[Federal Register Volume 59, Number 168 (Wednesday, August 31, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21500]


[[Page Unknown]]

[Federal Register: August 31, 1994]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 172

[Docket No. HM-145J; Amdt. No. 172-135]
RIN 2137-AC56

 

Hazardous Substances

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Final rule; decision on petition for reconsideration.

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SUMMARY: On June 20, 1994, RSPA amended the Hazardous Materials 
Regulations (HMR) by designating 15 hazardous substances as hazardous 
materials and amending the reportable quantity (RQ) for 34 other 
hazardous substances already designated as hazardous materials. 
Petitioners, metals mining and refining companies, requested that the 
rule modify the HMR to except from the hazardous material designation 
copper, molybdenum and zinc concentrates containing small amounts of 
lead sulfide, a hazardous substance. Alternatively, petitioners asked 
that the effective date of the rule be stayed to allow for the docket 
to be opened for public comment. The petition is denied. The effective 
date of that part of the rule that reduces the RQ for lead sulfide is 
extended for 90 days.

EFFECTIVE DATE: August 31, 1994. The effective date of that part of the 
rule, published on June 20, 1994 (59 FR 31822) revising Table 1 in 
Appendix A to Sec. 172.101 that reduces the RQ for lead sulfide is 
extended from August 29, 1994 to November 29, 1994.

FOR FURTHER INFORMATION CONTACT: John Gale, Office of Hazardous 
Materials Standards, RSPA, Department of Transportation, 400 Seventh 
Street SW, Washington, DC 20590-0001, Telephone (202) 366-4488 or 
Charles Holtman, Office of the Chief Counsel, RSPA, Department of 
Transportation, 400 Seventh Street SW, Washington, DC 20590-0001, 
Telephone (202) 366-4400.

SUPPLEMENTARY INFORMATION:

I. Background

    On June 20, 1994 (59 FR 31822), RSPA amended the Hazardous 
Materials Regulations (HMR), 49 CFR parts 171-180, by revising the 
``List of Hazardous Substances and Reportable Quantities,'' an Appendix 
to the Hazardous Materials Table at 49 CFR 172.101. The rule added 15 
hazardous substances to the Appendix and, for 34 other hazardous 
substances, reduced the ``Reportable Quantity'' (RQ), the amount of a 
hazardous substance in a single package that, under 49 CFR 171.8, 
subjects it to regulation under the HMR.
    The rule implements the mandate under section 306(a) of the 
Comprehensive Environmental Response, Compensation and Liability Act of 
1980 (CERCLA), 42 U.S.C. 9656(a). Section 9602(a) of CERCLA directs the 
U.S. Environmental Protection Agency (EPA), through rulemaking, to: (1) 
Designate as ``hazardous substances'' materials that ``when released 
into the environment may present substantial danger to the public 
health or welfare or the environment''; and (2) establish the RQ for 
each hazardous substance. The RQ is the amount of a hazardous substance 
that, if released, requires notification of the National Response 
Center. 42 U.S.C. 9603(a). Section 9656(a) directs that each hazardous 
substance designated by the EPA ``shall . . . at the time of such 
listing or designation . . . be listed and regulated as a hazardous 
material'' by the Secretary of Transportation under Federal hazardous 
material transportation law (Federal hazmat law), 49 U.S.C. 5101 et 
seq.
    The Research and Special Programs Administration (RSPA) carries out 
the rulemaking responsibilities of the Secretary of Transportation 
under 49 U.S.C. 5101 et seq. RSPA's June 20, 1994 rule revised the HMR 
to incorporate additional hazardous substance designations and RQ 
modifications made by the EPA in five rulemakings between November 1990 
and June 1993 (55 FR 46354, Nov. 2, 1990; 55 FR 50450, Dec. 6, 1990; 57 
FR 37194, Aug. 18, 1992; 57 FR 47376, Oct. 15, 1992; 58 FR 35314, June 
30, 1993).
    The final rule was issued without public notice or an opportunity 
for comment. The preamble stated:
    In accordance with the Administrative Procedure Act, 5 U.S.C. 
553(b)(3)(B), RSPA has determined that a notice of proposed rulemaking 
and an opportunity for public comment and review are impracticable and 
unnecessary. [CERCLA] mandates that the Department of Transportation 
list and regulate, as hazardous materials under 49 CFR Parts 171-180, 
hazardous substances designated by the EPA under CERCLA. The EPA is the 
sole agency authorized to designate hazardous substances and their 
reportable quantities [RQ's]. Therefore, public comment and review are 
unnecessary because: (1) The public was afforded time to comment when 
the EPA published its notice of proposed rulemaking concerning that 
agency's change in the subject RQ's; and (2) RSPA does not have the 
authority to designate hazardous substances or determine their 
reportable quantities.
    A hazardous substance listed in the Appendix to 49 CFR 172.101 is 
regulated under the HMR as a Class 9 hazardous material, when an amount 
equal to or exceeding the RQ of the substance is transported in a 
single package. 49 CFR 171.8. If the hazardous substance is in a 
mixture or in solution, it is regulated only when the concentration of 
the hazardous substance equals or exceeds a concentration that depends 
on the RQ of the substance, as follows:

