[Federal Register Volume 64, Number 59 (Monday, March 29, 1999)]
[Notices]
[Pages 14965-14968]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7654]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration
[Docket No. RSPA-97-2968 (PDA-17(R))]


Preemption Determination No. PD-15(R); Public Utilities 
Commission of Ohio, Requirements for Cargo Tanks

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

ACTION: Notice of administrative determination of preemption by RSPA's 
Associate Administrator for Hazardous Materials Safety.

APPLICANTS: William E. Comley, Inc. (WECCO) and TWC Transportation 
Corporation (TWC).

LOCAL LAWS AFFECTED: Ohio Admin. Code Sec. 4901:2-05-02.

APPLICABLE FEDERAL REQUIREMENTS: Federal hazardous material 
transportation law, 49 U.S.C. 5101 et seq., and the Hazardous Materials 
Regulations (HMR), 49 CFR Parts 171-180.

MODES AFFECTED: Highway.
SUMMARY: Written requirements of the State of Ohio applicable to the 
transportation of hazardous materials are consistent with the HMR. 
There is insufficient evidence that the Public Utilities Commission of 
Ohio (PUCO) has applied or enforced requirements governing the 
transportation of hypochlorite solutions in any different manner than 
provided in the HMR.

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. Background

    WECCO and 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 PUCO, with 
respect to cargo tank motor vehicles used to transport hypochlorite 
solutions. According to WECCO and TWC, PUCO has brought enforcement 
cases against these companies based on their use of a non-DOT 
specification cargo tank motor vehicle to transport hypochlorite 
solutions containing more than 5% but less than 16% available chlorine. 
On October 10, 1997, RSPA published a notice in the Federal Register 
inviting interested parties to submit comments on whether PUCO has 
required the use of a DOT specification cargo tank motor vehicle for 
transportation of hypochlorite solutions containing more than 5% but 
less than 16% available chlorine, after January 1, 1991. 62 FR 53049.
    In that notice, RSPA also discussed the separate assertions by 
WECCO and TWC 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 (1) designed and constructed in accordance with the 
ASME Code and (2) certified in some manner other than as specified in 
the HMR. That notice referred to the absence of any statement by WECCO 
and TWC that their trucks actually meet DOT's MC 312 specification; 
rather they indicated that they applied specification plates to their 
trucks to satisfy PUCO's alleged requirement for the use of a 
specification cargo tank motor vehicle to transport sodium hypochlorite 
with less than 16% available chlorine. As RSPA stated there:

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 related to PUCO's assessment of 
penalties for misrepresenting cargo tank motor vehicles as meeting 
the MC 312 specification are not part of this proceeding.

62 FR at 53050.
    In response to the October 10, 1997 public notice, PUCO and the 
National Tank Truck Carriers, Inc. submitted comments in opposition to 
the application. No comments were submitted by WECCO or TWC. No party 
submitted rebuttal comments, although PUCO submitted a further letter 
asking for a prompt dismissal of the application.

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 Section 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 Public Law 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,

[[Page 14966]]

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 the 
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).
    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 CFR 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, 
not 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. Discussion

    The State of Ohio has adopted (as State law) the requirements in 
the HMR applicable to highway transportation of hazardous materials, 
including hypochlorite solutions. Ohio Admin. Code 4901:2-05-02. Since 
January 1, 1991, the HMR have provided that 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 transport of liquids'' and that 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

[[Page 14967]]

