[Federal Register Volume 64, Number 156 (Friday, August 13, 1999)]
[Notices]
[Pages 44265-44267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21019]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration
[Preemption Determination No. PD-15(R); Docket No. RSPA-97-2968 (PDA-
17(R))]


Public Utilities Commission of Ohio Requirements for Cargo Tanks

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

ACTION: Decision on petition for reconsideration of administrative 
determination of preemption.

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

State 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: RSPA affirms its March 29, 1999 determination that 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 applied to RSPA for an administrative determination 
that Federal hazardous material transportation law preempts an alleged 
requirement of the State of Ohio, as supposedly applied and enforced by 
PUCO, with respect to cargo tank motor vehicles used to transport 
hypochlorite solutions. According to these two companies, PUCO brought 
enforcement cases against them based on their use of a non-DOT 
specification cargo tank motor vehicle to transport hypochlorite

[[Page 44266]]

solutions containing more than 5% but less than 16% available chlorine. 
WECCO and TWC have not paid the total of almost $25,000 in civil 
penalties assessed by PUCO.
    RSPA dismissed the first application submitted by WECCO and TWC. 
After considering additional information supplied by these companies in 
support of their second application, on October 10, 1997, RSPA 
published a notice in the Federal Register inviting interested parties 
to comment on these companies' application. 62 FR 53049. In response to 
that notice, PUCO and the National Tank Truck Carriers, Inc. (NTTC) 
submitted comments opposing the application of WECCO and TWC. The 
applicants did not submit further comments.
    In its decision in Preemption Determination (PD) No. 15(R), 
published in the Federal Register on March 29, 1999, RSPA found that 
written requirements of the State of Ohio applicable to the 
transportation of hazardous materials are consistent with the HMR and 
that 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.'' 64 FR 14965, 14967. RSPA explained that WECCO and TWC could 
have appealed an individual misinterpretation or misapplication of the 
HMR's requirements in the PUCO enforcement proceedings and stated 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).

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), decision on petition for reconsideration, 64 FR 
33949 (June 24, 1999), quoted from 64 FR 14967.
    In Part II of its decision in PD-15(R), RSPA discussed the 
applicability of Federal hazardous material transportation law to the 
transportation of hazardous materials in commerce and the standards for 
making determinations of preemption. 64 FR 14965-66. As explained 
there, unless DOT grants a waiver or there is specific authority in 
another Federal law, a State (or other non-Federal) requirement is 
preempted if:

--It is not possible to comply with both the State requirement and a 
requirement in the Federal hazardous material transportation law or 
regulations;
--The State requirement, as applied or enforced, is an ``obstacle'' 
to accomplishing and carrying out the Federal hazardous material 
transportation law or regulations; or
--The State requirement concerns a ``covered subject'' and is not 
``substantively the same as'' a provision in the Federal hazardous 
material transportation law or regulations. Among the five covered 
subjects are (1) ``the designation, description, and classification 
of hazardous material,'' and (2) the ``packing, repacking, handling, 
labeling, marking, and placarding of hazardous material.''

See 49 U.S.C. 5125 (a) & (b). These preemption provisions stem from 
congressional findings that State and local laws which vary from 
Federal hazardous material transportation requirements can create ``the 
potential for unreasonable hazards in other jurisdictions and 
confounding shippers and carriers which attempt to comply with multiple 
and conflicting . . . regulatory requirements,'' and that safety is 
advanced by ``consistency in laws and regulations governing the 
transportation of hazardous materials.'' Pub. L. 101-615 Sections 2(3) 
& 2(4), 104 Stat. 3244.
    In PD-15(R), RSPA also explained its procedures for issuing 
preemption determinations and the rights to file a petition for 
reconsideration and/or judicial review. 63 FR at 67509, 67511.
    Within the 20-day time period provided in 49 CFR 107.211(a), WECCO 
and TWC filed a petition for reconsideration of PD-15(R). These 
companies certified that they had mailed a copy of their petition to 
PUCO and NTTC, the only parties that had submitted comments. PUCO 
submitted comments on the City's petition for reconsideration.

II. Petition for Reconsideration

    In their petition for reconsideration, WECCO and TWC acknowledge 
that the State of Ohio has adopted the Federal HMR verbatim. They argue 
that ``RSPA's ruling claim of `nsufficiency of evidence' is 
incomprehensible,'' and they present a lengthy list of complaints about 
the two enforcement proceedings brought against them. They assert such 
matters as

--The right of these companies to represent themselves ``pro se'' in 
the PUCO enforcement hearings;
--The failure of a PUCO commissioner to attend the PUCO enforcement 
hearings;
--An alleged failure of PUCO to serve a ``Notice of Apparent 
Violations;
--The preponderance of the evidence in the PUCO enforcement hearings 
and allegations that ``[t]he Department tampered with evidence and 
records while the [WECCO and TWC] trucks were impounded''; and
--The Ohio Governor and other State officials ``each became Party 
through malfeasance or misfeasance in office.''

    The conclusion of these parties is that ``Ohio did enforce a 
variance and conflicting regulations against WECCO and TWC.'' They 
state that it would be ``wrong, immoral, and illegal'' for RSPA to 
``violate law by supporting the Ohio Department's lawlessness.''
    The petition for reconsideration submitted by WECCO and TWC 
contains the same arguments as previously considered by RSPA in PD-
15(R). These companies still have not provided any information or 
evidence that PUCO has generally enforced requirements concerning the 
transportation of hazardous materials in a manner inconsistent with the 
HMR. As PUCO states in its responding comments, the petition for 
reconsideration ``presents nothing new for RSPA's consideration and, 
instead, merely attempts to once again improperly invite RSPA to sit as 
an appeals court.''

III. Ruling

    RSPA denies the petition for reconsideration filed by WECCO and TWC 
and affirms its March 29, 1999 determination that 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.

IV. Final Agency Action

    In accordance with 49 CFR 107.211(d), this decision constitutes 
RSPA's final agency action on the application of WECCO and TWC for a 
determination of preemption as to requirements of the State of Ohio, as 
applied and enforced by PUCO, concerning the transportation of 
hypochlorite solutions in cargo tank motor vehicles.


[[Page 44267]]


    Issued in Washington, DC on August 9, 1999.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 99-21019 Filed 8-12-99; 8:45 am]
BILLING CODE 4910-60-P