------------------------------------------------------------------------
                                                           Concentration
                 RQ, pounds (kilograms)                      (by weight 
                                                              percent)  
------------------------------------------------------------------------
5000(2270)...............................................       10      
1000(454)................................................        2      
100(45.4)................................................        0.2    
10(4.54).................................................        0.02   
1(0.454).................................................        0.002  
------------------------------------------------------------------------

    Id. A hazardous substance regulated under the HMR as a Class 9 
material is subject to requirements governing packaging, shipping 
papers, package marking and labelling, vehicle operation, employee 
training and registration. See generally 49 CFR subpart 107.600; 
subparts 172.100-172.700; 173.203-173.204; 173.240-173.241; part 177.
    The rule is effective August 29, 1994.

II. The Petition for Reconsideration

    Petitioners ASARCO, Inc., Cominco Ltd., Cyprus Climax Metals 
Company, Magma Copper Company, Montana Resources, and Phelps Dodge 
Mining Company, collectively, engage in the exploration, mining, 
milling, smelting and refining of metals including copper, molybdenum 
and zinc. In the course of their activity, petitioners offer for 
transportation and transport significant quantities of copper, 
molybdenum and zinc concentrates. Petitioners' concentrates contain 
lead sulfide in a concentration between 0.001 and 2.0 percent.
    Petitioners request reconsideration of the June 20, 1994 rule 
because it incorporates the EPA's reduction of the lead sulfide RQ from 
5,000 to 10 pounds (58 FR 35314, June 30, 1993), and thereby, through 
operation of the Sec. 171.8 mixture rule, subjects to regulation under 
the HMR certain of petitioners' copper, molybdenum and zinc 
concentrates that until now have not been regulated.
    Petitioners represent that the lead sulfide in the copper, 
molybdenum and zinc concentrates is of low bioavailability\1\ and that 
these concentrates currently are being shipped safely, and contend on 
that basis that there is no need to regulate the concentrates as 
hazardous materials. Petitioners cite several types of costs that they 
will incur from designation of the concentrates as hazardous materials 
and suggest that, contrary to RSPA's finding in the rule's preamble, 59 
FR 31823, the economic impact of the rule is not minimal.
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    \1\According to EPA, ``bioavailability'' is ``the rate and 
extent to which a substance is absorbed or otherwise assimilated 
into body tissue following exposure by various routes, such as 
ingestion.'' 58 FR 35318.
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    Petitioners assert that few U.S. ports accept bulk shipments of 
concentrates, and that of those that do, many would not if the 
concentrates were designated hazardous materials. Petitioners say they 
have been informed by officials of the Port of Corpus Christi, Texas, 
that the port no longer would accept bulk shipments of copper and zinc 
concentrates, if designated as hazardous materials. Petitioners state 
that if the rule is not modified to except their concentrates from the 
hazardous material designation, they might need to ship the 
concentrates through Canadian or Mexican ports, adding millions of 
dollars annually to their shipping costs. Petitioners suggest that this 
rerouting, by increasing the distances over which the concentrates are 
shipped, would increase the risk of accident and release of these 
materials. Petitioners also suggest that a decision by U.S. ports not 
to handle these materials could result in job losses among port 
workers.
    Second, petitioners predict that concentrates designated as 
hazardous materials would be subject to shipping surcharges and 
shipping rate increases.
    Third, petitioners cite the general costs of compliance with HMR 
packaging, shipping paper, marking, labelling, placarding and employee 
training requirements. (Note: As Class 9 materials, petitioners' 
concentrates would not be required to be placarded in domestic 
transportation. 49 CFR 172.504(f)(9).)
    Finally, petitioners suggest that the rule is inconsistent with 
international regulations that, according to petitioners, do not 
subject the concentrates in question to similar regulation. This, say 
petitioners, runs counter to RSPA's and DOT's policy to seek a uniform 
global regulatory framework for hazardous material transportation.
    Petitioners assert that the 42 U.S.C. 9656(a) mandate to list and 
regulate hazardous substances as hazardous materials does not supersede 
RSPA's delegated authority under 49 U.S.C. 5103 to designate as 
hazardous materials those materials that ``in a particular amount and 
form may pose an unreasonable risk to health and safety or property.'' 
Petitioners concede that Sec. 9656(a) requires RSPA both to designate 
lead sulfide as a hazardous material and to recognize the 10-pound RQ 
for lead sulfide established by the EPA, but assert that this directive 
does not constrain RSPA's discretion to determine the threshold 
concentration at which a particular mixture containing lead sulfide is 
to be regulated as a hazardous material. Petitioners suggest that the 
mixture table at 49 CFR 171.8 is a comparable exercise of discretion, 
and that RSPA simply can modify the table in a way that excludes their 
concentrates from a hazardous material designation.
    Procedurally, petitioners take issue with RSPA's failure to provide 
for public notice and comment before issuing the rule. They argue that 
notice and comment was not ``impracticable'' since the rule was not 
issued until a year after the EPA rule revising the RQ for lead 
sulfide. They contend that comment was not ``unnecessary'' because: (1) 
The opportunity to comment during the EPA rulemaking did not encompass 
the transportation-related ramifications of the EPA action; and (2) 
RSPA does have the statutory authority to decide what quantity and form 
of materials in transportation may pose an unacceptable risk to health, 
safety or property.
    Petitioners request that RSPA modify the mixture table at 49 CFR 
171.8 to provide that copper, molybdenum and zinc concentrates with 
less than 10 percent lead sulfide by weight are not hazardous 
materials. In the alternative, petitioners ask that the August 29, 1994 
effective date of the rule be stayed, and that the docket be reopened 
for public notice and comment.

