{"operation":"document","citation":"14-0036","title":"Department of Ecology — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2014-02-26","effective_on":null,"summary":"14-0036 response to Department of Ecology concerning 171.1.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-14-0036.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-14-0036.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-14-0036","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2014/140036.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety Administration\nOffice of\nChief Counsel\n1200 New Jersey Avenue. S.E .•\nPHC-1 0, Room E26-331\nWashington, D.C. 20590-0001\nPhone: (202)366-4400\nFax: (202) 366-7041\nHazardous Materials Safety\nLaw Division\nLETTER OF INTERPRETATION\nFebruary 26, 2014\nGerald French\nDepartment of Ecology\n4601 North Monroe Street\nSpokane, W A 99205-1295\nReference No.: 14-0036\nDear Mr. French:\nThank you for your June 6, 2013 letter regarding what you describe as rolling road closures\nbetween the Department of Energy's Hanford (DOE or Hanford) facility and the Permafix\nNorthwest (PFNW) waste receiving facility located in Richland, Washington. In your letter you\nask three questions based on the following fact pattern:\n• The DOE and its contractors at its Hanford facility arrange and prepare radioactive\nhazardous waste for transport off-site to PFNW located in Richland, W A. Waste is also\ntransported from PFNW back to Hanford.\n• Waste shipments are transported by DOE and its contractors on a public highway\nbetween the Wye Barricade at the Hanford facility and PFNW. The 12 mile distance\nbetween the two locations is normally open to the public at all times.\n• These waste shipments are transported via a \"rolling road closure.\" This closure is\naffected by a front and rear escort conducted by the DOE and Hanford police.\n• During the \"rolling road closures,\" the public has unrestricted access to lanes moving in\nthe opposite direction on Route 4.\n• The public also has unrestricted access to roads leading to Energy Northwest Nuclear\npower plant facility and to other public roads that intersect Route 4 South at the DOE-\nHanford facility.\n• DOE and its contractors obtain a \"Special Event Permit\" to allow the transport of\nradioactive hazardous waste on Richland public streets.\n\n<<<PAGE 2>>>\n\n2\n• The public has unrestricted access in traffic lanes on Stevens Drive, Horn Rapids Road\nand Battelle Boulevard in Richland next to where the hazardous waste shipment is\ntransported to PFNW. Public access is unrestricted and there are no signals, lights and\ngates to restrict, control and effectively preclude public access between the Wye\nBarricade and PFNW.\nIn your letter you ask the following questions:\n• Does the rolling road closure described above between Hanford and PFNW meet the\nexclusions in§ 171.1 (d)(4) of the Hazardous Materials Regulations (HMR; 49 CFR Parts\n171 - 180)?\n• Is the rolling road closure consistent with the criteria set forth in the April 23, 1991 letter\nfrom the Research and Special Programs Administration to Susan Denny (Denny Letter)\nfor the transportation of hazardous material out of commerce?\n• Does the rolling road closure effectively remove the transport activity described above\nfrom commerce?\nThe answer to each of your questions is no.\nIn order to understand the basis for each answer, it might be helpful to provide a brief overview\nof the relevant portions of§ 171.1, which sets forth the applicability of the Federal Hazardous\nMaterials Transportation Law (Hazmat Law; 49 U.S.C. 5101 et seq.) to persons and functions.\nThe Hazmat Law grants authority to the Secretary of Transportation (Secretary) to regulate the\nsafe and secure transportation of hazardous materials in commerce. This authority includes the\nregulation of packaging, pre-transportation functions, and transportation functions, which are\ndescribed in § § 171.1 (a- c). Section 171.1 (d) provides some exceptions to the HMR. In this\ncase, there are two possible exceptions to consider for the activity you describe: §§ 17l.l(d)(4)\nand 171.1(d)(5).\nSection 171.1 (d)(4) applies to activity which occurs within a contiguous property that is\nintersected by a public road. It states that the HMR apply to rail or motor vehicle movements on\nthis property, unless public access to the roads which run through this property is restricted. In\nthe scenario you describe,§ 17l.l(d)(4) does not apply for two reasons: (1) the motor vehicle\nactivity is taking place, at least in part, outside the property boundaries of the facility, and (2)\npublic access is not restricted.\nThe scenario you describe appears to include both public roads cutting through contiguous\nproperty boundaries and public roads that are completely off-site. As long as the motor vehicle\nmovement includes any transportation outside ofthe contiguous property boundary,\n§ 17l.l(d)(4)cannotapply.\nAdditionally, the rolling road closures you describe do not restrict public access and are more\naptly described as a convoy. The lanes for traffic coming from the opposite direction are\nunimpeded by the convoy. It also does not appear that any measures are taken to restrict any\n2\n\n<<<PAGE 3>>>\n\n3\nother type of public access or public exposure, such as joggers, cyclists, pedestrians, roadside\nvendors, etc. Therefore, the rolling road closures as described above are not sufficient to remove\nthis transport activity from commerce.\nSection 17l.l(d)(5) provides an exception from the HMR to the \"[t]ransportation of a hazardous\nmaterial in a motor vehicle, aircraft, or vessel operated by a Federal, state, or local government\nemployee solely for noncommercial Federal, state, or local government purposes.\" Any Federal,\nstate, or local government employee transporting hazardous material for a commercial and/or\nnon-governmental purpose would be subject to the HMR. In addition, contractors are not\ncovered by§ 171.1(d)(5) and the HMR applies to any transportation of a hazardous material by a\ncontractor. In your scenario, DOE contractors are participating in the transportation activity you\ndescribe. Therefore, the applicable requirements of the HMR (such as packaging, labeling,\nmarking, shipping papers, and placarding) apply as long as the requirements for no other\nexceptions are met.\nThe analysis in the Denny Letter is consistent with both §§ 171.1 (d)( 4) and 171.1 ( d)(5).\nTherefore, the activity you describe is not consistent with the criteria set forth there.\nI hope this information is helpful. To the extent that there has been any confusion related to past\nagency guidance, we hope this clarifies the issue. Please contact this office if you have any\nadditional questions.\nJoseph Solomey,\nSenior Assistant Chief Counsel for\nHazardous Materials Safety\n3","truncated":false,"body_characters":6311}