laws.Regulation mechanisms are well established, but the relevant case law focusing on routing, timing, pre-notification, and other restrictions is murky, with decisions coming down on all sides. As a result, the patchwork of state and local bans or restrictions may have a chilling effect on uniform solutions to transportation problems.

For the most part, state laws and regulations on hazardous waste transportation incorporate or make reference to federal standards. Like federal law, state siting laws have very little to say about transportation or the participation of communities along the route.

I have identified five major problems in the transportation phase of new facility siting processes. First, DOT and EPA have not addressed the key issue of routing. Only after routing is decided can the focus turn to safety levels and emergency response.

The second problem is public participation. The concerns of those along a transport route are not considered because the siting process does not involve them. Insufficient notice is a significant factor in keeping public participation at a minimum.

A third problem is uncertainty. The case law and regulations are unclear as to who can regulate routing. Uncertainty leads to concern from local citizens and government, and additional stumbling blocks for the developer and transporters. The developer and transporter must be assured that if they fulfill all requirements they will receive authorization within a reasonable time.

The lack of a unified local voice is a fourth problem. Determining potential and alternate routes sets one group against another, making mediation or negotiation necessary. Negotiation becomes more difficult with many sides at the table, and representation of all factions is virtually impossible.

A fifth problem is timing. It is likely that transportation issues would be addressed after siting decisions are made. That is, only after a facility has resolved all of the siting issues and has received the necessary RCRA permits, and the trucks are ready to roll, would the transportation issues be addressed. At that time, agreement would be very difficult to reach.

I suggest three approaches for resolving these problems. One is to leave the system as it is. Safety standards, such as the type of containers to be used, are clear and enforceable, but safety standards alone have proven insufficient to insure safe transportation of hazardous wastes. Emergency response is only marginally addressed, routing hardly at all, and federal mechanisms for conflict resolution among federal, state, and local requirements are inadequate. Public notice procedures drive localities to pass ordinances restricting or even banning transportation of hazardous waste through a community. Another solution must be found.

A second approach could be based on that developed by the Department of Transportation (DOT) in addressing the transportation of radioactive materials under the Hazardous Materials Transportation Act. Local bans and restrictions on transportation of radioactive materials had increased to the point where transporting radioactive materials had become nearly impossible. The piecemeal approach, under which each locality or state was permitted to build its own barriers, did not work. Some national uniformity was necessary, and DOT had to react in order to preserve consistency and allow materials to be transported.

DOT recognized that routing is a site-specific question and that Washington is not capable of determining the best route to a particular site; a local voice is required. DOT therefore devised a scheme for radioactive material transportation in which routing decisions are made by states, but under procedures that thoroughly involve local officials and citizens and also adhere to national guidelines. Route restrictions that are not site-specific are preempted at the federal level, as are pre-notification, curfew, special personnel or equipment requirements. Where large quantities of radioactive material are to be shipped, an established preferred route procedure² must be followed. With smaller shipments, a carrier may choose its own route based on the risk factors.

DOT weighed the advantages and disadvantages of federal, state, and local responsibility for routing decisions. Natinal uniformity is desirable, but a federal agency clearly cannot make site-specific routing decisions. The locality already holds the primary responsibility for protecting the health and welfare of its citizens, knows the site specifics best, and is most directly affected. However, staffing, [15 ELR 10257] expertise and funding restrictions, local autonomy, and a narrow perspective make local control virtually impossible. Based on these considerations, DOT chose the middle ground — state control. Despite being distrusted by many localities, the states have a broader perspective, more resources and expertise, and are accustomed to working with both federal and local entities. The scheme is now being implemented, and no determination of its success has been made.

The third approach, and my preference, builds upon the first two. Safety and emergency response questions should be handled at the federal level, as they are now, but routing decisions are of state and local concern. The routing method used today in siting new facilities is clearly inadequate, and sole federal or local decision-making will not work. DOT's approach to radioactive materials is basically sound, and addresses these limitations, but should be strengthened. Detailed federal guidelines for selecting preferred routes should be generated to assist the states and localities in choosing preferred routes. Federal minimum procedural requirements must be established describing appropriate uses of carrots and sticks in achieving local approval. Meaningful participation of those affected is essential. It is difficult to involve local communities at the outset of the siting process and to get them to participate in routing decisions, but it must be done. Educational programs should also be instituted. The affected localities should be assured of benefits such as receiving additional state highway or transporter fees. A state veto of local routing decisions should be included. Finally, transportation issues should be resolved along with the other siting issues in the siting proceeding.

Discussion

PARTICIPANT: Have recent cases addressed potential chemical spills in the transportation of hazardous materials?

ROSBE: Recent suits against transporters or operators involve transporting compressed gas in cities such as New York, Providence, and Boston. This is understandable given the prevalence of fears that gas will explode in a highly populated area. Chemical spills have not received the same attention, though, and I am not sure why. With rapidly expanding media coverage, however, I am sure we will see increased concern and active opposition to the transportation of hazardous waste materials.

PARTICIPANT: What are the parameters of state authority in deciding transportation routes? Should the state be limited to any specific radius or distance from a facility in imposing its regulations?

ROSBE: DOT introduced the notion of preferred routes and limited federal regulation of interstate highways and necessary connectors between the interstate and the disposal site. Perhaps the states should draw the line here, and restrict their jurisdiction as a matter of policy, so as not to impinge on federal regulation of transportation along the interstate highways.

PARTICIPANT: From your knowledge of transporting nuclear materials, what is the feasibility of using transportation fees and insurance coverage to enforce minimum safety requirements and encourage routes and means of transport acceptable to local communities?

ROSBE: These methods are more difficult to apply to the transportation of hazardous waste because of the large number of transporters and different substances and rates possible. An argument can be made that routing restrictions would only apply to the transportation of large quantities of wastes or large trucks, but this would probably not satisfy the locality. I have not considered the insurance aspect. Whether transporters of hazardous waste should be required to carry insurance comparable to that required under RCRA for facilities is certainly a question worth considering.

PARTICIPANT: Do you know of any federal commerce law that would prevent a state or local government from regulating routing once the shipment leaves the interstate or local access?

ROSBE: If a local routing restriction is clearly inconsistent with a federal requirement, it is preempted. The Hazardous Materials Transportation Act allows DOT to grant a waiver of preemption of an inconsistent requirement if (1) the protection is at least as adequate as under the federal scheme, and (2) the burden on interstate commerce is not unreasonable. Balancing local interests and federal or state interference with interstate commerce is provided for. There may be a more practical answer to your question, though. Under this scheme, DOT is strongly encouraging that preferred route decisions be made by states with a substantial local involvement. It appears to me that, since the federal government is already involved, preemption is not a problem.

1. 49 U.S.C. §§ 1801-1812.

2. Preferred routes are either interstate routes or state-designated routes.