Horton, Knox, Carter, & Foote — Hazardous Materials Safety Interpretation

Page 1US. Department Office of the of transpontation Chiet Counsel 400 Sevenin Si Sw Wasningion DC 20590 Research and Speciai Progromis Administration JUN 3 1993 Ms. Jo Ann Willans Office of Chief Counsel (GC-12) U.s. Departuent of Energy washington, D.C. 20585 Dear Ma. Willians: On April 15, 1993, at a nesting attended by ropresentatives of this office, the Federal Highway Adninistration, the Departuent of Energy (DOI) and the University of California, ve discussed the application of the Hazardous Materials Transportation Act (HMTA), 49 App. U.S.C. SS 1801 It Ilde, to hazardous saterials transportation at the Los Mlanos National Laboratory (LANL) • This seating followed an inquiry to the Research and Special Prograns Administration (RSPA) from the University's LANI Counsel, Ellen M. Castille. Inquired whether the HHTA and its Implesenting regulations, Specifically, Ma. Castille 49 C.I.R. Parta 171-180 (the Hazardous Materiala Regulations OI HMR), apply to the transportation of hazardous saterials by the University in ita capacity as operator, under contract to the DOI, of the LANk. This letter sets out the jurisdictional frasevork of the HITA as it applies to hazardous materials transportation by Federal agencies and their contractors. Although RSPA exercises rulenaking authority under the HITA with respect to all bazardous materials transportation in comerce, enforcement authority over land-based transportation is shared with the Federal Highway Administration and the faderal Railroad Administration. Unifora Safety Act, Pub. L. No. 101-615, 104 Stat, 3244 (1990), The INTA, as axended by the Hazardous Materiale Iransportation applies to Many person" vho transports hazardous materials in comerce. 49 App. U.S.C. S 1804(a) (3). The tern "person" includes any: government or Indian tribe when it offers hasardous saterials for transportation in in furtherance of' a comercial commerce or transports hazardous materials antarprise....#

Page 22 Ide at S 1820(11). Hazardous naterials transportation by a Federal, State or • local government agency or an Indian tribe, transportation is "in furtherance of a comercial enterprise." then, is subject to regulation under the HMTA when that RSPA defines this tera by its converse: governmental transportation is not in furtherance of a comercial enterprise when it is carried out (1) by government personnel and (2) IoI a governmental purpose. The sphere of "governmental purpose" cannot be delineated in the abstract. When the activity in conjunction with which authorized, when it is a traditional "sovereign" activity or the transportation occurs is constitutionally mandated or one falling within the police power, or when its benefite accrue to the public as a whole, it 1s likely to fall within the realm of the governnental purpose. The purpose is nore apt to be deened non-governmental if there is a conscious purpose to generate a profit, if the activity is undertaken by a public with, or displaces, the private sector. Each case must be corporation with linited liability, or il the activity corpetes considered on its : facts. When the transporter is not the Federal Government itsell, but a Federal contractor, the IMTA provides: Any person who, under contract with any departuent... of the federal government, transports, or causes to be transported or shipped, a hazardous material ... shall be subject to and couply vith all provisions of (the HMTA], all orders and regulations issued under (the INTA], and all other substantive and procedural requiresents of Federal, State and local governaents and Indian tribes (except such requirenents that have been preempted by this chapter or any other federal law), in the sane manner and to the sare extent as any person engaged in such activities that are in or affect cornerce is subject to such provisions, orders, regulations, and requirements. 49 App. U.S.C. S 1818. This provision, added to the statute by the 1990 anendment, nerely clarified existing law. SAR H. Rep. No. 101-144 (Part 2), 101 Cong., 20 Sess. 43 (1990) (It is the Connittee's fira position that [section 1818) simply restates existing law."). The provision neans that a Federal contractor cannot clain sovereign immunity and does not share in the#

Page 33 exception from HMTA jurisdiction conferred on the governmental agency itself. Therefore, the contractor's transportation activity is subject to HMTA regulation if that activity is "in commerce." RSPA accords the "in comnerce" requirement its accepted meaning. See 49 App. U.S.C. S 1802(2) (defining transportation in "commerce" as transportation that is or affects interstate trade or traffic). Thus, the HMIA does not apply to trans- portation that is entirely on private property and neither by a faderal contractor 1s not in connerce if it takes place rollowe not crosses a public way. analogously, transportatior entirely on federal property to which there is no general public right ol access, or Il public access lagally is deniad during the period of transportation. Were the University of California not itsell a government performance of its contractual duties vould be subject to the agency, its transportation of hazardous materials in the HMTA, to the extent transportation occurred on public roads. However, because the University 18 a governmental body, its hazardous naterials transportation as the operator of the Los subject to the HMTA, provided that transportation is by Alamos National Laboratory, on public roads ox not, is not governaent personnel and for a governnental purpose. Governnental bodies, as well, are exempt from the registration and fee requirements of 49 C.F.R. Subpart 107.600, even where they transport hazardous materials in cornerco. 49 C.F.R. S 107.606. And where transportation othervise vould be subject to the HMTA, it may be excepted from regulation by a specific excepting certain national security shipments of Class 7 code provision (leGe, 19 C.I.R. SS 173.7(b) and 177.806 (b), radioactive materials). Where the University'" hazardous naterials transportation, or sone part of it, is exempted from HMIA Jurisdiction, the University and DOE Still may find it desirable to agree, or DOE may choose to require, that transportation shall be in particularly given that it may not always be clear where the accordance with IMR standards. Such a course may be sensible, line between governaental and non-governmental purpose líes. This decision, however, would be one not of the application of the HMIA, but rather of contractual obligations owed to the DOE by the University apart from BMIA Or U.S. Departaent of Transportation Juriadiction. If the HMR did not otherwise apply, the University's agreement, voluntary or through contract, to comply with the MR would not invoke U.S. DOT enforcenent jurisdiction.#

Page 4I trust this guidance is of assistance to you. free to call ne at 202-366-4400 if you have any further Please feel questions on this matter. Sincerely, ENt. Bana Assistant Chief Counsel Edwara i. Bonekemper, III Hazardous Materials Safety & Research and Technology Law CC: Ellen M. Castille Paul Brennan Larry G. Blalock#