{"operation":"document","citation":"CHI-95-003","title":"Maryland Department of the Environment — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"1995-10-20","effective_on":null,"summary":"CHI-95-003 response to Maryland Department of the Environment concerning 171.1.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-95-003.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-95-003.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-95-003","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Hazmat/ChiefCounsel/CHI-95-003.pdf","body":"<<<PAGE 1>>>\n\nUS Depor tment\nof Tronsportot1 on\nResearch and\nSpecial Programs\nAdministration\n() tf1 Ce OI !he\n() 11ef Cuur1se1\n.i •r 1 SP.vP.n t! 1 St ·s V/\nv'v.1 ~ )'lifitJ l On U ': . . ~U ~ ):: J1\n;\nOCT 2 0 1995\nMr. Richard W. Collins\nDirector\nWaste Management Administration\nMaryland Department of the Environment\n2500 Broening Highway\nBaltimore, MD 21224\nDear Mr. Collins:\nI am responding to your August 15, 1995 letter addressed to Alan\nI. Roberts, Associate Administrator for Hazardous Materials\nSafety of the Department's Research and Special Programs\nAdministration (RSPA). Your letter requested comments on draft\nregulations that would require certain facilities that handle\nhazardous materials to obtain a permit from the Maryland\nDepartment of the Environment. These draft regulations include\nprocedural and substantive requirements, beyond payment of a\nrequired fee, for obtaining and maintaining the permit.\nAs I believe you already understand, RSPA does not have\nadequate resources to conduct thorough reviews of State and\nlocal requirements outside of the preemption determination\nprocess set forth in 49 C.F.R. § 107.201 et seq. Moreover,\nour review of draft requirements cannot consider the manner\nin which the requirements are actually \"applied or enforced,\"\na factor on which a determination of preemption often depends.\n49 U.S.C. § 5125(a) (2). Informal reviews are also hindered\nby the absence of the public input that occurs in the formal\ndetermination process established in the Federal hazardous\nmaterial transportation law, at 49 u.s.c. § 5125(d) (1).\nNonetheless, at your request, I have briefly reviewed the\ndraft regulations provided with your letter, and I am providing\nyou with my personal, informal, and unofficial comments\naddressed to whether these regulations are preempted by Federal\nhazardous material transportation law, 49 u.s.c. § 5101 et seg.\nI also enclose the most recent index and summary of preemption\ndeterminations and inconsistency rulings issued by RSPA. The\nOffice of the Chief Counsel for the Federal Railroad\nAdministration has advised me that these draft regulations do\nnot appear to raise issues of preemption under the Federal\nRailroad Safety Act, 45 U.S.C. § 421 et seg.\n-\n- ,.·· ...\n. .\n\n<<<PAGE 2>>>\n\n2\nBy their terms, the draft regulations appear to apply only to a\nfacility at which, during a calendar year, 100,000 lbs. or more\nor a single hazardous material are transferred \"from one mode of\ntransportation to another,'' and they do not apply to hazardous\nmaterials that are \"already in transportation.\" Mr. Gietka of\nyour staff has advised that the intention of this language is\nto cover facilities that receive hazardous materials in a rail\ntank car for further distribution and from which, following some\nperiod of storage, the hazardous materials are loaded into cargo\ntank motor vehicles for transportation to the ultimate user.\nMr. Gietka has stated that the rail carrier that delivers the\nhazardous materials to the intermediate storage facility is a\ndifferent entity than the owner of that facility, and that the\nrail tank car is not under active shipping papers while it is\nat the intermediate storage facility.\nAlthough the specific language of the draft regulations is not\nlimited to the situation described by Mr. Gietka, I assume that\nthe draft regulations would not apply to the unloading of\nhazardous materials from a cargo tank motor vehicle into a rail\ntank car. In that case, it would appear that the hazardous\nmaterials are \"already in transportation\" and any intermediate\nstorage would appear to be in the course of, and incident to,\nconsolidation and onward transportation (rather than\ndistribution). As a result, I understand that the condition\nthat makes the permit requirement applicable to a facility is\nthe act (or series of acts) of loading hazardous material into a\ntransportation vehicle or container, for onward transportation,\nfrom another transportation vehicle that has been used for\nintermediate storage (that was not incidental to, or in the\ncourse of, transportation).