Hazardous Materials: Oregon Hazardous Waste Management Regulation, 50882-50884 [2019-20880]

Download as PDF khammond on DSKJM1Z7X2PROD with NOTICES 50882 Federal Register / Vol. 84, No. 187 / Thursday, September 26, 2019 / Notices flare stack, smokeless tips, and ignition system(s) and scrubbers would be provided to safely burn all vented gas. • The West Delta LNG loading platform and marine berthing facilities will contain a loading arm system located on the LNG loading platform that would be used to load LNG onto a single LNG trading carrier. The loading and marine berth would be capable of handling LNG trading carriers with nominal capacities ranging from 30,000 m3 up to 180,000 m3. The West Delta LNG deepwater port would include six (6) mooring dolphins and four (4) breasting dolphins. Breasting dolphins and mooring dolphins are marine structures used for berthing and mooring of vessels. • The support facilities will contain an accommodation platform for West Delta LNG personnel and shall include living quarters for up to 36 people, a control station, helideck, and an auxiliary command room. All main power and essential power, other than the dedicated emergency generator located on the accommodations platform would be created and distributed from the utilities platform. • The loading platform is connected to offshore liquefied natural gas tankers with a 180,000 m3 nominal capacity for loading by two (2) 16-inch (40.6centimeter) diameter standard liquid arms; one (1) hybrid (liquid/vapor) 16inch diameter arm; and one (1) 16-inch diameter standard vapor arm. Depending on manifold restrictions, two (2) liquid arms and one (1) vapor arm would be used to load the 30,000 m3 nominal capacity LNG trading carriers. sourced gas, natural gas compressors, gas pretreatment packages, power generation units driven by gas turbines, waste heat recovery units, utilities to support the new gas pretreatment and compression equipment and a flare to combust waste gas from the pretreatment process. The onshore components connect to the offshore components by a single pipeline. This pipeline would be constructed to transfer the liquefactionready gas from the proposed onshore Venice Pretreatment Plant to the West Delta LNG deepwater port. The proposed pipeline’s outgoing onshore assembly is a 4.3 statute mile 30-inch diameter connection from the Venice Pretreatment Plant (measured from the proposed pig launcher to the high water mark) where this pipeline becomes the subsea pipeline supplying the offshore deepwater port. At this point, the pipeline continues, extending 15.5 statute miles beyond the high water mark to terminate at the proposed West Delta LNG offshore deepwater port. Onshore Components of the Deepwater Port The West Delta LNG deepwater port onshore components would consist of the proposed Venice Pretreatment Plant, which would be located in Plaquemines Parish, Louisiana within the grounds of an existing 121-acre onshore natural gas processing facility known as the Venice Gas Complex. The onshore components are as follows: • The Venice Pretreatment Plant would receive natural gas from offshore Gulf of Mexico midstream pipelines and/or interstate pipeline feed gas from pipelines already interconnected with the Venice Gas Complex. The natural gas would be pre-treated to meet liquefaction specifications, compressed onshore, and sent to the West Delta LNG offshore deepwater port. • The proposed Venice Pretreatment Plant would contain the following major components for the pre-treatment and processing of sourced natural gas: Cryogenic trains to process offshore- (Authority: 33 U.S.C. 1501, et seq.; 49 CFR 1.93(h)) VerDate Sep<11>2014 16:48 Sep 25, 2019 Jkt 247001 Privacy Act The electronic form of all comments received into the Federal Docket Management System can be searched by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). The DOT Privacy Act Statement can be viewed in the Federal Register published on April 11, 2000 (Volume 65, Number 70, pages 19477–78) or by visiting www.regulations.gov. Dated: September 23, 2019. By Order of the Maritime Administrator. T. Mitchell Hudson, Jr., Secretary, Maritime Administration. [FR Doc. 2019–20929 Filed 9–25–19; 8:45 am] BILLING CODE 4910–81–P DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration [Docket No. PHMSA–2016–0163; PDA– 39(R)] Hazardous Materials: Oregon Hazardous Waste Management Regulation Pipeline and Hazardous Materials Safety Administration (PHMSA), U.S. Department of Transportation (DOT). AGENCY: PO 00000 Frm 00066 Fmt 4703 Sfmt 4703 Notice of rejection of application for an administrative determination of preemption. ACTION: NORA, An Association of Responsible Recyclers, has petitioned for an administrative determination that the Hazardous Materials Transportation Act (HMTA) preempts an Oregon hazardous waste regulation to the extent that Oregon interprets the regulation as imposing