City of Fairbanks, AK — Hazardous Materials Safety Interpretation

Page 1• of Transpontation US. Department nie! Couns lice of tr 100 Sevenin SI Adassegin SC 20590 Special Programs Research and Administration JUN 27 1996 • Mr. Michael Pulice Director of Public Safety City of Fairbanks 656 7th Avenue Fairbanks, AK 99701 • • Dear Mr. Pulice: I am responding to your April 22, 1996 facsimile letter addressed to Mr. Hilder of my staff concerning shipments of ammonium nitrate through a rail yard in the center of Fairbanks. You raise questions concerning State and local regulation of hazardous materials at various points during these shipments. The situation you describe involves the delivery at the ¿airbanks rail yard, lb. rail car containing ammonium nitrate. approximately once a week, of a 100,000- You this rail car is placed on a siding for off-loading into truck state that Fairbanks. hoppers for further transportation to a mine location south of cars containing ammonium nitrate are present on this siding at You also indicate that as many as five full rail any one time. You the Fairbanks rail yard for delivery and storage of large state that your department wishes to prohibit the use of shipments of armonium nitrate and other hazardous materials that will be used at this mine. You indicate that there is a rail siding south of Fairbanks, closer to the mine site, which company opposes use of this siding on the grounds that this 1s sufficient to hold several rail cars, but that the trucking instances of theft and vandalism. location is difficult to secure and there have been past As I believe you already understand, the Research and Special to conduct thorough reviews of state and local requirements Programs Administration (RSPA) does not have adequate resources outside of the preemption determination process set forth in by the 49 C.F.R. S 107.201 st seq, Informal reviews are also hindered absence of the public input that occurs in the formal determination process established in the Federal hazardous material transportation law, at 49 U.S.C. § 5125 (d) (1). Also, there is no information as to the manner in which the requirements are actually "applied or enforced, " a factor on which a determination of preemption often depends. 49 U.S.C. S 5125 (a) (2).#

Page 22 Nonetheless, at your request, I am providing my personal, your letter. informal, and unofficial comments on the situation discussed in S 5125 preempts either (1) a local prohibition on storage of On this basis, I do not belleve that 49 U.S.C. ammonium nitrate at the Fairbanks rail yard for longer than the period of time necessary for the off-loading and onward movement of the ammonium nitrate to the mine site, or (2) a requirement that rail cars containing ammonium nitrate must be delivered to the trucking company at the rail siding south of securely and (b) the State or other political jurisdiction in Fairbanks when (a) this delivery can be done safely and that requirement. which that siding is located agrees with and joins in imposing answered as follows: The four questions set forth in your letter are rephrased and 1. Do Federal hazardous material transportation law, 49 U.S.C. S 5101 et seg., and the Hazardous Materials ammonium nitrate in rail cars on a siding at the Regulations, 49 C.F.R. Parts 171-180, apply to the Fairbanks rail yard? . Any "storage" incidental to the "movement" of property is considered to be a part of the material transportation law and Hazardous Materials transportation covered by the Federal hazardous Regulations. The issue is not whether hazardous materials are in "storage," as opposed to being in "transportation, " but whether any storage is part of the transportation. Storage that is incidental to material transportation law and regulations. transportation is governed by the Federal hazardous 2. Is there a limit on the time during which these rail cars can be in storage incidental to their movement and, therefore, subject to federal regulation? There is no absolute time limit. Whether the hazardous materials in these rail cars are governed by Federal hazardous material law and regulations depends on whether the storage is incidental to the continued movement of the ammonium nitrate or whether the storage is for another purpose. However, a rail carrier must forward a shipment of hazardous materials within 48 hours of receipt (plus Saturdays, Sundays and holidays). 49 C.F.R. S 174:14#

Page 33 3. In what instances do Federal regulations supersede local regulations? I enclose a copy of 49 U.S.C. S 5125 which provides concerning the transportation of hazardous materials in summary, that a State and local regulation is preempted in the following situations: a. when it is impossible to comply with both the • Federal regulation and the State or local regulation. b. when the State or local regulation, as applied and carrying out of the Federal hazardous or enforced, is an "obstacle" to accomplishing material transportation law and regulations. c. when the State or local regulation concerns a same as" the Federal hazardous material "covered subject" and is not "substantively the transportation law and regulations. The five covered subjects are listed in S 5125 (b) (1). 4. Are there federal regulations governing the handling, separation, and transloading of ammonium nitrate? Yes. Handling, loading, and separation regulations governing rail transportation are contained in 49 C.F.R. Part 174 (see especially SS 174.55-174.81 and 174.510-174.580) • The comparable regulations applicable to motor carrier transportation are set • =': forth in Part 177 (see especially SS 177.834- addition to the classification of hazardous materials 177.848). These nodal-specific requirements are in in S 172.101 (Hazardous Materials Table), the genera. requirements for shipments and packagings in Part 173, and the hazard communication requirements in Part 172, Subparts B-G. For additional information, I also enclose the most recent index and summary of preemption determinations and inconsistency rulings issued by RSPA.#

Page 44 Please feel free to contact Mr. Hilder of my staff at the above discuss any of these matters further. address, or by telephone at 202-366-4400, if you wish to Sincerely, Done, Enacatio for Edward Assistant Chief Counsel for i. Bonekemper, III Hazardous Materials Safety and Research and Technology Law Enclosures •.. •#