III. Decision

    The petition for reconsideration is denied. RSPA's statutory 
authority under 42 U.S.C. 9656(a) to ``list[] and regulate[] as a 
hazardous material'' each hazardous substance designated by the EPA 
under 42 U.S.C. 9602(a) does not give RSPA the discretion to grant the 
relief petitioners seek.

A. History of RSPA Hazardous Substance Regulation

    RSPA first subjected hazardous substances to regulation as 
hazardous materials in a May 22, 1980 final rule (45 FR 34560). This 
rule, issued before CERCLA was enacted, was to assist the 
transportation industry in complying with section 311(b)(5) of the 
Federal Water Pollution Control Act (FWPCA), 33 U.S.C. 1321(b). Section 
1321(b)(2), a forerunner to 42 U.S.C. 9602(a) that remains as an 
independent EPA authority, directs the EPA Administrator to: (1) 
Designate as a hazardous substance any material that, when discharged 
to the navigable waters or contiguous zone, ``present[s] an imminent 
and substantial danger to the public health or welfare''; and (2) 
establish as the RQ for each hazardous substance the quantity of that 
substance that, if discharged, ``may be harmful'' to the public health 
or welfare or the environment. Section 1321(b)(5) requires the operator 
of a facility from which a hazardous substance in excess of its RQ is 
discharged to report the discharge to the National Response Center. The 
statute imposes cleanup liability on the operator, and criminal and 
civil penalties for failure to report the discharge. Motor vehicles and 
rolling stock are ``facilities'' under the statute. 33 U.S.C. 
1321(a)(10).
    The 1980 RSPA rule sought to address transportation industry 
concerns that a motor vehicle or train operator might be subject to 
criminal penalties for failing to report a discharge without being 
clearly on notice that the cargo included hazardous substances. 44 FR 
10676-77 (Feb. 22, 1979) (notice of proposed rulemaking). The rule 
amended the HMR to designate hazardous substances as hazardous 
materials, to require that a hazardous substance be identified on the 
shipping paper accompanying the package, and to impose a package 
marking requirement. These measures were to ensure the operator's 
awareness that a hazardous substance was on board. The rule also 
specified general standards of integrity for the container in which the 
hazardous substance is transported.
    Because the FWPCA reporting requirement applies only to the 
discharge of a hazardous substance in an amount that exceeds its RQ, 
the rule limited the application of the HMR to hazardous substance 
transportation in two ways that remain in the rule today. First, a 
hazardous substance is a hazardous material, and therefore regulated 
under the HMR, only when the hazardous substance is being transported 
in an amount (in a single package) in excess of its RQ. 49 CFR 171.8. 
Second, whether transportation of a hazardous substance in a mixture or 
in solution is subject to the HMR as a hazardous material is determined 
by the concentration of the hazardous substance in the mixture or 
solution. Id. The minimum concentration subjecting the mixture or 
solution to regulation as a hazardous material is proportional to the 
RQ of the hazardous substance; the higher the RQ, the greater the 
concentration of hazardous substance permitted before the material is 
regulated. These two provisions are those to which petitioners point in 
arguing that RSPA has the discretion to exclude copper, molybdenum and 
zinc concentrates from the HMR.
    CERCLA was enacted on December 11, 1980. Pub. L. 96-510, 94 Stat. 
2767. The statute incorporates the FWPCA requirement to report a 
release of a hazardous substance in excess of its RQ and the sanctions 
for failing to do so. 42 U.S.C. 9603(a), 9603(b), 9609. It establishes, 
for discharge reporting and other purposes, a broader definition of 
``hazardous substance'' than that under 33 U.S.C. 1321(b)(2). The 
definition includes hazardous substances designated by the EPA under 33 
U.S.C. 1321(b)(2), but also specifies as hazardous substances materials 
of environmental concern listed under the FWPCA at 33 U.S.C. 1317(a); 
the Solid Waste Disposal Act at 42 U.S.C. 6921; the Clean Air Act at 42 
U.S.C. 7412; and the Toxic Substances Control Act at 15 U.S.C. 2606. 42 
U.S.C. 9601(14). Section 9602(a) of CERCLA, like 33 U.S.C. 1321(b)(2), 
authorizes the EPA Administrator to: (1) Designate as a hazardous 
substance any other material that, in the Administrator's judgment, 
``may present substantial danger to the public health or welfare or the 
environment'' if released; and (2) establish an RQ for that material. 
Section 9602(b) assigns to those hazardous substances incorporated into 
CERCLA from other Federal statutes a ``default'' RQ of one pound until 
the EPA, through rulemaking, specifies a different RQ.
    Section 9656(a) of CERCLA, as enacted, directed the Secretary of 
Transportation as follows:
    Each hazardous substance which is listed or designated as provided 
in section 101(14) of this Act (42 U.S.C. 9601(14)) shall, within 
ninety days after the date of enactment of this Act or at the time of 
such listing or designation, whichever is later, be listed as a 
hazardous material under the Hazardous Materials Transportation Act 
(now codified at 49 U.S.C. 5101 et seq.).
    With the enactment of CERCLA, the section 9601(14) definition 
immediately added to the list of hazardous substances a number of 
substances with a default RQ of one pound. On March 19, 1981 (46 FR 
17738), RSPA issued a final rule to implement the section 9656(a) 
directive. In the agency's judgment, regulating the transportation of a 
single pound of many of the listed hazardous substances would not be 
practical or cost-effective. To comply with the language of section 
9656(a), RSPA listed these hazardous substances as hazardous materials, 
but did not regulate them. In denying a subsequent petition for 
reconsideration, RSPA explained its authority for listing but not 
regulating:
    [I]t was the intent of Congress in enacting [Sec. 9656] that, once 
DOT has listed the materials subject to CERCLA as hazardous materials, 
DOT retain [sic] the discretion provided by the Hazardous Materials 
Transportation Act to determine whether, and to what extent, those 
materials should be regulated.
    46 FR 58086 (Nov. 30, 1981); see also 48 FR 35965, 35969 (Aug. 8, 
1983) (advance notice of proposed rulemaking) (affirming RSPA's 
discretion as to whether and how to regulate hazardous substances under 
Federal hazmat law).
    In response to RSPA's decision not to regulate certain hazardous 
substances at a one-pound RQ, Congress amended section 9656(a) to 
direct that hazardous substances, when designated by the EPA, be 
``listed and regulated'' as hazardous materials. Pub. L. 99-499, 
section 202 (Oct. 17, 1986) (emphasis added). This is the present 
language of the statute.
    In accordance with the amendment, RSPA issued a final rule on 
November 21, 1986, subjecting all hazardous substances listed under 42 
U.S.C. 9601(14) to the shipping paper, package marking and packaging 
requirements applicable to hazardous substances under the 1980 rule. 
The agency, citing its lack of discretion in complying with the 
statutory mandate, found that public notice and comment were 
unnecessary and issued the final rule directly.
    As the EPA has designated additional hazardous substances or 
changed the RQ for those already designated, RSPA, without public 
notice or an opportunity for public comment, has issued final rules 
incorporating those changes into the HMR. The present rule is the 
fourth of these (see preceding rules at 54 FR 34666, Aug. 21, 1989; 54 
FR 39500, Sept. 26, 1989; 55 FR 46794, Nov. 7, 1990). With the 
exception of training and registration requirements established by 
statute for hazardous materials as a whole, the HMR requirements that 
apply to the bulk transportation of hazardous substances designated as 
hazardous materials have not changed substantially since 1980.