a strict liability standard on transporters of hazardous waste. Because the HMTA’s preemption provisions—including the provision granting the Department the authority to make administrative preemption determinations—expressly do not apply to a ‘‘mental state . . . utilized by a State . . . to enforce a requirement applicable to the transportation of hazardous material,’’ PHMSA lacks authority to act on NORA’s petition. PHMSA therefore rejects the petition. SUMMARY: FOR FURTHER INFORMATION CONTACT: Vincent Lopez, Office of Chief Counsel (PHC–10), Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone No. 202–366–4400; facsimile No. 202–366–7041. SUPPLEMENTARY INFORMATION: I. Background NORA, An Association of Responsible Recyclers (NORA) has applied to PHMSA for a determination that the federal Hazardous Materials Transportation Act (HMTA), 49 U.S.C. 5101 et seq., preempts Oregon Administrative Rule (OAR) 340–100– 0002(1), 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 United States Environmental Protection Agency (EPA), including EPA’s regulation requiring transporters to receive a manifest before transporting hazardous waste, 40 CFR 263.20(a)(1)—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’’ (emphasis omitted). PHMSA invited public comment on NORA’s application on January 24, 2017, see 82 FR 8257. For the reasons set forth below, PHMSA has concluded that it lacks authority with respect to NORA’s application, and therefore rejects it. E:\FR\FM\26SEN1.SGM 26SEN1 Federal Register / Vol. 84, No. 187 / Thursday, September 26, 2019 / Notices khammond on DSKJM1Z7X2PROD with NOTICES II. Oregon Law 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 (RCRA), 42 U.S.C. 321 et seq., 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. The relevant Oregon regulation, OAR 340–100–0002 Adoption of United States Environmental Protection Agency Hazardous Waste and Used Oil Management Regulations, states in part, ‘‘[e]xcept as otherwise modified or specified by OAR 340, divisions 100 to 106, 109, 111, 113, 120, 124 and 142, the Commission adopts by reference, and requires every person subject to ORS 466.005 to 466.080 and 466.090 to 466.215, to comply with the rules and regulations governing the management of hazardous waste, including its generation, transportation, treatment, storage, recycling and disposal, as the United States Environmental Protection Agency prescribes in 40 CFR parts 260 to 268, 270, 273 and Subpart A and Subpart B of Part 124, . . . .’’ OAR 340– 100–0002(1). The EPA manifest requirement, 40 CFR 263.20(a)(1), which is one of the regulations that Oregon has adopted, reads in part, ‘‘[a] transporter may not accept hazardous waste from a generator unless the transporter is also provided with a manifest . . . signed in accordance with the requirement of § 263.23 . . . .’’ 40 CFR 263.20(a)(1). As noted above, NORA states that under OEQC’s interpretation of this requirement, a ‘‘transporter exercising reasonable care may not rely on the information provided by the generator and instead must be held to a strict liability standard.’’ The Oregon Supreme Court has recently upheld OEQC’s interpretation. See Oil ReRefining Co. v. Envtl. Quality Comm’n, 388 P.3d 1071 (Or. 2017). III. Federal Preemption 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) VerDate Sep<11>2014 16:48 Sep 25, 2019 Jkt 247001 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. Furthermore, unless it is authorized by another federal law or a waiver of preemption from the Secretary of Transportation, a non-federal requirement applicable to any one of several specified covered subjects is preempted if it is not substantively the same as the HMTA, the HMR, or a hazardous materials transportation security regulation or directive issued by the Secretary of Homeland Security. The five subject areas include: The designation, description, and classification of hazardous material; the packing, repacking, handling, labeling, marking, and placarding of hazardous material; the preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents; the written notification, recording, and reporting of the unintentional release in transportation of hazardous material and other written hazardous materials transportation incident reporting involving State or local emergency responders in the initial response to the incident; and the designing, manufacturing, fabricating, inspecting, marking, maintaining, reconditioning, repairing, or testing a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce. See 49 U.S.C. 5125(a) and (b). To be ‘‘substantively the same,’’ the non-Federal requirement must conform ‘‘in every significant respect to the Federal requirement. Editorial and other similar de minimis changes are permitted.’’ 