{"operation":"document","citation":"CHI-11-002","title":"County of San Diego — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2011-05-25","effective_on":null,"summary":"CHI-11-002 response to County of San Diego concerning 177.800.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-11-002.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-11-002.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-11-002","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Hazmat/ChiefCounsel/CHI-11-002.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\n1200 New Jersey Ave., S.E.\nof Transportation\nWashington, D.C. 20590\nMaterials Safety Administration\nPipeline and Hazardous\nChief Counsel\nOffice of\nMAY 2 5 2011\nTom Bosworth, Esq.\nSr. Deputy County Counsel\nCounty of San Diego\n1600 Pacific Highway\nRoom 355\nSan Diego, CA 92101\nDear Mr. Bosworth:\nThis responds to your recent email to Bizunesh Scott, Chief Counsel of the Pipeline and\nHazardous Materials Safety Administration (PHMSA), concerning the planned transportation of\nradioactively contaminated steam generators from the San Onofre Nuclear Generating Station to\nClive, Utah for disposal. In your email, you state that the utility and its contractor are\nquestioning whether Federal hazardous material transportation law (Federal hazmat law)\npreempts the requirement of the County of San Diego for a \"moving permit to evaluate the route\nassociated with the movement of such large objects\" whose size will require certain traffic\ncontrols to be instituted, including the removal (and subsequent reinstallation) of traffic signals,\nstreet lights, and other infrastructure.\nYou indicate that you are seeking informal guidance, rather than asking the Department of\nTransportation (DOT) to issue an administrative determination whether Federal hazmat\ntransportation law preempts a State or local requirement concerning the transportation of\nhazardous materials. Accordingly, this letter summarizes the preemption provisions in Federal\nhazmat law and discusses some of the judicial and administrative decisions that appear to relate\nto this matter.\nIn 49 U.S.C. § 5125(a), Federal hazmat law provides that, in the absence of a waiver of\npreemption by DOT or specific authority in another Federal law, a requirement of a State,\npolitical subdivision of a State, or Indian tribe is preempted when:\n--it is not possible to comply with both the non-Federal requirement and the Federal hazmat\nlaw, a regulation prescribed under Federal hazmat law, or a hazardous material transportation\nsecurity regulation or directive issued by the Secretary of Homeland Security (DHS); or\n\n<<<PAGE 2>>>\n\n--as applied or enforced, the non-Federal requirement is an obstacle to accomplishing and\ncarrying out the Federal hazmat law, a regulation prescribed under Federal hazmat law, or a\nhazardous material transportation security regulation or directive issued by DHS\nIn addition, subsection 5125(b)(1) lists five subject areas on which a non-Federal requirement is\npreempted unless it is \"substantively the same as\" a requirement in the Federal hazmat law, a\nregulation prescribed under Federal hazmat law, or a hazardous material security regulation or\ndirective issued by DHS. Furthermore, subsection 5125(c) provides that a State or Indian tribe\nmay designate, limit, or restrict a highway route for transporting hazardous materials only in\naccordance with the procedural and substantive requirements of the Federal Motor Carrier Safety\nAdministration (FMCSA) set forth in 49 C.F.R. part 397, subpart C (with respect to non-\nradioactive materials) and 49 C.F.R. part 397, subpart D (with respect to radioactive materials).\nFinally, subsection 5125(f) provides that a State, political subdivision, or Indian tribe may\nimpose a fee related to transporting hazardous material only if the fee is fair and used for a\npurpose related to transporting hazardous material, including enforcement and planning,\ndeveloping, and maintaining a capability for emergency response\nA Federal court has noted that \"the propriety of local highway safety regulation has long been\nrecognized\" and that \"state highway safety regulations carry a strong presumption of validity.