Tennessee v. U.S. Dept. of Transp.

• Decision Date: 23 April 2003
• Docket Number: No. 01-5373.,01-5373.
• Citation: 326 F.3d 729
• Parties: State of TENNESSEE and Tennessee Department of Environment and Conservation, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, Research and Special Programs Administration, and Association of Waste Hazardous Materials Transporters, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

326 F.3d 729

State of TENNESSEE and Tennessee Department of Environment and Conservation, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, Research and Special Programs Administration, and Association of Waste Hazardous Materials Transporters, Defendants-Appellees.

No. 01-5373.

United States Court of Appeals, Sixth Circuit.

Argued: September 17, 2002.

Decided and Filed: April 23, 2003.

Barry Turner (argued and briefed), Office of the Attorney General, Environmental Div., Nashville, TN, for Plaintiffs-Appellants.

Michael L. Roden, Asst. U.S. Atty., Nashville, TN, Mark B. Stern (briefed), Michael S. Raab (argued and briefed), United States Department of Justice, Civil Div., Appellate Section, Washington, DC, Peter J. Plocki (briefed), Office of General Counsel, United States Department of Transportation, Office of the General Counsel, Washington, DC, Frazer C. Hilder (briefed), United States Department of Transportation, Research and Special Programs Administration, Washington, DC, Grant C. Glassford (briefed), James E. Gaylord (briefed), Stokes, Bartholomew, Evans & Petree, Nashville, TN, for Defendants-Appellees.

Lawrence W. Bierlein (briefed), McCarthy, Sweeney & Harkaway, Washington, DC, for Amici Curiae.

Before: SILER, DAUGHTREY, and GILMAN, Circuit Judges.

OPINION

DAUGHTREY, Circuit Judge.

In this appeal, the State of Tennessee and the Tennessee Department of Environment and Conservation challenge the district court's decision upholding the United States Department of Transportation's disallowance of an annual fee imposed by Tennessee on interstate hazardous waste transporters under the Tennessee Hazardous Waste Management Act, Tenn.Code Ann. § 68-212-203(a)(6). The district court held that the state statute authorizing the fee is preempted by the federal Hazardous Materials Transportation Act, 49 U.S.C. §§ 5101 et seq. In response to the claim that the federal agency's action was barred by sovereign immunity, the district court also held that the determination by the United States Department of Transportation (the USDOT) was an "executive administrative action" that was not subject to either (1) the doctrine of state sovereign immunity imbedded in Eleventh Amendment, see Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), or (2) that version of extra-constitutional immunity doctrine lately recognized by the United States Supreme Court in Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). After judgment in the federal agency's favor was entered below, the Supreme Court announced its decision in Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002), holding that the State of South Carolina was immune from a complaint by a private party because the agency "adjudication" used to resolve the complaint administratively "walked, talked, and squawked" like a lawsuit. Id. 122 S.Ct. at 1873. Hence, our task in this case is to determine whether the agency determination made by the USDOT meets the "walk, talk, and squawk test" of Federal Maritime Commission. If so, the State of Tennessee would be immune from the proceedings instituted in this case, and the district court's judgment would necessarily have to be reversed.

For the reasons set out below, we conclude that reversal in this case is not warranted, and we therefore affirm the judgment of the district court.

BACKGROUND

In 1975, Congress passed the Hazardous Materials Transportation Act, 49 U.S.C. §§ 5101-5127, pursuant to the Commerce Clause in Article I of the United States Constitution. The stated intent of the Act is "to provide adequate protection against the risk to life and property inherent in the transportation of hazardous material in commerce by improving the regulatory and enforcement authority of the Secretary of Transportation." 49 U.S.C. § 5101. In an effort to create a coherent approach to addressing the problems posed by the interstate transportation of hazardous material (known in the trade as "hazmat"), Congress vested central authority over "hazmat" regulation in the USDOT. Consistent with this centralization of authority, Congress determined that federal preemption of state and local laws inconsistent with the Act was necessary and, therefore, promulgated a section of the Act entirely devoted to preemption concerns. Section 5125(a) sets out the criteria for preemption:

(a) General. Except as provided in subsections (b), (c), and (e) of this section and unless authorized by another law of the United States, a requirement of a State, political subdivision of a State, or Indian tribe is preempted if —

(1) complying with a requirement of the State, political subdivision, or tribe and a requirement of this chapter, a regulation prescribed under this chapter, or a hazardous materials transportation security regulation or directive issued by the Secretary of Homeland Security is not possible; or

(2) the requirement of the State, political subdivision, or tribe as applied or enforced, is an obstacle to accomplishing and carrying out this chapter, or a regulation prescribed under this chapter, or a hazardous materials transportation security regulation or directive issued by the Secretary of Homeland Security.

