{"operation":"document","citation":"CHI-07-002","title":"Minnesota Department of Transportation — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2007-05-09","effective_on":null,"summary":"CHI-07-002 response to Minnesota Department of Transportation concerning 171.1.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-07-002.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-07-002.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-07-002","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Hazmat/ChiefCounsel/CHI-07-002.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\n1200 New Jersey Avenue, S.E.\nPipeline and Hazardous\nLone E26 (PHC-10)\nOffice of\nWashington, D.C. 20590-0001\nMaterials Safety Administration\nChief Counsel\nPhone: (202) 366-4400\nFax: (202) 366-7041\nMAY _ 9 2007\nMr. Michael Ritchie\nHazardous Materials Specialist\nMinnesota Department of Transportation\nOffice of Freight and Commercial Motor Vehicle Operations\nTransportation Building, M.S. 460\n395 John Ireland Blvd.\nSt. Paul, MN 55155\nDear Mr. Ritchie:\nThis responds to your inquiries about the Hazardous Waste Management Ordinance of\nWashington County, Minnesota (Ordinance No. 166) as applied to transporters of hazardous\nwaste. Based on the information you forwarded from a Washington County official, it\nappears that Ordinance No. 166 applies to transporters who maintain a \"transfer facility\"\nwithin the County where hazardous wastes are stored on or off a vehicle for more than 24\nhours (but less than 10 days). The County also indicates it does not apply Ordinance No. 166\nto transporters who do not have a \"home base\" within the County and only stop at rest stops\nor truck stops within the County.\nAccording to the documents you provided, including a copy of Ordinance No. 166, a\nhazardous waste transporter must obtain an annual permit or license for its transfer facility,\nand the permit application form must be accompanied by:\n-A \"Closure Cost Worksheet\" on the basis of which the County will notify the\napplicant of the required amount to be placed in a bond or letter of credit (in favor\nof the County) to cover the estimated costs of (1) disposing of the maximum\namount of hazardous waste that will be at the facility at any one time; (2)\ndecontaminating the facility or disposing of equipment that cannot be\ndecontaminated; (3) performing any other activities to assure the facility does not\npose a threat to human health or the environment; and (4) an additional 30% to\ncover unanticipated costs that the County might occur.\n-Proof of insurance with specified minimum coverage for (1) general liability for\ndeath, bodily injury, and property damage; (2) environmental impairment liability,\n\n<<<PAGE 2>>>\n\n2\nincluding remediation and cleanup; (3) automobile liability; (4) workers\ncompensation, and (5) commercial truckers insurance with endorsements for cargo\npollution coverage and a \"BUYBACK endorsement that deletes the exclusion\ncaused by cargo as respects bodily injury and property damage.\"\n-Payment of the application fee and annual license fee.\nIn your November 3, 2005 email, you indicated that a hazardous waste transporter with a\nfacility in Washington County had raised concerns whether the requirement in Ordinance No.\n166 for a facility permit is consistent with the Interstate Commerce Clause of the\nConstitution and the preemption provisions in the Federal Hazardous Material Transportation\nLaw, 49 U.S.C. § 5101 et seq. You have also advised that the County is interested in\nclarifying this matter without formal administrative or judicial proceedings.\nI believe all the parties understand that the Department of Transportation does not have\nsufficient resources to conduct thorough reviews of State and local requirements outside of\nthe preemption determination process set forth in 49 C.F.R. parts 107 (subpart C, beginning\nat § 107.201) and 397 (subpart E, beginning at § 397.201). Informal reviews are also\nhindered by the absence of public input that we receive under the formal determination\nprocess established in 49 U.S.C. § 5125(d)(1). Nonetheless, at your request, this letter\ndiscusses prior administrative and judicial decisions that appear relevant to the transfer\nfacility permit requirements in Ordinance No. 166. I also refer you to the most recent index\nand summary of administrative determinations and court decisions on hazardous materials\n\"Preemption of State and Local Laws\").\npreemption at our website: http://phmsa-atty.dot.gov (click on \"Preemption\" and then\nThe criteria for preemption of non-Federal requirements concerning the transportation of\nhazardous materials are set forth in 49 U.S.C. § 5125. In summary, a non-Federal\nrequirement is preempted (unless it is specifically authorized by another Federal law) when:\nhazardous material transportation law, the regulations issued under that law, or a\na. It is not possible to comply with both the non-Federal requirement and the Federal\nhazardous materials transportation security regulation or directive issued by the\nSecretary of Homeland Security (DHS).\nb. The non-Federal requirement is an obstacle to accomplishing and carrying out the\nFederal hazardous material transportation law, the regulations issued under that law,\nor a DHS hazardous materials transportation security regulation or directive.\nc. The non-Federal requirement concerns any of five subjects and is not\n\"substantively the same as\" a provision in the Federal hazardous material\ntransportation law, the regulations issued under that law, or a DHS hazardous\nmaterials transportation security regulation or directive.\n\n<<<PAGE 3>>>\n\n3\nd. A non-Federal highway routing requirement does not comply with regulations of\nthe Federal Motor Carrier Safety Administration in 49 C.F.R. part 397 (subparts D\nand E).