B. RSPA Discretion To Regulate Hazardous Substances

    RSPA's discretion in implementing 42 U.S.C. 9656(a) is limited in 
two important respects.
    First, the directive to ``list and regulate'' each hazardous 
substance as a hazardous material requires RSPA, at the least, to 
provide a regulatory framework to ensure that a motor vehicle or train 
operator has a means to know when the cargo includes a reportable 
quantity of a hazardous substance. As discussed above, RSPA's May 1980 
rule, subjecting hazardous substance transportation to hazardous 
material shipping paper and package marking requirements, was issued to 
this end in order to implement FWPCA discharge reporting requirements. 
Seven months later, Congress enacted CERCLA, essentially incorporating 
the FWPCA hazardous substance discharge reporting requirement. 
Furthermore, the CERCLA legislative history reveals a congressional 
intent to adopt and enhance the FWPCA framework for preventing and 
mitigating oil and hazardous substance spills. See generally H.Rep. 96-
1016(II), 1980 USCCAN 6151, 6160-6223 (incorporating H.Rep. 96-172). 
Therefore, RSPA reads section 9656(a) to have codified the basic 
purpose of the RSPA rule, that of providing carriers the knowledge of 
their cargo needed to comply with CERCLA reporting requirements. 
Accordingly, RSPA has no discretion to modify the HMR framework in a 
way that undermines the operator notification function of the shipping 
paper and marking requirements. Congress' 1986 amendment to require 
both listing and regulation of EPA-designated hazardous substances is 
further evidence of RSPA's limited discretion.
    Second, the regulatory framework under Federal hazmat law 
historically has been oriented toward those materials that, in 
transportation, present immediate hazards to public health, safety and 
property by virtue of qualities such as explosivity, flammability, 
reactivity, acute toxicity, radioactivity and corrosivity. RSPA, in 
coordination with the Department of Transportation (DOT) modal 
administrations (Federal Highway Administration, Federal Railroad 
Administration, United States Coast Guard, and Federal Aviation 
Administration), possesses the expertise and the resources to assess 
the physical and chemical properties of materials in transportation; to 
weigh the costs and benefits of proposed regulations; and to make 
considered regulatory judgments.
    RSPA exercises its discretion more narrowly in regulating materials 
that may pose longer-term harm to humans or other animals, or harm to 
the environment. As RSPA noted in 1980, in its first notice of proposed 
rulemaking to regulate hazardous substances as hazardous materials:
    DOT should not attempt to develop the criteria for materials that 
are subject to the FWPCA unless they fall within the realm of the 
existing defining criteria for materials presently designated as 
hazardous materials. (RSPA) believes the EPA has both the expertise and 
the technical resources necessary to deal with the determination and 
designation of those materials which should be considered for inclusion 
in the reporting requirement mandated by the FWPCA.

