[Federal Register Volume 62, Number 197 (Friday, October 10, 1997)]
[Notices]
[Pages 53049-53052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26918]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
[Docket No. RSPA-97-2968 (PDA-17(R))]
Application by William E. Comley, Inc. and TWC Transportation
Corporation for a Preemption Determination as to Public Utilities
Commission of Ohio Requirements for Cargo Tanks
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Public notice and invitation to comment.
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SUMMARY: Interested parties are invited to submit comments on an
application by William E. Comley, Inc. and TWC Transportation
Corporation for an administrative determination whether Federal
hazardous materials transportation law preempts requirements enforced
by the Public Utilities Commission of Ohio concerning the
transportation of hypochlorite solutions in non-DOT specification cargo
tank motor vehicles.
DATES: Comments received on or before November 24, 1997, and rebuttal
comments received on or before December 9, 1997, will be considered
before an administrative ruling is issued by RSPA's Associate
Administrator for Hazardous Materials Safety. Rebuttal comments may
discuss only those issues raised by comments received during the
initial comment period and may not discuss new issues.
ADDRESSES: The application and all comments received may be reviewed in
the Dockets Office, U.S. Department of Transportation, Room PL-401, 400
Seventh Street, SW, Washington, DC 20590-0001. Comments may be
submitted to the Dockets Office at the above address. Three copies of
each written comment should be submitted. Comments may also be
submitted by E-mail to ``[email protected].'' Each comment
should refer to the Docket Number set forth above.
A copy of each comment must also be sent to (1) Mr. William E.
Comley, Sr., Chairman, WECCO/TWC, 28 Kenton Lands Road, P.O. Box 18580,
Erlanger, KY 41018, and (2) Mr. William L. Wright, Assistant Attorney
General, Public Utilities Section, 180 East Broad Street, Columbus, OH
43215-3793. A certification that a copy has been sent to these persons
must also be included with the comment. (The following format is
suggested: ``I certify that copies of this comment have been sent to
Messrs. Comley and Wright at the addresses specified in the Federal
Register.'')
FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief
Counsel, Research and Special Programs Administration, U.S. Department
of Transportation, Washington, DC 20590-0001 (Tel. No. 202-366-4400).
SUPPLEMENTARY INFORMATION:
I. Application for a Preemption Determination
William E. Comley, Inc. (WECCO) and TWC Transportation Corporation
(TWC) have applied for a determination that Federal hazardous material
transportation law, 49 U.S.C. 5101 et seq., preempts certain
requirements of the State of Ohio, enforced by the Public Utilities
Commission of Ohio (PUCO),
[[Page 53050]]
with respect to cargo tank motor vehicles used to transport
hypochlorite solutions. This application arises out of enforcement
proceedings brought by PUCO against WECCO and TWC for transporting
hypochlorite solutions in non-DOT specification cargo tank motor
vehicles. These companies have provided documents, including opinions
and orders of PUCO, that indicate the following:
1. WECCO's truck No. 88 was inspected by PUCO on June 3 and
September 26, 1991, and WECCO was cited both times for several
violations including transporting hypochlorite solution in an
unauthorized package.
2. At the time of PUCO's 1991 inspections, truck No. 88 did not
have any specification plate. Sometime thereafter, WECCO attached
specification plates to its three cargo tanks, including truck No. 88.
3. In its December 17, 1992 Opinion and Order relating to the 1991
citations, PUCO found that, ``in order to be an authorized package for
the transportation of sodium hypochlorite under HMR 49 CFR
173.277(a)(9), respondent's tank must be classified as an MC 310, MC
311, MC 312 or DOT 412 cargo tank.'' PUCO also found that truck No. 88
``has several design flaws which prevent it from qualifying under the
HMR as a specification MC 312 cargo tank.'' PUCO assessed a fine of
$11,470 against WECCO, which included $10,750 for violations of 49 CFR
173.277, transporting hazardous material in an unauthorized package and
willful misrepresentation of cargo tank certification. Of the total
fine, $5,000 was suspended for six months.
4. Truck No. 88, which had been transferred by WECCO to TWC, was
inspected by PUCO on June 22, 1993, and TWC was cited for eight
violations including leaking closures, transporting hypochlorite
solution in an unauthorized package, and misrepresenting that the
package met the MC 312 specification. On PUCO's hazardous materials
report form, the contents of the cargo tank is indicated as
``Hypochlorite Solution, PG III.''
5. TWC's truck No. 66 was inspected by PUCO on July 3, 1993, and
TWC was cited for seven violations including leaking closures,
transporting hypochlorite solution in an unauthorized package, and
misrepresenting that the package met the MC 312 specification. On
WECCO's shipping paper attached to PUCO's hazardous materials report
form, the hypochlorite solution is classed within ``PG III.''