49 CFR 107.202(d). Notwithstanding these preemption standards, Congress limited the applicability of HMTA preemption with respect to non-federal enforcement standards. For the purposes of this proceeding, the relevant portion of the statute is 49 U.S.C. 5125(h), and it reads as follows: ‘‘Non-Federal enforcement standards.—This section does not apply to any procedure, penalty, required mental state, or other standard utilized by a State, political subdivision of a State, or Indian tribe to enforce a requirement applicable to the transportation of hazardous material.’’ 49 U.S.C. 5125(h). PO 00000 Frm 00067 Fmt 4703 Sfmt 4703 50883 IV. NORA’s Application NORA contends that OEQC’s ‘‘strict liability’’ interpretation of the Oregon regulation conflicts with 49 CFR 171.2(f), a provision of the HMR providing that ‘‘[e]ach carrier who transports a hazardous material in commerce may rely on information provided by the offeror of the hazardous material or a prior carrier, unless the carrier knows or, a reasonable person, acting in the circumstances and exercising reasonable care, would have knowledge that the information provided by the offeror or prior carrier is incorrect.’’ NORA presents three specific arguments. First, NORA contends that it is not possible to comply with both the Oregon rule and the federal regulation because the ‘‘HMTA regulation requires the transporter to exercise reasonable care’’ while Oregon’s strict liability interpretation does not. Next, NORA argues that Oregon’s strict liability standard creates an obstacle to carrying out the federal regulation, since it discourages the exercise of reasonable care. Furthermore, NORA opines that the State’s inconsistent strict liability standard will encourage the misclassification of hazardous material. Finally, NORA states that ‘‘a strict liability standard is not ‘substantively the same’ as a reasonable care liability standard.’’ NORA notes that ‘‘under Oregon’s interpretation, a transporter who satisfies the reasonable care standard in section 171.2(f) would nonetheless be strictly liable for the generator’s waste mischaracterization.’’ V. Decision As noted above, 49 U.S.C. 5125 sets out standards for determining whether state and local laws are preempted, and authorizes the Secretary of Transportation to make administrative preemption determinations. Section 5125, however, expressly ‘‘does not apply to any procedure, penalty, required mental state, or other standard utilized by a State . . . to enforce a requirement applicable to the transportation of hazardous material.’’ 49 U.S.C. 5125(h); see also H.R. Rep. No. 109–203, at 1083 (2005) (noting that the amendment ‘‘clarifies that the Secretary’s preemption authority does not apply to a procedure, penalty, required mental state, or other standard used by a State, political subdivision of a State, or Indian tribe to enforce hazardous material transportation requirements.’’). H.R. Rep. No. 109–203, at 1083 (2005). NORA’s application argues that Oregon’s imposition of a ‘‘strict E:\FR\FM\26SEN1.SGM 26SEN1 50884 Federal Register / Vol. 84, No. 187 / Thursday, September 26, 2019 / Notices liability’’ standard—a ‘‘required mental state’’—is preempted by the HMTA. 49 U.S.C. 5125(h) expressly specifies that the HMTA’s preemption provision does not apply to such a claim, and that PHMSA lacks authority to make a determination with respect to such a claim. PHMSA therefore rejects NORA’s application. DEPARTMENT OF THE TREASURY Issued in Washington, DC, on September 20, 2019. SUMMARY: Paul J. Roberti, Chief Counsel, Pipeline and Hazardous Materials Safety Administration. [FR Doc. 2019–20880 Filed 9–25–19; 8:45 am] BILLING CODE 4910–60–P Office of Foreign Assets Control Notice of OFAC Sanctions Action Office of Foreign Assets Control, Treasury. AGENCY: ACTION: Notice. The Department of the Treasury’s Office of Foreign Assets Control (OFAC) is publishing the names of three entities that have been placed on OFAC’s Specially Designated Nationals and Blocked Persons List based on OFAC’s determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them. See SUPPLEMENTARY INFORMATION section for applicable date(s). khammond on DSKJM1Z7X2PROD with NOTICES DATES: VerDate Sep<11>2014 16:48 Sep 25, 2019 Jkt 247001 PO 00000 Frm 00068 Fmt 4703 Sfmt 4703 FOR FURTHER INFORMATION CONTACT: OFAC: Associate Director for Global Targeting, tel.: 202–622–2420; Assistant Director for Sanctions Compliance & Evaluation, tel.: 202–622–2490; Assistant Director for Licensing, tel.: 202–622–2480; Assistant Director for Regulatory Affairs, tel.: 202–622–4855. SUPPLEMENTARY INFORMATION: Electronic Availability The Specially Designated Nationals and Blocked Persons List and additional information concerning OFAC sanctions programs are available on OFAC’s website (www.treasury.gov/ofac). Notice of OFAC Action(s) On September 20, 2019, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following three entities are blocked under the relevant sanctions authority listed below. BILLING CODE 4810–AL–P E:\FR\FM\26SEN1.SGM 26SEN1