44 FR 10677.
    The assignment of authority under the FWPCA and CERCLA between DOT 
and the EPA reflects the agencies' relative areas of expertise and 
resources. Both 33 U.S.C. 1321(b)(2) and 42 U.S.C. 9602(a) direct the 
EPA Administrator to designate as hazardous substances those materials 
that may substantially endanger public health or the environment, and 
to establish for each the RQ that determines which hazardous substance 
releases must be reported. Both the decision to designate a material as 
a hazardous substance and the choice of an RQ are matters for the 
exercise of the EPA Administrator's broad discretion. The assignment to 
RSPA under 42 U.S.C. 9656(a), conversely, is strictly confined: if the 
EPA has designated a material as a hazardous substance, RSPA must list 
it and regulate its transportation.
    The rulemaking challenged by petitioners was preceded by a notice 
and comment rulemaking in which the EPA affirmed its designation of 
lead sulfide as a hazardous substance, and determined that on the basis 
of chronic toxicity, the lead sulfide in petitioners' concentrates 
warranted assignment of an RQ of 10 pounds. 58 FR 35316. If RSPA were 
to consider petitioners' argument that the low bioavailability of the 
lead sulfide in their concentrates justifies excepting the concentrates 
from the hazardous material designation, the result would be untenable. 
In every rulemaking under section 9656(a), RSPA would be required to 
consider, on a cost-benefit basis, the appropriate level of Federal 
hazmat regulation for each hazardous substance designated by the EPA 
and the appropriateness of excluding certain forms of hazardous 
substances from regulation entirely. Costs and benefits could not be 
estimated without RSPA independently assessing the health and 
environmental risks that a hazardous substance posed. The statute 
cannot reasonably intend that each hazardous substance and RQ 
designation, determined by the EPA through consideration of public 
comment and the exercise of its own expert judgment, be subject to full 
reconsideration by RSPA before it is incorporated into the HMR. This 
reading would be contrary to the statutory recognition of agency 
expertise and all notions of executive branch efficiency and 
consistency.
    RSPA does have discretion as to precisely how it regulates 
hazardous substances in transportation. Regulation may be extensive or 
minimal. Vehicle operating requirements, segregation requirements and 
routing restrictions might be imposed, or shipping paper and package 
notations might suffice. RSPA's task is to formulate a principle that 
reconciles (1) the EPA's authority to adjudge public health and 
environmental risk by designating hazardous substances and their RQ's 
with (2) RSPA's inescapable discretion to determine the specific 
requirements that apply to the transportation of each hazardous 
substance.
    The guiding principle is this: RSPA, in its discretion, may 
prescribe reasonable requirements to govern the safe transportation of 
hazardous substances, so long as those requirements do not, in effect, 
revisit the EPA's assessment of health and environmental risks. In 
practice, this means that RSPA may exercise discretion under 42 U.S.C. 
9656(a) in three respects: (1) It may prescribe regulations for the 
transportation of hazardous substances as a class; (2) it may regulate 
differently hazardous substances with different RQ's; and (3) it may 
regulate hazardous substances by class on the basis of shared 
characteristics other than the degree of health or environmental risk 
posed.