6. In its October 25, 1995 Opinion and Order relating to the 1993
citations, PUCO found that ``numerous defects for both cargo tanks
(Nos. 88 and 66) * * * preclude either from meeting the specifications
of an MC 312 cargo tank.'' PUCO also stated that whether or not TWC
``need[ed] an MC 312 certified cargo tank to haul sodium hypochlorite
solution of the concentration involved in these cases * * * is not an
issue before us and respondent has not been charged with any such
violation.'' PUCO assessed a total civil forfeiture of $14,290.50
against TWC for violations which included transporting hypochlorite
solution in unauthorized packages and in tanks misrepresented as
meeting MC 312 specifications, in violation of 49 CFR 173.33(a) and 49
CFR 171.2(c), respectively.
Based on telephone conversations with WECCO and PUCO, RSPA understands
that no part of the fines or civil forfeitures assessed against WECCO
and TWC has been paid, and PUCO is currently seeking to collect these
penalties.
The State of Ohio has adopted (as State law) the requirements in
the Hazardous Materials Regulations (HMR, 49 CFR parts 171-180)
applicable to highway transportation of hazardous materials, including
hypochlorite solutions. Under the HMR, since January 1, 1991,
hypochlorite solutions containing more than 5% but less than 16%
available chlorine may be transported in ``non-DOT specification cargo
tank motor vehicles suitable for transportation of liquids'' and which
also meet the general requirements for bulk packagings set forth in 49
CFR 173.24 and 173.24b. 49 CFR 173.241(b); see also 172.101 (Hazardous
Materials Table). (At present, hypochlorite solutions up to 5%
available chlorine are not subject to the HMR. During a transition
period that continued until October 1, 1996, the HMR also authorized
the transportation of hypochlorite solutions containing up to 7%
available chlorine by weight transported in nonspecification cargo
tanks that were ``free from leaks and [with] all discharge openings * *
* securely closed during transportation.'' 49 CFR 173.510 (1990 ed.))
According to WECCO and TWC, in the course of these enforcement
proceedings, PUCO has required the use of a DOT specification cargo
tank motor vehicle, bearing a specification plate, for transportation
of hypochlorite solutions containing more than 5% but less than 16%
available chlorine. These companies also assert that PUCO has required
cargo tank motor vehicles built under the MC 312 specification, that
are unloaded at a pressure less than 15 psig, to be designed and
constructed in accordance with the ASME code and also required the
certification of MC 312 cargo tank motor vehicles in some manner other
than as specified in the HMR.
In comments addressed to this application, PUCO has stated that its
policy is to enforce the requirements in the HMR ``aggressively yet
fairly.'' It stated that the focus of its enforcement proceedings
against WECCO and TWC was the misrepresentation of these two cargo tank
motor vehicles as meeting the MC 312 specification, when PUCO
``specifically found that the cargo tanks in question did not meet MC
312 specifications.'' PUCO also stated that it allows the use of non-
specification cargo tank motor vehicles for the transportation of
hypochlorite solutions with less than 16% available chlorine, but that
WECCO and TWC have never provided any evidence on the concentration of
the sodium hypochlorite solution being transported in their trucks.
Although WECCO and TWC assert that their cargo tanks were
constructed to ASME requirements, and had wall, head, and lining
thicknesses that exceeded requirements for specification MC 312 cargo
tank motor vehicles, their application does not contain an assertion
that these trucks actually meet DOT's MC 312 specification. Rather, the
applicants state that specification plates are not required for these
vehicles to transport sodium hypochlorite with less than 16% available
chlorine, but that specification plates were applied to their trucks
only to satisfy PUCO's insistence that a specification cargo tank motor
vehicle was required for the transportation of this material. RSPA
notes that the misrepresentation of any packaging as qualified for the
transportation of a hazardous material is a serious violation of both
49 U.S.C. 5104(a) and the HMR, whether or not that packaging is
actually used for the transportation of hazardous materials. However,
because there is no evidence that PUCO has enforced design,
construction, and operational requirements for MC 312 specification
cargo tanks against these companies in any manner different from that
specified in the HMR, issues relating to PUCO's assessment of penalties
for misrepresenting cargo tank motor vehicles as meeting the MC 312
specification are not part of this proceeding.
The application submitted by WECCO and TWC is being considered
solely with respect to issues that concern whether PUCO has required
the use of a specification cargo tank motor vehicle
[[Page 53051]]
for the transportation of sodium hypochlorite with less than 16%
available chlorine, after January 1, 1991. Neither the applicants nor
PUCO has provided RSPA with copies of shipping papers or other
documents to indicate the concentration of the sodium hypochlorite in
the 1991 shipments. However, as stated above, the PUCO hazardous
materials report forms for the June and July 1993 inspections (as
provided by WECCO and TWC) indicate that the hypochlorite solutions
were classed as Packing Group III materials. Packing Group III applies
to hypochlorite solutions with more than 5% but less than 16% available
chlorine. 49 CFR 172.101.