49 U.S.C. § 5125(a).¹ Obviously, not all state requirements are preempted, and the procedure for determining whether preemption will apply to a particular state provision is found in subsection (d):

(d)(1) A person (including a State, a political subdivision of a State or Indian tribe) directly affected by a requirement of a State, political subdivision, or tribe may apply to the Secretary, as provided by regulations prescribed by the Secretary, for a decision on whether the requirement is preempted by subsection (a),(b)(1), or (c) of this section. The Secretary shall publish notice of the application in the Federal Register. The Secretary shall issue a decision on an application for a determination within 180 days after the date of the publication of the notice of having received such application, or the Secretary shall publish a statement in the Federal Register of the reason why the Secretary's decision on the application is delayed, along with an estimate of the additional time necessary before the decision is made. After notice is published, an applicant may not seek judicial relief on the same or substantially the same issue until the Secretary takes final action on the application or until 180 days after the application is filed, whichever occurs first.

(2) After consulting with States, political subdivisions of States, and Indian tribes, the Secretary shall prescribe regulations for carrying out paragraph (1) of this subsection.

(3) Subsection (a) of this section does not prevent a State, political subdivision of a State, or Indian tribe, or another person directly affected by a requirement, from seeking a decision on preemption from a court of competent jurisdiction instead of applying to the Secretary under paragraph (1) of this subsection.

49 U.S.C. § 5125(d). The party seeking such a decision "may bring a civil action in an appropriate district court of the United States for judicial review of the decision of the Secretary" under § 5125(f).

When the subject of the preemption decision is the validity of a fee imposed by the state on "hazmat" transporters, as was the case here, § 5125(g) sets out the following test:

A State, political subdivision of a State, or Indian tribe may impose a fee related to transporting hazardous material only if the fee is fair and used for a purpose related to transporting hazardous material, including enforcement and planning, developing, and maintaining a capability for emergency response.

49 U.S.C. § 5125(g).

The implementing regulations of § 5125 provide that those who seek a preemption determination concerning a state "hazmat" requirement may apply to the Associate Administrator of the USDOT's Research and Special Programs Administration. See 49 C.F.R. § 107.203(a) and (b). The applicant must also serve a copy of the application on the state, notifying state officials of their right to submit comments regarding the application to the Associate Administrator. See 49 C.F.R. § 107.205(a). In addition, the Associate Administrator is required to publish notice of the application in the Federal Register, inviting comments. See 49 C.F.R. § 107.205(b). All parties submitting comments are required to provide those comments to the applicant as well, providing notice of service to the Associate Administrator. See 49 C.F.R. § 107.205(c). After receiving comments, the Associate Administrator is free to conduct an investigation and may or may not convene a hearing. See 49 C.F.R. § 107.207. Upon reaching a determination, the Administrator issues a written statement setting out relevant facts and law to all involved parties. The determination is subject to reconsideration upon the motion of a party. Thereafter it is placed on file in the public docket, printed in the Federal Register, and considered a final agency determination on the disputed question of preemption. See 49 C.F.R. § 107.209. Within 60 days of publication, the parties are free to seek judicial review of the determination in a federal district court. See 49 U.S.C. § 5125(f); 49 C.F.R. § 107.213.

In this case, the Association of Waste Hazardous Materials Transporters filed an application with the Associate Administrator in March 1998, seeking a preemption determination pursuant to § 5125(d). The Association challenged the validity of Tenn.Code Ann. § 68-212-203(a)(6), a provision of the Tennessee Hazardous Waste Management Act that levies a flat $650 annual fee on all persons issued hazardous waste transportation permits by the state. The Association's application was served upon both state officials and the USDOT Administrator and printed in the Federal Register, giving...