C. Petitioners' Substantive Claims

    Petitioners contend that although RSPA must ``list and regulate'' 
all hazardous substances as hazardous materials, it has the discretion 
to except copper, molybdenum and zinc concentrates from the hazardous 
material designation. In support of this claim, petitioners suggest 
that RSPA already has exercised this sort of discretion under 49 CFR 
171.8, by: (1) Regulating hazardous substances only when transported in 
excess of their RQ's; and (2) not regulating mixtures and solutions 
containing a hazardous substance, when the hazardous substance is below 
a specified concentration. Petitioners ask that RSPA merely amend the 
rule governing mixtures and solutions to increase the concentration of 
lead sulfide that must be present in their concentrates before they are 
considered hazardous materials.
    Petitioners argue that the exception from regulation for hazardous 
substances in amounts below their RQ's and for those in mixtures or 
solutions below the specified concentration proves that RSPA has the 
discretion to disregard the 42 U.S.C. 9656(a) command to ``list and 
regulate'' each hazardous substance. These exceptions, however, do not 
contravene the statute, but implement it. As discussed above, the 
primary purpose of section 9656(a) is to provide for identification of 
cargo subject to CERCLA reporting requirements if released. There is no 
need to regulate a hazardous substance being transported in an amount 
below its RQ, because no reportable release could occur during 
transportation. 42 U.S.C. 9603(b); cf. 33 U.S.C. 1321(b)(5). The 
provision setting a minimum concentration for designating as a 
hazardous material a hazardous substance in a mixture or in solution is 
to simplify the operator's task of determining whether an RQ of a 
hazardous substance is present. 45 FR 34569; 44 FR 10676-77.
    Further, the statute requires reporting of a hazardous substance 
release only when the release equals or exceeds the RQ of the 
substance. 42 U.S.C. 9603(a). This is an implied finding that the 
release of a limited quantity of a hazardous substance is of lesser 
regulatory concern. Cf. 33 U.S.C. 1321(b)(4) (defining the RQ as the 
quantity of a hazardous substance ``which may be harmful'' to the 
public health or welfare or the environment).
    Thus, the command to regulate the transportation of ``each 
hazardous substance'' need not be read to require the regulation of 
hazardous substances transported in any amount or concentration. In 
view of the costs attending regulation, Sec. 9656(a) is best read to 
require the regulation of hazardous substances in transportation only 
in amounts that, if spilled, require notification of the National 
Response Center. For shipments in a single package of 50,000 pounds or 
less, the Sec. 171.8 rule for mixtures and solutions is a simple means 
to determine that the lading does not amount to an RQ of a hazardous 
substance. A small number of shipments of more than 50,000 pounds of a 
hazardous substance in a mixture or in solution may be excluded from 
regulation despite containing more than an RQ of the hazardous 
substance. A regulation that implements a general statutory command, 
however, cannot avoid some degree of both over- and underregulation. In 
light of the operator liability concerns underpinning the Sec. 9656(a) 
mandate, underregulation was remedied by the EPA's concurrence in the 
rule, and its issuance of a notice that carriers complying with 
reporting requirements in accordance with the RSPA rule would be deemed 
to have met FWPCA reporting requirements. 45 FR 61617 (Sept. 17, 1980); 
see also 45 FR 74642 (Nov. 10, 1980). The two limitations of 49 CFR 
171.8 establish, directly or by approximation, a regulatory threshold 
at the RQ, and are a reasoned interpretation of the 42 U.S.C. 9656(a) 
mandate.
    The EPA treats mixtures and solutions of a hazardous substance 
differently under CERCLA than RSPA treats them under 49 CFR 171.8. See 
40 CFR 302.6. RSPA's and the EPA's approaches differ not because RSPA 
is second-guessing the EPA as to the health and environmental risks 
posed by hazardous substances in mixture or solution, but because the 
agencies simplified in different ways the operator's determination of 
whether an RQ of a hazardous substance is present. Congress amended 
Sec. 9656(a) in 1986 to correct RSPA's failure to regulate hazardous 
substances with statutory one-pound RQ's, but did not take issue with 
these two aspects of 49 CFR 171.8. This is further evidence that the 
regulation is consistent with statutory intent.
    With respect to the allocation of authority between RSPA and the 
EPA, these two elements of Sec. 171.8 are consistent with the principle 
set forth in section III.B, above. The RQ is the regulatory threshold 
for all hazardous substances; the treatment of hazardous substance 
mixtures and solutions makes distinctions only between hazardous 
substances with different RQ's. Each element fully respects the EPA's 
hazardous substance and RQ designations and its assessment of the 
comparative health and environmental concerns of each hazardous 
substance.
    In contrast, the action that petitioners ask RSPA to take is not 