[with] all discharge openings * * * securely closed during 
transportation.'' 49 CFR 173.510 (1990 ed.))
    Accordingly, the written requirements of the State of Ohio are 
fully consistent with the HMR. The issue presented by the application 
and supporting documents submitted by WECCO and TWC is whether PUCO is 
applying and enforcing requirements for the transportation of 
hypochlorite solutions in a manner different than provided in the HMR 
and as adopted by Ohio. The documents submitted by WECCO and TWC, 
including opinions and orders of PUCO, indicate the following:
    1. On June 3 and September 26, 1991, PUCO inspected WECCO's truck 
No. 88 and cited WECCO 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 stated that, ``in order to be an authorized package for 
the transportation of sodium hypochlorite under HMR 49 C.F.R. 
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 
willfully misrepresenting cargo tank certification. Of the total fine, 
$5,000 was suspended for six months.
    4. On June 22, 1993, PUCO inspected truck No. 88, which had been 
transferred by WECCO to TWC, and cited TWC 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 are indicated as ``Hypochlorite Solution, PG 
III.''
    5. On July 3, 1993, PUCO inspected TWC's truck No. 66 and cited TWC 
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 that 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.
    In its comments, PUCO states that ``this case presents no 
preemption controversy.'' It summarizes its enforcement proceedings 
against WECCO and TWC and states that these companies failed to appeal 
the PUCO orders as provided by Ohio statutes. PUCO further denies that 
it has ever required any carrier of hypochlorite solutions, between 5% 
and 16% available chlorine, to use a DOT specification cargo tank motor 
vehicle. According to an affidavit from the Chief of the Hazardous 
Materials Division of PUCO's Transportation Department, a search of 
data covering all commercial vehicle inspections since January 1, 1991 
failed to reveal any other instance where PUCO had cited a carrier for 
transporting Packing Group III hypochlorite solutions in an 
unauthorized cargo tank motor vehicle. Rather, PUCO stresses that the 
cargo tanks used by WECCO and TWC ``contained a number of design flaws 
that rendered them unsuitable for hazardous materials carriage.''
    PUCO asserts that the principal issue in these enforcement 
proceedings was whether WECCO and TWC had misrepresented their cargo 
tank motor vehicles as meeting the MC 312 specification. It states 
that, in the proceedings that led to the December 17, 1992 Opinion and 
Order, WECCO presented no evidence as to the level of available 
chlorine in the sodium hypochlorite being transported. PUCO indicates 
that its October 25, 1995 Opinion and Order found that TWC's tanks were 
unauthorized because ``Leakage was again discovered at several points 
along the tank's pressure and discharge system, and a strong chlorine 
odor was observed by the Commission's field safety inspector.'' Both 
PUCO and NTTC argue that WECCO and TWC have improperly invoked RSPA's 
preemption determination process, and that the applicants' sole remedy 
is to appeal the PUCO enforcement orders as provided by Ohio law rather 
than to seek a determination from DOT.
    Under all the information available in this case, it is unclear 
whether PUCO's December 17, 1992 and October 25, 1995 Opinions and 
Orders actually find that WECCO and TWC violated Ohio requirements by 
transporting sodium hypochlorite with less than 16% available chlorine 
in a non-DOT specification vehicle. Nonetheless, there is no evidence 
that PUCO applies or enforces a general requirement for the use of a 
DOT-specification cargo tank motor vehicle to transport hypochlorite 
solutions with less than 16% available chlorine. If PUCO misinterpreted 
or misapplied the HMR's requirements (as adopted in Ohio law) in the 
specific enforcement proceedings involving WECCO and TWC, those parties 
could have appealed the orders in those proceedings in accordance with 
Ohio law. This is not a ground for a finding of preemption, especially 
where (as here) the State's written requirement is identical to the 
HMR. In PD-14(R), Houston, Texas Fire Code Requirements on the Storage, 
Transportation, and Handling of Hazardous Materials, 63 FR 67506, 67510 
n.4 (Dec. 7, 1998), petition for reconsideration pending, RSPA recently 
reiterated that,

    As a general matter, an inconsistent or erroneous interpretation 
of a non-Federal regulation should be addressed in the appropriate 
State or local forum, because ``isolated instances of improper 
enforcement (e.g., misinterpretation of regulations) do not render 
such provisions inconsistent'' with Federal hazardous material 
transportation law. IR-31, Louisiana Statutes and Regulations on 
Hazardous Materials Transportation, 55 FR 25572, 25584 (June 21, 
1990), appeal dismissed as moot, 57 FR 41165 (Sept. 9, 1992), quoted 
in PD-4(R), California Requirements Applicable to Cargo Tanks 
Transporting Flammable and Combustible Liquids, 58 FR 48940 (Sept. 
20, 1993), decision on reconsideration, 60 FR 8800 (Feb. 15, 1995).

IV. Ruling

    Written requirements of the State of Ohio applicable to the 
transportation of hazardous materials are consistent with the HMR. 
There is insufficient evidence that PUCO has applied or enforced 
requirements governing the transportation of hypochlorite solutions in 
any different manner than provided in the HMR.

[[Page 14968]]

V. Petition for Reconsideration/Judicial Review

    In accordance with 49 CFR 107.211(a), ``[a]ny person aggrieved'' by 
this decision may file a petition for reconsideration within 20 days of 
publication of this decision in the Federal Register. Any party to this 
proceeding may seek review of RSPA's decision ``in an appropriate 
district court of the United States * * * not later than 60 days after 
the decision becomes final.'' 49 U.S.C. 5125(f).
    This decision will become RSPA's final decision 20 days after 
publication in the Federal Register if no petition for reconsideration 
is filed within that time. The filing of a petition for reconsideration 
is not a prerequisite to seeking judicial review of this decision under 
49 U.S.C. 5125(f).
    If a petition for reconsideration of this decision is filed within 
20 days of publication in the Federal Register, the action by RSPA's 
Associate Administrator for Hazardous Materials Safety on the petition 
for reconsideration will be RSPA's final decision. 49 CFR 107.211(d).

    Issued in Washington, D.C. on March 23, 1999.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 99-7654 Filed 3-26-99; 8:45 am]
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