\"\nNational Tank Truck Carriers, Inc. v. Burke, 535 F. Supp. 509, 516 (D.R.I. 1982), aff'd 698\nF.2d. 559 (1\" Cir. 1983). See also the provision in FMCSA's regulations that: \"Every motor\nvehicle containing hazardous materials must be driven and parked in compliance with the laws,\nordinances, and regulations of the jurisdiction in which it is being operated, unless they are at\nvariance with specific regulations of the Department of Transportation which are applicable to\nthe operation of that vehicle and which impose a more stringent obligation or restraint.\" 49\nC.F.R. § 397.3.\nAccordingly, PHMSA (and its predecessor agencies) have found that \"[Jocal traffic controls are\npresumed to be valid.\" Inconsistency Ruling (IR) No. 20 (Triborough Bridge and Tunnel\nAuthority), 52 Fed. Reg. 24396, 24398 (June 30, 1987). Thus, \"rules of the road\" are normally\nassumed \"to be a proper form of state and local regulatory control applied to motor vehicles\ncarrying hazardous materials.\" IR-3 (Boston), 46 Fed. Reg. 18918, 18923 (Mar. 26, 1981),\ndecision on appeal, 47 Fed. Reg. 18457 (Apr. 29, 1982). At the same time, a state or locality\nneeds justification \"to single out radioactive materials traffic for different types of control than\nhazardous materials generally.\" IR-15(A) (Vermont), 52 Fed. Reg. 13062, 13064 (Apr. 20,\n1987).\nPHMSA has also found that \"[p]ermit requirements do not, per se, make it impossible to comply\nwith Federal hazmat law or HMR requirements, or create an obstacle to accomplishing and\ncarrying out Federal hazmat law or the HMR... Whether or not a permit requirement is\npreempted depends on the steps required to obtain the permit.\" Preemption Determination (PD)\nNo. 22(R) (New Mexico), 67 Fed. Reg. 59396, 59402-03 (Sept. 20, 2002), decision on petition\nfor reconsideration, 68 Fed. Reg. 55080 (Sept. 22, 2003), citing PD-9(R) (Los Angeles County),\n60 FR 8774, 8785 (Feb. 15, 1995). See also IR-28 (San Jose, California), 55 FR 8884 (Mar. 8,\n1990); IR-20; IR-2 (Rhode Island), 44 FR 75566 (Dec. 20, 1979); New Hampshire Motor\nTransport Ass'n v. Flynn, 751 F.2d 43 (1st Cir. 1984); Colorado Public Utilities Comm'n v.\n2\n\n<<<PAGE 3>>>\n\nHarmon, CV 88-Z-1524 (D. Colo. 1989), rev'd on other grounds, 951 F.2d 1571 (10th Cir.\n1991).\nA major concern with permit requirements is when the lead time for obtaining a permit - or the\ninformation which must be provided - creates a potential for unnecessary delay in the\ntransportation of hazardous materials. We have found that delay in the transportation of\nhazardous materials \"is incongruous with safe transportation\" and that \"the time between loading\nand unloading [should] be minimized,\" as articulated in 49 C.F.R, § 177.800(d): \"All shipments\nof hazardous materials must be transported without unnecessary delay, from and including the\ntime of commencement of the loading of the hazardous material until its final unloading at\ndestination.\" See IR-2, 44 Fed. Reg. at 75571; IR-28, 55 Fed. Reg. at 8890-91. However, in this\ncase, the potential for delay may be greatly reduced when there is a \"long lead time in planning\"\nthe shipment of these steam generators, as there would be with shipments of spent nuclear fuel.\nIR-17 (Illinois), 51 Fed. Reg. 20926, 20929 (June 9, 1986), decision on appeal, 52 Fed. Reg.\n36200 (Sept. 25, 1987).\nI hope this information is helpful. If you have further questions, please feel free to contact\nFrazer C. Hilder of my office at 202-366-6360, by fax to 202-355-7041, or by email to\nmike.hilder@dot.gov.\nSincerely,\nYept solome\noseph Solomey\nAssistant Chief Counsel for\nHazardous Materials Safety Law\nCC:\nMr. Mark Malzahn\nManager, RSG/OSG Transport\nSouthern California Edison\n14300 Mesa Road (M/S N47)\nSan Clemente, CA 92672","truncated":false,"body_characters":7393}