within RSPA's discretion in either respect. Petitioners concede that 
RSPA is obligated to list lead sulfide as a hazardous material with an 
RQ of 10 pounds, but ask that certain lead sulfide mixtures be 
designated as hazardous materials only at a concentration of 10 percent 
or greater, while other lead sulfide mixtures, as well as other 
mixtures containing a hazardous substance with an RQ of 10 pounds, are 
hazardous materials at a hazardous substance concentration of 0.02 
percent. Contrary to the section 9656(a) mandate, this would permit the 
transportation of up to 500 times the RQ of lead sulfide in a single 
packaging (more, if concentrates are transported in bulk in a quantity 
above 50,000 pounds) without requiring identification of the lading as 
a hazardous substance. Carriers nevertheless would remain subject to 
the CERCLA reporting requirement, and to civil and criminal sanctions 
for failing to comply with it. As well, it would convert the Sec. 171.8 
mixture rule from a means to simplify the operator's computation of 
whether an RQ is present to a means of disregarding the EPA's 
conclusion, expressed in the designation of a 10-pound RQ, as to the 
relative risks that lead sulfide poses to the public health and the 
environment.
    The foundation of petitioners' claim is that the lead sulfide in 
their copper, molybdenum and zinc concentrates is not bioavailable, and 
that these concentrates are being subjected to a regulatory regime not 
warranted by the public health and environmental risk that they pose. 
RSPA's discretion does not extend to excepting lead sulfide from the 
hazardous material designation on the basis of its own assessment of 
health and environmental risks. Petitioners' claim properly was before 
the EPA during its rulemaking to consider adjusting the RQ for lead 
sulfide. In that rulemaking, the issue of lead sulfide bioavailability 
was directly raised by commenters and considered by the EPA. See 
letters in EPA Docket 102RQ-31L from the American Mining Congress (July 
7, 1992; document 3-22); Hecla Mining Company (June 17, 1992; document 
3-6); Lead Industries Association (July 7, 1992; doc. 3-21); Charlotte 
Biblow (July 7, 1992; doc. 3-13); EPA responses to comments at document 
4-1 and 58 FR 35319-20. The EPA determined not to except petitioners' 
form of lead sulfide from designation as a hazardous substance, and 
assigned lead sulfide in all forms, including petitioners', an RQ of 10 
pounds. 58 FR 35314. RSPA may not revisit the EPA's conclusion.
    Petitioners argue that the 42 U.S.C. 9656(a) mandate does not 
supersede RSPA's delegated authority to designate as hazardous 
materials only those materials that ``in a particular amount and form 
may pose an unreasonable risk to health and safety or property.'' 49 
U.S.C. 5103. Petitioners are correct that RSPA's designation of a 
hazardous material under Sec. 5103 must rest on a finding that the 
material may pose the type and degree of risk stated. The authority to 
make that finding carries with it a range of discretion, so that 
ordinarily a rulemaking to designate a hazardous material under 
Sec. 5103 requires public notice and an opportunity for comment. 
Section 9656(a) of CERCLA, however, does not compel RSPA to designate 
hazardous substances as hazardous materials under 49 U.S.C. 5103. 
Rather, it imposes an independent, direct rulemaking mandate. Under a 
section 9656(a) rulemaking, RSPA need not, and indeed may not, inquire 
as to whether a particular hazardous substance, in a particular amount 
and form, ``may pose an unreasonable risk to health and safety or 
property.'' Section 9656(a) already has decided the substance's status 
as a hazardous material.
    As stated above, RSPA does have the authority under 42 U.S.C. 
9656(a) to modify the set of HMR requirements applicable to hazardous 
substances as a class. In a rulemaking to consider modifying the HMR, 
RSPA would examine both the statutory purposes of the hazardous 
material designation under section 9656(a) (e.g., providing a means for 
motor vehicle and train operators to know that potentially they are 
subject to CERCLA reporting requirements) and the costs and benefits of 
regulatory alternatives. These options are not within the scope of this 
rulemaking and, to the extent petitioners seek to avoid the hazardous 
material designation entirely, would not provide petitioners the relief 
they seek.
    Petitioners do not document their claims as to the safe 
transportation history of copper, molybdenum and zinc concentrates; the 
limited public health and environmental risk of those concentrates; or 
the consequences of the June 20, 1994 rule for, and significance of the 
costs to, the mining industry. Further, it is not at all clear that the 
bulk of petitioners' alleged costs, attributable to the voluntary 
business decisions of private port operators, are cognizable in an 
agency's consideration of the costs and benefits of its rules. 
Regardless, because RSPA does not have the discretion to consider the 
factual basis for petitioners' request, the lack of documentation and 
the question of the status of petitioners' costs are not material.

