{"operation":"document","citation":"CHI-97-007","title":"Center for Legal and Social Justice Immigration and Human Rights Clinic — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"1997-05-16","effective_on":null,"summary":"CHI-97-007 response to Center for Legal and Social Justice Immigration and Human Rights Clinic concerning 171.8, 174.14, 177.800.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-97-007.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-97-007.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-97-007","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Hazmat/ChiefCounsel/CHI-97-007.pdf","body":"<<<PAGE 1>>>\n\nUS Department\nof Transportation\nResearch and\nSpecial Programs\nAdministration\nOffice of the\nChief Counsel\n400 Seventh St.. S.W\nWashington . D.C 20590\nMAY I 6 1997\nBY Fl\\.:::::SH1 ILE\nMr . Phillip A. Doyle, R.E.A.\nCenter for Lega l and Socia l Justice\nImmigration and Human Rights Clinic\n2507 N.W. 36th Street\nSan An t on i o, TX 78228\nDear Mr. Doyle:\nI am responding to your request for an informa l evaluation of\nArticl e IV of a proposed Hazardous Materials Handling and\nTransportation Ordinance for the City of Laredo , Texas (Draft\nTwo ) .\nAs I believe you already understand, the Research and Special\nPro grams Admini s tration (RSPA) does not have adequate resources\nto conduct thorough reviews of State and local requirements\nouts ide of the preemption determination process set forth in\n49 C.F .R. § 107.201 et seq. Moreover, informal reviews are\nhindered by the absence of the public input that occurs in the\nformal determinat i on process under 49 U.S.C. § 5125 (d) (1 ) . To\nthat end, I understand that Ms . Machado of my offi ce has\nalready provided you wi th an index and summary of preemption\ndeterminat i ons and inconsistency rulings issued by RSPA . (The\nmost current versions of that index and summar y may be found on\nthe Chief Counse l' s Internet home page , at \" http : // rspa-\natty. dot . gov \". )\nNonetheless , at your request , I have briefly reviewed the draft\nArticle IV you sent me , and I am providing you with my\npersonal , informal, and unofficial comments addr essed to\nrequirements applicable to hazardous materi a l s that a re i n\ns t o rage incidental to transportation at \" Short- term Storage\nFacilities. \" I understand that, under Article IV , \" Long- term\nSto rage \" and \" Temporary Storage \" will not apply t o any\nhazardous materials that are in transportation , i ncluding the\nl o ading , unloading and storage incidental to that\ntransportation.\n\n<<<PAGE 2>>>\n\n2\nAs you are aware, RSPA has initiated a rulemaking proceeding to\nbetter define \"loading, unloading, and storage incidental\" to\ntransportation, and the applicability to these activities of\nFederal hazardous material transportation law and the Hazardous\nMaterials Regulations (HMR). Accordingly, I am not in a\nposition now to comment on the proposed definition of \"Storage\nIncidental to Transportation\" in proposed Sec. 15.68.200.D.\nFor the purposes of these comments, I am assuming that the\napplicability of Subpart IIIB to those hazardous materials\n\"which remain under active shipping papers upon arrival at a\nfacility\" is coextensive with the HMR's coverage of hazardous\nmaterials in storage incidental to transportation.\nYo u should also be aware that the Department of Transportation\nhas proposed to change the definitions of \"hazmat employee\" and\n\"hazmat employer\" in 49 U.S.C. § 5102. This proposal is in\nSection 1000 2 of the Department's proposed National Economic\nCrossroads Transportation Efficiency Act of 1997 that was sent\nto Congress last month. It can also be accessed through the\nChief Counsel's home page.\nThe criteria for Federal preemption of local requirements\naffecting the transportation of hazardous materials are set\nforth in 49 U.S.C. 5125. Non-Federal requirements are\npreempted (unless they are otherwise authorized by Federal law)\nwhen they (a) make it impossible to comply with Federal\nhazardous material transportation law or the HMR; (b) create an\nobstacle to accomplishing and carrying out Federal hazardous\nmaterial transportation law or the HMR; or (c) concern any of\nfive \"covered subjects \" and are not \"substantively the same as \"\nrequirements in Federal hazardous material transportation law\nor the HMR.\nUnder the proposed ordinance, each Short-term Storage Facility\nis required to hold the \"hazardous materials storage permit\"\nspecified in Sec . 15.68.500. RSPA has stated many times that\nany permit requirement must be conside red in the context of the\nrequirements for obtaining a permit ; i.e., the manner in which\na permit requirement is applied and enforced is often critical\nto any determination whether a permit requirement is preempted.