Agencies

[Federal Register Volume 84, Number 187 (Thursday, September 26, 2019)]
[Notices]
[Pages 50882-50884]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20880]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

[Docket No. PHMSA-2016-0163; PDA-39(R)]


Hazardous Materials: Oregon Hazardous Waste Management Regulation

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
U.S. Department of Transportation (DOT).

ACTION: Notice of rejection of application for an administrative 
determination of preemption.

-----------------------------------------------------------------------

SUMMARY: NORA, An Association of Responsible Recyclers, has petitioned 
for an administrative determination that the Hazardous Materials 
Transportation Act (HMTA) preempts an Oregon hazardous waste regulation 
to the extent that Oregon interprets the regulation as imposing a 
strict liability standard on transporters of hazardous waste. Because 
the HMTA's preemption provisions--including the provision granting the 
Department the authority to make administrative preemption 
determinations--expressly do not apply to a ``mental state . . . 
utilized by a State . . . to enforce a requirement applicable to the 
transportation of hazardous material,'' PHMSA lacks authority to act on 
NORA's petition. PHMSA therefore rejects the petition.

FOR FURTHER INFORMATION CONTACT: Vincent Lopez, Office of Chief Counsel 
(PHC-10), Pipeline and Hazardous Materials Safety Administration, U.S. 
Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 
20590; telephone No. 202-366-4400; facsimile No. 202-366-7041.

SUPPLEMENTARY INFORMATION:

I. Background

    NORA, An Association of Responsible Recyclers (NORA) has applied to 
PHMSA for a determination that the federal Hazardous Materials 
Transportation Act (HMTA), 49 U.S.C. 5101 et seq., preempts Oregon 
Administrative Rule (OAR) 340-100-0002(1), 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 United States 
Environmental Protection Agency (EPA), including EPA's regulation 
requiring transporters to receive a manifest before transporting 
hazardous waste, 40 CFR 263.20(a)(1)--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'' (emphasis omitted). PHMSA invited 
public comment on NORA's application on January 24, 2017, see 82 FR 
8257. For the reasons set forth below, PHMSA has concluded that it 
lacks authority with respect to NORA's application, and therefore 
rejects it.

[[Page 50883]]

II. Oregon Law

    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 
(RCRA), 42 U.S.C. 321 et seq., 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.
    The relevant Oregon regulation, OAR 340-100-0002 Adoption of United 
States Environmental Protection Agency Hazardous Waste and Used Oil 
Management Regulations, states in part, ``[e]xcept as otherwise 
modified or specified by OAR 340, divisions 100 to 106, 109, 111, 113, 
120, 124 and 142, the Commission adopts by reference, and requires 
every person subject to ORS 466.005 to 466.080 and 466.090 to 466.215, 
to comply with the rules and regulations governing the management of 
hazardous waste, including its generation, transportation, treatment, 
storage, recycling and disposal, as the United States Environmental 
Protection Agency prescribes in 40 CFR parts 260 to 268, 270, 273 and 
Subpart A and Subpart B of Part 124, . . . .'' OAR 340-100-0002(1).
    The EPA manifest requirement, 40 CFR 263.20(a)(1), which is one of 
the regulations that Oregon has adopted, reads in part, ``[a] 
transporter may not accept hazardous waste from a generator unless the 
transporter is also provided with a manifest . . . signed in accordance 
with the requirement of Sec.  263.23 . . . .'' 40 CFR 263.20(a)(1).
    As noted above, NORA states that under OEQC's interpretation of 
this requirement, a ``transporter exercising reasonable care may not 
rely on the information provided by the generator and instead must be 
held to a strict liability standard.'' The Oregon Supreme Court has 
recently upheld OEQC's interpretation. See Oil Re-Refining Co. v. 
Envtl. Quality Comm'n, 388 P.3d 1071 (Or. 2017).