The following materials have been placed in the public docket of
this proceeding:
Mr. Comley's April 24, 1997 application for a preemption
determination and attachments.
RSPA's May 7, 1997 letter dismissing Mr. Comley's application.
Mr. Comley's May 12, 1997 reapplication for a preemption
determination, with attachments.
RSPA's May 23, 1997 letter requesting additional information.
Mr. Comley's May 29, 1997 letter and attachments.
PUCO's July 8, 1997 letter and attachments.
Copies of these materials will be provided at no cost upon request
to RSPA's Dockets Unit, located in Room 8421, 400 Seventh Street, SW,
Washington, DC 20590-0001; telephone 202-366-4453.
II. Federal Preemption
The Hazardous Materials Transportation Act (HMTA) was enacted in
1975 to give the Department of Transportation greater authority ``to
protect the Nation adequately against the risks to life and property
which are inherent in the transportation of hazardous materials in
commerce.'' Pub. L. 93-633 Sec. 102, 88 Stat. 2156, amended by Pub. L.
103-272 and codified as revised in 49 U.S.C. 5101. The HMTA
``replace[d] a patchwork of state and federal laws and regulations * *
* with a scheme of uniform, national regulations.'' Southern Pac.
Transp. Co. v. Public Serv. Comm'n, 909 F.2d 352, 353 (9th Cir. 1980).
On July 5, 1994, the HMTA was among the many Federal laws relating to
transportation that were revised, codified and enacted ``without
substantive change'' by Pub. L. 103-272, 108 Stat. 745. The Federal
hazardous material transportation law is now found in 49 U.S.C. Chapter
51.
A statutory provision for Federal preemption was central to the
HMTA. In 1974, the Senate Commerce Committee ``endorse[d] the principle
of preemption in order to preclude a multiplicity of State and local
regulations and the potential for varying as well as conflicting
regulations in the area of hazardous materials transportation.'' S.
Rep. No. 1102, 93rd Cong. 2nd Sess. 37 (1974). More recently, a Federal
Court of Appeals found that uniformity was the ``linchpin'' in the
design of the HMTA, including the 1990 amendments which expanded the
preemption provisions. Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d
1571, 1575 (10th Cir. 1991). In 1990, Congress specifically found that:
(3) many States and localities have enacted laws and regulations
which vary from Federal laws and regulations pertaining to the
transportation of hazardous materials, thereby creating the
potential for unreasonable hazards in other jurisdictions and
confounding shippers and carriers which attempt to comply with
multiple and conflicting registration, permitting, routing,
notification, and other regulatory requirements,
(4) because of the potential risks to life, property, and the
environment posed by unintentional releases of hazardous materials,
consistency in laws and regulations governing the transportation of
hazardous materials is necessary and desirable,
(5) in order to achieve greater uniformity and to promote the
public health, welfare, and safety at all levels, Federal standards
for regulating the transportation of hazardous materials in
intrastate, interstate, and foreign commerce are necessary and
desirable.
Pub. L. 101-615 Sec. 2, 104 Stat. 3244.
Following the 1990 amendments and the subsequent 1994 codification
of the Federal hazardous material transportation law, in the absence of
a waiver of preemption by DOT under 49 U.S.C. 5125(e), ``a requirement
of a State, political subdivision of a State, or Indian tribe'' is
explicitly preempted (unless it is authorized by another Federal law)
if
(1) complying with a requirement of the State, political
subdivision or tribe and a requirement of this chapter or a
regulation issued under this chapter is not possible; or
(2) the requirement of the State, political subdivision, or
Indian tribe, as applied or enforced, is an obstacle to
accomplishing and carrying out this chapter or a regulation
prescribed under this chapter.
49 U.S.C. 5125(a). These two paragraphs set forth the ``dual
compliance'' and ``obstacle'' criteria which RSPA had applied in
issuing inconsistency rulings before 1990. While advisory in nature,
these inconsistency rulings were ``an alternative to litigation for a
determination of the relationship of Federal and State or local
requirements'' and also a possible ``basis for an application * * *
[for] a waiver of preemption.'' Inconsistency Ruling (IR) No. 2, Rhode
Island Rules and Regulations Governing the Transportation of Liquefied
Natural Gas and Liquefied Propane Gas, etc. 44 FR 75566, 76657 (Dec.
20, 1979). The dual compliance and obstacle criteria are based on U.S.
Supreme Court decisions on preemption. Hines v. Davidowitz, 312 U.S. 52
(1941); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132
(1963); Ray v. Atlantic Richfield, Inc., 435 U.S. 151 (1978).