\nIn proposed Sec. 15.68.500 :\n- the \"information required by [the application] form\" to\nbe supplied by the City is not specified.\n\n<<<PAGE 3>>>\n\n3\n-although a Hazardous Materials Management Plan and\nHazardous Materials Inventory Statement need not be\nsubmitted, and secondary containment is n o t required \"for\nany [hazardous] material stored under active shipping\npapers,\" it is unclear whether \"construction plans\" are\nnecessary, whether the permit will specify authorized\n\"storage system(s),\" and whether an additional permit will\nbe required \"whenever any storage system is substantially\nmodified, replaced, closed, or removed . \"\n-to the extent that permit fees for Short-term Storage\nFacilities are used for administering and enforcing\nrequirements related to other types of storage facilities,\nas apparently contemplated, there would be a violation of\n49 U.S.C. § 5125(g) (1) which requires that fees related to\ntransporting hazardous materials must be \"fair and used\nfor a purpose related to transporting hazardous material,\nincluding enforcement and p lanning, deve l oping , and\nmaintaining a capability for emergency response.\"\nThe applicability of Subpart IIIB to hazardous wastes appears\nto be somewhat conflicting . Sec. 15.68.400.B states that the\nhazardous materials regulated at Short-term Storage Facilities\ninclude \"hazardous wastes . . as defined in 49 CFR [§] 171.8 \"\nand also \"materia l s designated as hazardous wastes as that term\nis defined in 40 CFR 261 et seq.\" However, under the HMR, the\ntwo categories are not coextensive. Only hazardous was tes that\nare \"subj ect to the Hazardous Waste Manifest Requirements of\nthe U.S. Environmental Protection Agency specified in 49 CFR\npart 262 \" are regulated as hazardous materials under the HMR.\nMoreove r, the definitions (Sec. 15.68.200) state that\n\"hazardous material \" includes hazardous wastes , but other\nprovisions in the proposed ordinance seem to regard the\nhazardous wastes as separate from hazardous materials. For\nexample , the words \"haz ardous materials or wastes \" are used in\nSecs . 15.68.410.B and 15 . 68.420.A .\nThe meaning and effect of the proposed \" 48 Hour Rule \" in Sec .\n15 . 68.400 . D are also not clear, including the alternative of\n\" suitable storage \" when hazardous materials are not forwarded\nwithin 48 hours. This section may create time limits that\nco nflict with:\n\n<<<PAGE 4>>>\n\n4\n-49 C.F.R. § 177.800(d) , providing that highway shipments\nof hazardous materials \"must be transported without\nunreasonable delay, from and including the time of\ncommencement of the loading of the hazardous material\nuntil its final unloading at destination.\"\n-49 C.F.R. § 174.14(a), providing that a rail carrier\n\"must forward each shipment of hazardous materials\npromptly and within 48 hours (Saturdays, Sundays, and\nholidays excluded) . except that where biweekly or\nweekly service only is performed, a shipment of hazardous\nmaterials must be forwarded on the first available train.\"\n-4 0 C.F.R. § 263 .1 2, allowing a transporter to store\nhazardous wastes at a transfer facility up to ten days\nwithout obtaining the permit required for a treatment,\nstorage, and disposal facility.\nIn Sec. 15.68.420.A.l, the reference to \" standards established\nunder 49 CFR parts 100-199 for the safe packaging, storage ,\nloading , unloading and transportation of [hazardous] materials\"\nshould be revised. The HMR consist of parts 171-180 of\n49 C.F .R. Parts 101-130 do not appear applicable and 49 C.F . R.\nparts 190-199 relate to pipeline safety.\nRSPA considers that 49 U.S.C. § 5125(b) (1) would preempt the\nrequirement in Sec . 15.68.430.A.l for a carrier to directly\nprovide the City with a copy of an incident report submitted\nunder 49 C.F.R. § 171.16. The submission of written incident\nreports is a covered subject, and the City's requirement for a\nseparate submission is an additional requirement that is not\nsubstant ively the same as submission of the written report t o\nRSPA . The City may obtain from RSPA a copy of any report\nsubmitted to RSPA .\nI hope this info rmation is helpful . I have attempted to deal\nwith all of the proposed requirements applicable to Sho rt- term\nStorage Facilities, but my failure to discuss any of them\nshould not be considered as a finding that a specific proposed\n\n<<<PAGE 5>>>\n\n5\nrequirement would not be preempted. If you have specific\nquestions, or wish to discuss any of these matters further,\np lease feel free to contact me or Frazer Hilder of my staff,\nat 202-366-4400.\nSincerely,\n~'~~\nEdward H. Bonekemper, III\nAssistant Chief Counsel for\nHazardous Materials Safety and\nResearch and Technology Law","truncated":false,"body_characters":8725}