{"operation":"document","citation":"CHI-98-003","title":"Westchester County — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"1998-08-13","effective_on":null,"summary":"CHI-98-003 response to Westchester County concerning 171.8, 172.701, 172.704.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-98-003.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-98-003.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-chi-98-003","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/Hazmat/ChiefCounsel/CHI-98-003.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nOffice of the\nChief Counsel\n400 Seventh St.. S.W\nWashington, D.C. 20590\nResearch and\nAdministration\nSpecial Programs\nAUG 13 1998\nThomas G. Gardiner, Esq.\nSI. Assistant County Attorney\nRoom 600\nMichaelian Office Building\n148 Martine Avenue\nWhite Plains, NY\n10601\nDear Mr. Gardiner:\nI am responding to your request to Frazer Hilder of my staff for\nan informal evaluation of a proposal to add to the Westchester\nCounty Sanitary Code a new Article XXVII, entitled Pollution\nPrevention, applicable to carriers of fuel, chemicals in\nquantities\nthat require a placard, and hazardous materials being\ntransported in the course of spill response and remediation.\nAs I believe you already understand, the Research and Special\nPrograms Administration (RSPA) does not have adequate resources\nto conduct thorough reviews of State and local requirements\noutside of the preemption determination process set forth in 49\nMoreover, informal reviews are hindered\nby the absence of the public input that occurs in the formal\nMoreover, there is no information as to the manner in which a\npreemption determination process under 49 U.S.C. § 5125 (d) (1).\nrequirement is actually \"applied or enforced,\" a factor on which\na determination of preemption often depends. 49 U.S.C.\n§ 5125 (a) (2) •\nNonetheless, at your request, I have briefly reviewed proposed\nArticle XXVII as provided by you, and I am providing you with my\npersonal, informal, and unofficial comments.\nRSPA's most recent\nI am also enclosing\nsubject matter index of preemption\ndeterminations, inconsistency rulings, and court decisions. This.\nindex and information on the status of applications for\npreemption determinations are also available on the homepage of\nRSPA's Office of the Chief Counsel: http://rspa-atty.dot.gov.\nThe criteria for preemption of non-Federal requirements\nconcerning the transportation of hazardous materials are set\nforth in 49 U.S.C. $ 5125.\nIn summary, a non-Federal requirement\nis preempted (unless it is otherwise authorized by Federal law)\n\n<<<PAGE 2>>>\n\n2\n(a) it is not possible to comply with both the non-Federal\nrequirement and the Federal hazardous material\ntransportation law or RSPA's requirements in the\n171-180;\nHazardous Materials Regulations (HMR), 49 C.F.R. Parts\n_(b) the non-Federal requirement is an obstacle to\naccomplishing and carrying out Federal hazardous\nmaterial transportation law or the HMR;\n(c)\nthe non-Federal requirement concerns any of five\n\"covered subjects\" and is not \"substantively the same\nas\" requirements in the Federal hazardous material\ntransportation law or the HMR;\n(d) a non-Federal routing requirement does not comply with\nregulations of the Federal Highway Administration\n(FHWA) ; or\n(e) a fee related to the transportation of hazardous\nmaterial is not fair or is used for a purpose that is\nnot related to transporting hazardous material\n(including enforcement and planning, developing, and\nmaintaining a capability for emergency response) •\nThese preemption criteria are based on congressional findings\nhazardous materials are \"necessary and desirable\" to promote\nthat national uniform requirements for the transportation of\nsafety. Public Law 101-615, § 2, 104 Stat. 3244 (1990).\nCongress considered Federal preemption necessary \"to preclude a\nmultiplicity of State and local regulations and the potential for\nvarying as well as conflicting regulations in the area of\nhazardous materials transportation.\" S. Rep. No. 1102, 93rd\nCong. 2nd Sess. 37 (1974).\nAt the outset, I note that Article XXVII \"is intended to be\nconsistent with applicable federal and state laws and regulations\nand shall be construed, whenever possible, to achieve such\nconsistency.\" As Mr. Hilder advised you over the telephone, New\nYork has adopted the HMR with respect to highway transportation,\nenforcing the HMR\nand 49 U.S.C. S 5125 does not prohibit a county from adopting and\ntransportation.\nas county requirements for highway\nIn the \"Definitions\"\ntwo problems.\nFirst, the definition of \"Hazardous Materials\"\nsection of Article XXVII, there appear to be\ndiffers from\nthe definition of that\nterm in the HMR. A local\nrequirement on the \"definition, description, [or] classification\n\n<<<PAGE 3>>>\n\n3\nof hazardous material\" is preempted if it is not substantively\nthe same as the HMR. 49 U.S.C. $ 5125 (b) (1) (A). Second, the\nterm \"Bulk Chemical Carrier Vehicle\" covers any vehicle \"required\nto bear a placard\" under the HMR. This would likely cause\nconfusion because placards are required on a freight container or\nmaterials.\ntransport vehicle that contains non-bulk packages of hazardous\nFor materials listed in Table 1 of 49 C.F.R.\n$ 172.504 (e), placarding is required for any quantity; for\nmaterials listed in Table 2 of that section, placarding is\nrequired for 1,001 Ibs. (454 kg) or more, which is less than the\nweight of three 55-gallon drums of most liquids. In contrast, a\n\"bulk packaging\" in the HMR is a container with no intermediate\nform of containment and a capacity greater than 119 gallons (450\nL) Or 882 Ibs. (400 kg). 