[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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