D. Procedural Claims

    Petitioners object to RSPA's failure to provide public notice and 
an opportunity for comment before issuing the final rule. Specifically, 
they challenge RSPA's finding, under 5 U.S.C. 553(b)(3)(B), that public 
notice and comment were not required because notice and comment would 
have been impractical and unnecessary.
    Petitioners assert that because the rule was issued nearly a year 
after the EPA rulemaking establishing the reduced lead sulfide RQ, 
allowing for notice and comment would not have been impractical. 
Section 9656(a) mandates that the RSPA final rule designating a 
hazardous substance as a hazardous material be issued ``at the time'' 
that the EPA publishes the hazardous substance designation. It can be 
argued that this language establishes the impracticality of public 
notice and comment as a matter of law. Nevertheless, petitioners' 
argument that an opportunity for public comment could have been 
provided in this case certainly is correct. Regardless, public notice 
and an opportunity for comment were not required because they were 
unnecessary.
    As elaborated above, RSPA, contrary to petitioners' argument, does 
not have the authority in this rulemaking to decide, on the basis of 
health and environmental effects, what quantities and forms of lead 
sulfide should be designated as hazardous materials. Public comment was 
unnecessary because it could not have changed the final rule.

IV. Extension of Effective Date

    Petitioners indicate that it may be necessary to adjust shipping 
arrangements for copper, molybdenum and zinc concentrates that as a 
result of the rule will be designated as hazardous materials. The 
effective date of that part of the rule that reduces the lead sulfide 
RQ from 5,000 to 10 pounds is changed from August 29, 1994 to November 
29, 1994, to allow petitioners sufficient time to make the necessary 
arrangements and otherwise to prepare to comply with the rule. No other 
regulated party has indicated that the August 29, 1994 effective date 
poses a problem. Therefore, except with respect to the RQ reduction for 
lead sulfide, the effective date of the rule remains August 29, 1994.

    Dated: August 25, 1994.
D. K. Sharma,
Administrator.
[FR Doc. 94-21500 Filed 8-30-94; 8:45 am]
BILLING CODE 4910-60-P