New York Power Authority — Hazardous Materials Safety Interpretation

Page 1of Transportation U.S. Department 400 Seventh St., S.W. Washington, D.C. 20590 Research and Special Programs Administration JUN 2 1 2004 Mr. Mark K. Malone Ref. No.: 04-0092 Senior Attorney New York Power Authority 123 Main Street White Plains, New York 10601 Dear Mr. Malone: This responds to your request for clarification of an amendment to the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) adopted under Docket HM-223 (final rule published October 30, 2003; 68 FR 61906). Your questions are paraphrased and answered as follows: Q1. You asked if your understanding is correct that the HMR do not apply to the Authority, a corporate municipal instrumentality of New York State, in which a State employee transports hazardous materials in a State vehicle from an Authority work area to an Authority facility? Al. Your understanding is correct. Functions not subject to the HMR include transportation of a hazardous material in a motor vehicle, aircraft, or vessel operated by a Federal, State, or local government employee solely for noncommercial Federal, State, or local governmental purposes. Q2. Is an Authority employee subject to the HMR if he or she performs a pre-transportation transported in a vehicle operated by a commercial carrier? function on a hazardous material package at an Authority facility that will eventually be A2. The answer is yes. The requirements of the HMR apply to each person who offers a transported in commerce, or transports a hazardous material in commerce and who hazardous material for transportation in commerce, causes a hazardous material to be performs or is responsible for performing a pre-transportation function, including each person performing pre-transportation functions under contract with any department, agency, or instrumentality of the executive, legislative, or judicial branch of the Federal 171.1 040092#

Page 2government. Therefore, an instrumentality, such as the New York State Authority, offering a hazardous material to a commercial carrier for transportation is subject to the applicable rules of the HMR. I hope this satisfies your inquiry. If we can be of further assistance, please contact us. Sincerely, 'John A. Gale / Office of Hazardous Materials Standards Chief, Standards Development#

Page 3123 Main Street 914 681.6200 White Plains, New Yor! 10601 Engrum 5177.1 NewYork Power Authority Applicability 04-0092 April 6, 2004 Susan Gorsky Office of Hazardous Materials Standards, Department of Transportation Research and Special Programs Administration OO 7* Street S.W Nashington, D.C. 2059( Subject: Interpretation of Final Rule [Docket No. RSPA-98-4952 (HM-223)] Dear Ms. Gorsky: Department of Transportation (DOT) Final Rule, effective October 1, 2004, concerning I am an attorney with the New York Power Authority ("Authority") seeking an opinion on a would like DOT's interpretation of the Final Rule (68 FR. 51906) clarifying the applicability of hazardous materials. The Authority, a corporate municipal instrumentality of New York State, the Hazardous Materials Regulations ("HMRs"). transports hazardous materials from an Authority work ares io an Authority facility. Authority The Authority encounters situations in which an Authority employee, in an Authority vehicle, employees are considered state employees. The Authority's interpretation is that the HMRs do not apply to these activities (see, 49 U.S.C. 5102 [9]; 49 CFR 171.1 [d] [5]; 68 FR 61912- The HMRs are applicable to packaging, cerlain pre-transportatio: furictions, and transportation functions beginning when a non-Authority carrier takes physical possession of the hazardous materials from the Authority facility to transport these materials to a destination for long-term storage or appropriate disposal. Is an Authority employee subject to the HMRs if he or she that will eventually be shipped on a non-Authority (carrier) vehicle? performs a pre-transportation function at an Authority facility on a hazardous material package these two distinct stages of the transportation of hazardous materials. The Authority would be grateful for your written opinion on the applicability of the HMRs for Very truly yours, Mak X: Malore Mark K. Malone Senior Attorney cc: Ms. Donna O'Berry#