{"operation":"document","citation":"CHI-95-001","title":"U.S. EPA — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"1995-06-13","effective_on":null,"summary":"CHI-95-001 response to U.S. EPA concerning 171.1, 171.8.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-95-001.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-95-001.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-95-001","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Hazmat/ChiefCounsel/CHI-95-001.pdf","body":"<<<PAGE 1>>>\n\nUS Deportment\nof Transportation\nResearch and\nSpecial Programs\nAdministration\nOffice of the\nChief Counsel\n400 Seventh SI . SW\nWashington . D.C 20590\nJUN I 3 1995\nMr. Bill Keffer\nSenior Engineering Advisor\nEmergency Response and Removal Program\nU.S. Environmental Protection Agency\nRegion 7\n25 Funston Road\nKansas City, KS 66115\nDear Mr. Keffer:\nThis responds to your May 23 letter and follows up on our\nconversation at the COHMED conference in Tampa, concerning\nthe applicability of the Hazardous Materials Regulations (HMR,\n49 C.F.R. Parts 171-180) to activities of the Environmental\nProtection Agency (EPA) • ·\nYou describe two situations in which EPA is involved in the\ntransportation of hazardous materials (which may include EPA-\nregulated hazardous wastes): (1) sending or conveying samples\nof hazardous materials for analysis, and (2) removing hazardous\nmaterials that have been released (either during transportation\nor at a fixed facility) as part of \"cleanup\" efforts.\nFirst, the applicability of the HMR to these activities is\ngoverned by the definition of a \"person\" subject to the HMR.\nAs explained in Howard Wilson's May 26, 1994 memo (which you\nenclosed with your letter), a governmental agency or\ninstrumentality must comply with the HMR when it: (1) offers\nhazardous materials for transportation in commerce, or\n(2) transports hazardous materials in furtherance of a\ncommercial enterprise. See 49 u.s.c. § 5102(9) and 49 C.F.R.\n§ 171.8.\nSecond, as also noted in Mr. Wilson's memo, government\ncontractors are subject to the HMR just as any private person or\nenterprise. See 49 u.s.c. § 5126(a) and 49 C.F.R. § 171.l(c).\nThird, RSPA considers that transportation is not \"in commerce,\"\nand therefore not subject to the HMR, when it occurs entirely\nwithin (1) private property or (2) governmental property to\nwhich the public does not have general access. On the other\nhand, transportation is considered \"in commerce\" whenever it\ntakes place on a public highway. This would include crossing\na public road to travel between two parts of a government\ninstallation.\n\n<<<PAGE 2>>>\n\n'\n·· 2\nThis means that the HMR (including requirements for training of\n\"hazmat employees\") apply when:\n1. EPA offers (or ships) samples or \"cleanup\" materials\nfor transportation by any non-governmental carrier\n(~, Federal Express, United Parcel Service,\nConsolidated Freightways, or a government contractor).\n2. EPA's contractors ship or transport hazardous\nmaterials ..\nRSPA considers that the HMR do not apply when:\n1. EPA's own employees transport hazardous materials\nthemselves.\n2. EPA's contractors remain on government property to\nwhich there is no general public access or on private\nproperty.\nAt the same time, RSPA encourages full compliance with the HMR\nby governmental agencies that need not follow the HMR's\nrequirements because they are excluded from the definition of a\n\"person.\" Mr. Wilson's memo indicates that, in an EPA Order,\nEPA requires compliance with the Federal hazardous materials\ntransportation law and the HMR. Your June 24, 1994 memo also\ncontains strong arguments in favor of governmental compliance\nwith the HMR in all situations, including those when compliance\nis not required. However, the strong preemption provisions in\nthe Federal law governing the transportation of hazardous\nmaterials, at 49 u.s.c. § 5125, would likely preclude State\nenforcement of state requirements, applicable to the\ntransportation of hazardous materials, in those situations when\na governmental agency is not required to comply with the HMR.\nI hope this information is helpful. If you have additional\nquestions, you may contact me at 202-366-4400.\nSincerely,\nV-:? d: -\nd~ / / .\n~: z /~ ~- -, ~\nEdward H. Bonekemper, III\nAssistant Chief counsel for\nHazardous Material Safety and\nResearch and Technology Law\ncc: Howard Wilson, Chief\nTechnical Assistance and Evaluation Branch\nSafety, Health and Environmental Management Division\nU.S. Environmental Protection Agency\nW ashington, DC 20460","truncated":false,"body_characters":3999}