[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