\nFederal hazardous material transportation law and the Hazardous\nMaterials Regulations (HMR), 49 C.F.R. Parts 171-180, apply to\nthe transportation of hazardous materials in commerce.\n\"Transportation\" means \"the movement of property and loading,\nunloading, or storage incidental to the movement.\" 49 u.s.c.\n§ 5102(12)·\n. At present, the HMR do not apply to intrastate\ncarriers by motor vehicle, and their shippers, so long as the\nhazardous material being transported is not a flammable\ncryogenic liquid in a cargo or portable tank, a hazardous\nwaste, hazardous substance or marine pollutant. 49 u.s.c.\n§ 171.l(a) (3). However, RSPA has proposed to extend the\ncoverage of the HMR to all intrastate transportation, in\nHM-200 (58 Fed. Reg. 36920, July 9, 1993; correction, 58 Fed.\nReg . 38111, July 15, 1993).\nRSPA has consistently considered that movements of hazardous\nmaterials solely within private property are not \"transporta-\ntion in commerce.\" - As- B'KJ:?lained in the preamble to RSPA' s\nrecent determinations concerning California and Los Angeles\n-\n---\n\n<<<PAGE 3>>>\n\n3\nRequirements Applicable to the On-site Handling and\nTransportation of Hazardous Materials, PD-8(R) - PD-ll(R), 60\nFed. Reg. 8774, 8777 (Feb. 15, 1995), Federal hazardous material\ntransportation law and the HMR do not apply to\nthe movement of hazardous material exclusively at a\nconsignee's facility. On the other hand, Federal\nhazmat law and the HMR regulate certain specific\ncarrier and consignee handling of hazardous materials,\nincluding unloading of railroad tank cars, incidental\nto transportation in commerce, even when that\nunloading takes place exclusively at a consignee's\nfacility.\nFor the same reasons, . Federal hazardous materials transportation\nlaw and the HMR apply to the loading of material from a storage\ncontainer into a vehicle or container for transportation, even\nwhen that loading takes place exclusively at a consignor's\nfacility.\nAs summarized in the enclosed index, in prior inconsistency\nrulings and preemption determinations, RSPA has found that non-\nFederal permits for transportation of hazardous materials are\nnot per se preempted. Rather, preemption depends upon the\nunderlying requirements for obtaining the permit. The following\nrequirements in the draft regulations for obtaining and\nmaintaining a permit appear to raise issues of preemption under\n49 u.s.c. § 5125:\n-the posting of \"appropriate warnings,\" to the extent that\nthese differ from the requirements in the HMR for marking,\nlabeling and placarding hazardous material in transporta-\ntion. See§ 5125(b) (1) (B). Note also the requirements\nof the Occupational Safety and Health Administration\nconcerning retention of DOT hazardous materials markings ,\nlabels and placards until a packaging is sufficiently\ncleaned of residue and purged of vapors to remove any\npotential hazards. 29 C.F.R. §§ 1910.1201, 1915.100,\n1917.29, 1918.100, and 1926.61.\n-the maintenance of a log or summary of all i ncidents\ninvolving hazardous materials, to the extent that this\neither differs from, or is redundant with, the HMR's\nrequirements concerning the written notification,\nrecording, and reporting of the unintentional release in\ntransportation of hazardous materi als (including loading).\nSee § 5125 (b) (1) (D) .\n\n<<<PAGE 4>>>\n\n4\n-the requirement for maintaining evidence of financial\nability and evidence of financial assurance, which are not\nrequired by the HMR as a condition for offering hazardous\nmaterials for transportation (as opposed to the on-site\nhandling or storage of hazardous materials that are not in\ntransportation) .\n-the permit fees, to the extent that these fees are not\nused exclusively \"for a purpose related to transporting\nhazardous material, including enforcement and planning,\ndeveloping, and maintaining a capability for emergency\nresponse.\" 49 u.s.c. § 5125(g) (1).\nI have not considered whether certain of the grounds set forth\nin the draft regulations, for denial, suspension, or revocation\nof a permit, would satisfy due process requirements, such as the\ncommission of any violation concerning any hazardous material\n(no matter how slight) or the submission of false information\n(regardless of its materiality).\nI hope this information is helpful. I apologize for the delay\nin responding to your letter, which I hope has not caused any\nhardship for you and your staff. Please feel free to contact\nFrazer Hilder of my staff at the above address, or by telephone\nat 202-366-4400, if you wish to discuss any of these matters\nfurther.\nSincerely,\n~~-~~\nAssistant Chief Counsel for\nHazardous Materials Safety and\nResearch and Technology Law\nEnclosure","truncated":false,"body_characters":8697}