{"operation":"document","citation":"CHI-97-006","title":"McKenna & Cuneo, LLP — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"1997-04-17","effective_on":null,"summary":"CHI-97-006 response to McKenna & Cuneo, LLP concerning 174.14.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-97-006.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-97-006.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-97-006","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Hazmat/ChiefCounsel/CHI-97-006.pdf","body":"<<<PAGE 1>>>\n\n400 Seventh Street. S.W.\nWashington. D.C. 20590\nAP I~ I 7 1997\nBY FACSIMILE\n'i\ni\nU.S. Department\nof Transportation\nResearch and\nSpecial P. rograms\nAdministration\nStanley W. Landfair, Esq.\nMcKenna & Cuneo, L.L . P.\n444 South Flower Street\nLos Angeles, CA 9 0071 - 2901\nDear Mr. Landfair:\nI am dismissing the April 4, 1997 petition for an\nadministrative determination of preemption , submitted by you\non behalf of Shell Oil Company (Shell), because Shell has not\nidentified an actual, existing non-Federal requirement\naffecting the transportation of hazardous material.\nShell's petition concerns the form of a proposed preliminary\ninjunction sought by a non-profit corporation, As You Sow\n(AYS), in litigation in the Superior Court of California.\nShell states AYS is asking the Court to issue an injunction\nthat would allegedly implement the requirement in Proposition\n65 (California Health & Safety Code § 25249 . 6) to provide ''a\nclear and reasonable warning\" of any \"chemical known to the\nstate to cause cancer or reproductive toxicity.\" That statute\na ppears to indicate that the required \"warning\" may be provided\nin a variety of ways, including \"genera l methods such as labels\non consumer products, inclusion of notices in mailings to water\ncustomers, posting o f not i ces, placi ng notic e s in public news\nmedia, and the like . \" California Health & Safety Code\n§ 25249.11. AYS's February 5, 1997 memorandum filed in support\no f the originally proposed preliminary injunction (in Exhibit C\nto Shell's petition) indicates that, under 22 California Code\no f Regulations § 12 601( a ),\nthe method employed to tra nsm i t t h e warning\nmust be reasonably calcula ted, considering\nthe alternative m ethods a v aila ble under the\ncircumstances, to make the wa r ning message\navailable to the ind i v idua l p rior t o exposure.\nIn the original proposed prel i minary inj uncti on (in Exhibit C\nto Shell's petition), AY S a s k ed the Court t o require Shell to\nprint on , or a ffix to \"the c ontainer or label of each Toluene\nProduct, prior to shipment to Shell's customers in Califor nia\"\nthe fo llowing word s :\n\n<<<PAGE 2>>>\n\n2\nWarning: Toluene is a chemical known to the\nState of California to cause birth defects or\nother reproductive harm.\nThe Research and Special Programs Administration (RSPA) has now\nreceived from AYS's counsel a revised form of preliminary\ninjunction, in which the request has been modified to require\nthe above-quoted \"Warning\" language on ''the container or label\nof each Toluene Product, once it is out of transit and\ntransferred to Shell's customers in California.\" In its\naccompanying April 14, 1997 reply memorandum, AYS states that\nit is not trying to enforce Proposition 65 while\nShell's chemical products are \"in transit.\"\nSimilarly, AYS is not requesting that Shell\nprovide reproductive toxicity warnings on, or\nattached to, the tanker trucks, that deliver the\ntoxins. AYS seeks to ensure that Shell\nprovide clear and reasonable warnings when it\ntransfers the chemical product to its customer,\nafter the product is unloaded and, thus, out of\ntransit.\nBased on the materials available to me, I conclude that (1) the\nabove-quoted \"Warning\" language is not explicitly required by\nthe California statute or regulations, and (2) there is no\nrequest that this \"Warning\" language be required on a package\nof hazardous materials in \"transportation,\" i.e., during \"the\nmovement of property and loading, unloading, or storage\nincidental to the movement.\" 49 U.S . C. § 5102(12). For these\nreasons, there is no \"requirement ·of a State .\" for me to\nconsider under the provisions of 49 U.S.C. § 5125(d) and 49\nC.F.R. § 107.203.\nRSPA's Office of the Chief Counsel will respond to your\nseparate request for an informal, advisory opinion concerning\nthe possible preemptive effect of 49 U.S.C. § 5125 on a\nrequirement to print or affix the above-quoted \"Warning\"\nlanguage on rail tank cars containing toluene.\nSincerely,\nAlan I. Roberts\nAssociate Administrator for\nHazardous Materials Safety\ncc: The Honorable Daniel E. Lundgren","truncated":false,"body_characters":4067}