49 C.F.R. § 171.8.\nArticle XXVII would require various documents to be carried on a\ncleaned up by a contractor:\nvehicle transporting fuel, chemicals, or hazardous material being\nlogs of inspections and equipment replacements over the last\nvehicle permits, operator permits,\nthree months, and written spill contingency plans. The HMR do\nnot require any of these documents to be carried on the vehicle.\nThe Federal Highway Administration (FHWA) requires owners of more\nthan one commercial motor vehicle to have its drivers perform a\nneed be \"carried\ndaily inspection, but only the \"last vehicle inspection report\"\non the power unit.\" 49 C.F.R. S 396.11 (c) (3).\non the vehicle have\nAs a general matter, requirements to carry additional documents\nthe potential to cause confusion and\ninterfere with compliance with\nshipping papers, including the\nprovisions in the HMR concerning\npapers to emergency response personnel in the event of an\nready availability of shipping\nincident.\nAccordingly, such\nrequirements are preempted under 49\nU.S.C. § 5125 (a) (2) and (b) (1) (C). See the cases under\n\"Information/Documentation Requirements\" and \"Shipping Papers\" in\nthe enclosed index.\nto have\nIn addition, FHWA requires drivers of commercial motor vehicles\ncommercial driver's license (CDL) issued by a State or\nother jurisdiction in accordance with 49 C.F.R. Part 383.\nthe vehicle is required to be placarded for hazardous materials,\nWhen\na hazardous materials endorsement on the CDL is required.\nHowever, the driver of a commercial motor vehicle may not hold\ntwo driver's licenses. 49 C.F.R. § 383.21 (a) .\nThe requirements to obtain a vehicle permit are not spelled out\nin Article XXVII. RSPA has found that transportation permits are\nnot preempted per se; rather, preemption depends on the\nconditions to obtain the permit. Thus, RSPA has found that\n\n<<<PAGE 4>>>\n\n4\nextensive\nwith broad discretion to issue or deny a permit, and\ninformation and documentation requirements, coupled\ntime limits (e.g., long lead times or short intervals) for\napplying for a permit that do not fit normal shipment planning\nwill make a permit requirement preempted.\n\"Permit Requirements\" in the enclosed index.\nSee the cases under\nAny fees charged for permits would be preempted if the amount of\nthe fee is not \"fair\" and the fees collected are not used for a\npurpose that is \"related to transporting hazardous material\n(including enforcement and planning, developing, and maintaining\na capability for emergency response).\" 49 U.S.C. § 5125(g). Sec\nthe cases under \"Fee Requirements\" in the enclosed index.\nArticle XXVII would require operators of fuel carriers, bulk\nchemical carriers, and vacuum trucks used to remove a spill to\ncomplete a training course in order to obtain a \"registration\ncard\" or operator permit. The training program would have to\nmeet the requirements of the Department of Labor's Occupational\nSafety and Health Administration (OSHA) in 29 C.F.R. § 1910.120\nand be approved by the\nHealth Commissioner. At\nthe Health Commissioner, the training program would also include\nthe discretion of\nthe Health Department's Spill Prevention and Containment Course.\nThis requirement appears to differ from the HMR in two ways; it\nmay not include certain training required in the HMR, and it may\nalso requiring additional training beyond that specified in the\nsubject matter areas:\nThe HMR require hazmat employees to be trained in three\n(1) general awareness, (2)\nfunction-\nspecific, and (3) safety. 49 C.F.R. § 172.704 (a). \"ITlo the\nextent that training [under 29 C.F.R. S 1910.120] addresses the\ntraining specified\" in the HMR, it may be used to satisfy the HMR\ntraining requirement \"in order to avoid unnecessary duplication.\"\n49 C.F.R. § 172.704 (b). However, it is uncertain whether OSHA\ntraining would\nsatisfy function-specific training required in the\nfor drivers of vehicles transporting fuel, chemicals, or\nother hazardous materials being removed from a spill site.\nMoreover, the County may not impose more stringent training\nrequirements on motor vehicle drivers, beyond the hazmat training\nrequired in the HMR.\nimpose additional training requirements; those additional\nFor motor vehicle drivers, only a State may\nrequirements may not conflict with the HMR training requirements;\ndomiciled in\nadditional training requirements may apply only to drivers\nthe State.\n49 C.F.R. § 172.701. See the cases\n, under \"Training Requirements\" in the enclosed index.\n\n<<<PAGE 5>>>\n\n5\nIn the absence of more information, I cannot evaluate the\nrequirement for a spill contingency plan. However, certain\nemergency response requirements that go beyond the HMR will be\npreempted if they create an obstacle to accomplishing and\nbe carried on the vehicle.\ncarrying out the HMR or, as noted above, require documentation to\nResponse\" in the enclosed index.\nI hope these comments are helpful. In the brief time available,\nI have attempted to cover the main requirements in Article XXVII,\nbut my failure to discuss any specific provision should not be\nconsidered\nas a finding that a proposed requirement would not be\npreempted. If you have additional specific questions or wish to\ndiscuss any of these matters further, please to contact\nMr. Hilder or me, at the above address, by telephone at 202-366-\n4400, or by fax at 202-366-7041.\nSincerely,\nвамаха н. Волекетрек, ІII\nAssistant Chief Counsel for\nHazardous Materials Safety and\nResearch and Technology Law\nEnclosure","truncated":false,"body_characters":10509}