\ne. A fee related to the transportation of hazardous material is not fair or is used for a\npurpose that is not related to transporting hazardous material (including enforcement\nand planning, developing, and maintaining a capability for emergency response).\nPHMSA and its predecessor agency, the Research and Special Programs Administration\n(RSPA), have consistently found that the Federal hazardous material transportation law and\nthe regulations issued under that law apply to a transporter's temporary storage of hazardous\nmaterials, including hazardous wastes, during transportation. See 49 C.F.R. § 171.1(c)(4)\nand, for example, Inconsistency Ruling No. 28, San Jose, California Restrictions on Storage\nof Hazardous Materials, 55 Fed. Reg. 8884, 8889 (Mar. 8, 1990), appeal dismissed as moot,\n57 Fed. Reg. 41165 (Sept. 9, 1992); Preemption Determination (PD) No. 12(R), New York\nDep't of Environmental Conservation Requirements on the Transfer and Storage of\nHazardous Wastes Incidental to Transportation, 60 Fed. Reg. 62527 (Dec. 6, 1995), decision\non petition for reconsideration, 62 Fed. Reg. 15970 (Apr. 3, 1997), aff'd, New York v. U.S.\nDep't of Transp., 37 F. Supp. 2d 152 (N.D.N. Y 1999); PD-30(R), Houston, TX\n9414 (Feb. 23, 2006).\nRequirements on Storage of Hazardous Materials During Transportation, 71 Fed. Reg. 9413,\nState requirements for a financial bond were considered in PD-1(R), Maryland,\nMassachusetts, and Pennsylvania Bonding Requirements for Vehicles Carrying Hazardous\nWastes, 57 Fed. Reg. 58848 (Dec. 11, 1992), decision on petition for reconsideration, 58 Fed.\nReg. 32418 (June 9, 1993), rev'd, Massachusetts v. U.S. Dep't of Transp., 93 F.3d 890 (D.C.\nCir. 1996). In that case, the United States Court of Appeals for the District of Columbia held\nthat State bonding requirements are not preempted by the Federal hazardous material\ntransportation law \"in the absence of federal requirements in this area of bonding\nrequirements.\" 93 F.3d at 892. The Court distinguished \"the bonding requirement from\nother forms of liability insurance requirements.\"\nId.\nIn its initial decision in PD-1(R), RSPA discussed insurance and indemnification\nrequirements which had been considered in earlier inconsistency rulings. In those decisions,\nRSPA found that the insurance levels required by the Federal Motor Carrier Safety\nRegulations (49 C.F.R. part 387) and the Price-Anderson Act (42 U.S.C. § 2210, with respect\nto radioactive materials) contain the applicable requirements for carriers of hazardous\nmaterials to carry insurance (or self-insure), and State or local requirements for additional\ncoverage are preempted. See 57 Fed. Reg. at 58853-54.\nIssues concerning annual fees were considered in PD-21(R), Tennessee Hazardous Waste\nTransporter Fee and Reporting Requirements, 64 Fed. Reg. 54474 (Oct. 6, 1999), affirmed,\nTennessee v. U.S. Dep't of Transp.., 326 F.3d 729 (6\" Cir. 2003). In that proceeding, RSPA\nfound that Federal hazardous material transportation law preempts a State's \"remedial action\nfee\" because the flat annual fee \"is not based on some fair approximation of the use of\nfacilities and discriminates against interstate commerce,\" 64 Fed. Reg. at 54478, and the\n\n<<<PAGE 4>>>\n\n4\nState had failed to show that the fees collected from transporters were being spent only for\npurposes related to transporting hazardous material, including enforcement and planning,\ndeveloping, and maintaining a capability for emergency response. Id. at 54479. However, in\nPD-22(R), New Mexico Requirements for the Transportation of Liquefied Petroleum Gas, 67\nFed. Reg. 59397, 59404 (Sept. 20, 2002), decision on petition for reconsideration, 68 Fed.\nReg. 55080, 55084 (Sept. 22, 2003), RSPA distinguished an annual licensing fee, which was\nnot related to the amount of the carrier's activity within the State, from an inspection fee\ninspection required.\"\nwhich \"appears to be related, in some manner, to the work involved in performing the\nDOT's preemption determinations do not address issues of preemption arising under the\nCommerce Clause of the Constitution unless it is necessary to determine whether a fee is\n\"fair\" within the meaning of 49 U.S.C. § 5125(f)(1). See, e.g., PD-30(R), 71 Fed. Reg. at\nthe Commerce Clause.\n9415. Therefore, I have not attempted to analyze whether Ordinance No. 166 conflicts with\nIn summary, with respect to the transfer facility permit requirement in Ordinance No. 166,\nagency precedent supports the following conclusions:\n--Federal hazardous material transportation law does not preempt the requirement to\nfavor of the County.\nsubmit a \"Closure Cost Worksheet\" and, thereafter, post a bond or letter of credit (in\n--To the extent that the required insurance exceeds the scope or amount of insurance\nor indemnity coverage required under 49 C.F.R. part 387, the requirement to provide\nproof of such insurance is preempted under 49 U.S.C. § 5125(a)(2).\n--To the extent that the annual license fee is not related to the transporter's level of\nactivity with the County; the initial application fee is not related to the work involved\nin processing the transporter's application and issuing a transporter facility permit; or\nthe fees collected are not used for purposes related to the transportation of hazardous\nmaterial, these fees are preempted under 49 U.S.C. § 5125(f)(1).\nI hope this information is helpful. If you have further questions, you may contact me or\n202-366-7041.\nFrazer Hilder of my staff at the above address, by telephone at 202-366-4400, or by fax to\nSincerely,\nJosh sens,\nAssistant Chief Counsel for\nHazardous Materials Safety Law","truncated":false,"body_characters":10839}