Analysis of the Preemptive Effect of Federal Hazardous Material Laws on Virginia's Bridge-tunnel Regulations: Technical Assistance Report

About the report:

In May 1988, the Virginia Department of Transportation (VDOT) adopted regulations that govern the transportation of hazardous materials through seven highway tunnel facilities. Recently, the validity of these regulations have been called into question on two separate grounds. First, since the federal government has been active in regulating the transportation of hazardous materials, the Commerce and Supremacy Clauses of the U. S. Constitution may preclude states from adopting hazardous material transportation regulations. Second, regulations promulgated under the Hazardous Materials Transportation Act (HMTA) of 1975 may preclude state regulatory activity in the hazardous material transportation area. This study evaluates the legality of the VDOT tunnel regulations in light of the above challenges to their validity. As to the first challenge to the VDOT regulations, it is highly unlikely a court would find the regulations preempted. VDOT's regulations, however, are more problematic when tested against the preemption provisions outlined in the HMTA. The HMTA expressly preempts state regulations which: 1. make compliance with the federal regulations an impossibility; 2. are an obstacle to the accomplishment of the federal regulations; or 3. which are preempted under 49 App. U.S.C. 1804(a)(4) (which preempts state regulations that deal with a subject covered by the HMTA and which are not substantively identical to the HMTA provisions) or 49 App. U.S.C. 1804(b) (which excludes certain state regulations that deal with hazardous material routing). The analysis conducted in this study seems to indicate that the HMTA preempts VDOT's attempt to regulate hazardous material shipments through the state's tunnels. However, the HMTA also includes a number of exceptions to the general preemption rules. One of these regulations, 49 C.F.R. 177.810 (1992) provides that: nothing contained in [the regulations promulgated under the HMTA] shall be so construed as to nullify or supersede regulations established...under authority of State statute...regarding the kind, character, or quantity of any hazardous material permitted by such regulations to be transported through any urban vehicular tunnel used for mass transportation. In summary, the VDOT tunnel regulations are almost certainly preempted to the extent they apply to non-urban tunnels, and may further be preempted to the extent they reclassify hazardous materials. Consequently, it is recommended that VDOT submit its regulations to the Research and Special Programs Administration (RSPA) of the Department of Transportation for a preemption determination.

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