III. Federal Preemption

    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.
    Furthermore, unless it is authorized by another federal law or a 
waiver of preemption from the Secretary of Transportation, a non-
federal requirement applicable to any one of several specified covered 
subjects is preempted if it is not substantively the same as the HMTA, 
the HMR, or a hazardous materials transportation security regulation or 
directive issued by the Secretary of Homeland Security. The five 
subject areas include: The designation, description, and classification 
of hazardous material; the packing, repacking, handling, labeling, 
marking, and placarding of hazardous material; the preparation, 
execution, and use of shipping documents related to hazardous material 
and requirements related to the number, contents, and placement of 
those documents; the written notification, recording, and reporting of 
the unintentional release in transportation of hazardous material and 
other written hazardous materials transportation incident reporting 
involving State or local emergency responders in the initial response 
to the incident; and the designing, manufacturing, fabricating, 
inspecting, marking, maintaining, reconditioning, repairing, or testing 
a package, container, or packaging component that is represented, 
marked, certified, or sold as qualified for use in transporting 
hazardous material in commerce. See 49 U.S.C. 5125(a) and (b).
    To be ``substantively the same,'' the non-Federal requirement must 
conform ``in every significant respect to the Federal requirement. 
Editorial and other similar de minimis changes are permitted.'' 49 CFR 
107.202(d).
    Notwithstanding these preemption standards, Congress limited the 
applicability of HMTA preemption with respect to non-federal 
enforcement standards. For the purposes of this proceeding, the 
relevant portion of the statute is 49 U.S.C. 5125(h), and it reads as 
follows: ``Non-Federal enforcement standards.--This section does not 
apply to any procedure, penalty, required mental state, or other 
standard utilized by a State, political subdivision of a State, or 
Indian tribe to enforce a requirement applicable to the transportation 
of hazardous material.'' 49 U.S.C. 5125(h).

IV. NORA's Application

    NORA contends that OEQC's ``strict liability'' interpretation of 
the Oregon regulation conflicts with 49 CFR 171.2(f), a provision of 
the HMR providing that ``[e]ach carrier who transports a hazardous 
material in commerce may rely on information provided by the offeror of 
the hazardous material or a prior carrier, unless the carrier knows or, 
a reasonable person, acting in the circumstances and exercising 
reasonable care, would have knowledge that the information provided by 
the offeror or prior carrier is incorrect.'' NORA presents three 
specific arguments. First, NORA contends that it is not possible to 
comply with both the Oregon rule and the federal regulation because the 
``HMTA regulation requires the transporter to exercise reasonable 
care'' while Oregon's strict liability interpretation does not. Next, 
NORA argues that Oregon's strict liability standard creates an obstacle 
to carrying out the federal regulation, since it discourages the 
exercise of reasonable care. Furthermore, NORA opines that the State's 
inconsistent strict liability standard will encourage the 
misclassification of hazardous material. Finally, NORA states that ``a 
strict liability standard is not `substantively the same' as a 
reasonable care liability standard.'' NORA notes that ``under Oregon's 
interpretation, a transporter who satisfies the reasonable care 
standard in section 171.2(f) would nonetheless be strictly liable for 
the generator's waste mischaracterization.''

V. Decision

    As noted above, 49 U.S.C. 5125 sets out standards for determining 
whether state and local laws are preempted, and authorizes the 
Secretary of Transportation to make administrative preemption 
determinations. Section 5125, however, expressly ``does not apply to 
any procedure, penalty, required mental state, or other standard 
utilized by a State . . . to enforce a requirement applicable to the 
transportation of hazardous material.'' 49 U.S.C. 5125(h); see also 
H.R. Rep. No. 109-203, at 1083 (2005) (noting that the amendment 
``clarifies that the Secretary's preemption authority does not apply to 
a procedure, penalty, required mental state, or other standard used by 
a State, political subdivision of a State, or Indian tribe to enforce 
hazardous material transportation requirements.''). H.R. Rep. No. 109-
203, at 1083 (2005).
    NORA's application argues that Oregon's imposition of a ``strict

[[Page 50884]]

liability'' standard--a ``required mental state''--is preempted by the 
HMTA. 49 U.S.C. 5125(h) expressly specifies that the HMTA's preemption 
provision does not apply to such a claim, and that PHMSA lacks 
authority to make a determination with respect to such a claim. PHMSA 
therefore rejects NORA's application.

    Issued in Washington, DC, on September 20, 2019.
Paul J. Roberti,
Chief Counsel, Pipeline and Hazardous Materials Safety Administration.
[FR Doc. 2019-20880 Filed 9-25-19; 8:45 am]
 BILLING CODE 4910-60-P