In the 1990 amendments, Congress also confirmed that there is no
room for differences from Federal requirements in certain key matters
involving the transportation of hazardous material. As now codified, a
non-Federal requirement ``about any of the following subjects, that is
not substantively the same as a provision of this chapter or a
regulation prescribed under this chapter,'' is preempted unless it is
authorized by another Federal law or DOT grants a waiver of preemption:
(A) the designation, description, and classification of
hazardous material.
(B) the packing, repacking, handling, labeling, marking, and
placarding of hazardous material.
(C) the preparation, execution, and use of shipping documents
related to hazardous material and requirements related to the
number, contents, and placement of those documents.
(D) the written notification, recording, and reporting of the
unintentional release in transportation of hazardous material.
(E) the design, manufacturing, fabricating, marking,
maintenance, reconditioning, repairing, or testing of a packaging or
a container represented, marked, certified, or sold as qualified for
use in transporting hazardous material.
49 U.S.C. 5125(b)(1). RSPA has defined ``substantively the same'' to
mean ``conforms in every significant respect to the Federal
requirement. Editorial and other similar de minimis changes are
permitted.'' 49 CFR 107.202(d).
Under 49 U.S.C. 5125(d)(1), any directly affected person may apply
to the Secretary of Transportation for a determination whether a State,
political subdivision or Indian tribe requirement is preempted. This
administrative determination replaced RSPA's process for issuing
inconsistency rulings. The Secretary of Transportation has delegated to
RSPA the authority to make determinations of preemption, except for
those concerning highway routing which have been delegated to FHWA. 49
CFR 1.53(b). Under RSPA's regulations, preemption determinations are
issued by RSPA's Associate Administrator for Hazardous Materials
Safety. 49 CFR 107.209(a).
[[Page 53052]]
Section 5125(d)(1) requires that notice of an application for a
preemption determination must be published in the Federal Register. Id.
Following the receipt and consideration of written comments, RSPA
publishes its determination in the Federal Register. See 49 CFR
107.209(d). A short period of time is allowed for filing of petitions
for reconsideration. 49 C.F.R. 107.211. Any party to the proceeding may
seek judicial review in a Federal district court. 49 U.S.C. 5125(f).
RSPA's authority to issue preemption determinations does not
provide a means for review or appeal of State enforcement proceedings,
nor does RSPA consider any of the State's procedural requirements
applied in an enforcement proceedings. The filing of an application for
a preemption determination does not operate to stay a State enforcement
proceeding.
Preemption determinations do not address issues of preemption
arising under the Commerce Clause of the Constitution or under statutes
other than the Federal hazardous material transportation law unless it
is necessary to do so in order to determine whether a requirement is
authorized by another Federal law. A State, local or Indian tribe
requirement is not authorized by another Federal law merely because it
is not preempted by another Federal statute. Colorado Pub. Util. Comm'n
v. Harmon, above, 951 F.2d at 1581 n.10.
In making preemption determinations under 49 U.S.C. 5125(d), RSPA
is guided by the principles and policy set forth in Executive Order No.
12,612, entitled ``Federalism'' (52 FR 41685, Oct. 30, 1987). Section
4(a) of that Executive Order authorizes preemption of State laws only
when a statute contains an express preemption provision, there is other
firm and palpable evidence of Congressional intent to preempt, or the
exercise of State authority directly conflicts with the exercise of
Federal authority. Section 5125 contains express preemption provisions,
which RSPA has implemented through its regulations.
III. Public Comment
Comments should be limited to whether Federal hazardous material
transportation law preempts a requirement allegedly applied and
enforced by PUCO, after January 1, 1991, for the use of a DOT
specification cargo tank motor vehicle for the transportation of
hypochlorite solutions containing more than 5% and less than 16%
available chlorine. WECCO and TWC have not provided any evidence to
indicate that PUCO enforces different requirements for the design,
construction, and certification of MC 312 specification cargo tank
motor vehicles. In addition, allegations in the application relating to
PUCO's procedures for holding hearings and assessing penalties are not
subject to this proceeding.
Persons submitting comments should:
(1) Set forth in detail the manner in which PUCO applies and
enforces requirements for transportation of hypochlorite solution with
more than 5% but less than 16% available chlorine; and
(2) Specifically address whether PUCO has enforced a requirement
concerning the packing of a hazardous material that is ``not
substantively the same as'' the requirements in the HMR.
Comments may also address the ``dual compliance'' and ``obstacle''
criteria described in Part II, above.
Persons intending to comment should review the standards and
procedures governing RSPA's consideration of applications for
preemption determinations, set forth at 49 CFR 107.201-107.211.
Issued in Washington, DC, on October 3, 1997.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 97-26918 Filed 10-9-97; 8:45 am]
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