[Federal Register Volume 60, Number 31 (Wednesday, February 15, 1995)]
[Notices]
[Pages 8774-8797]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3590]
[[Page 8773]]
_______________________________________________________________________
Part II
Department of Transportation
_______________________________________________________________________
Research and Special Programs Administration
_______________________________________________________________________
California and Los Angeles County Requirements Applicable to the On-
site Handling and Transportation of Hazardous Materials; Notice
Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 /
Notices
[[Page 8774]]
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
[Preemption Determination Nos. PD-8(R), PD-9(R), PD-10(R) and PD-11(R);
Docket Nos. PDA-9(R), PDA-7(R), PDA-10(R), and PDA-11(R), respectively]
California and Los Angeles County Requirements Applicable to the
On-site Handling and Transportation of Hazardous Materials
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Administrative determinations of preemption by RSPA's Associate
Administrator for Hazardous Materials Safety.
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Applicants
Docket PDA-7(R)--HASA, Inc.
Dockets PDA-9(R), PDA-10(R), PDA-11(R)--Swimming Pool Chemical
Manufacturers' Association (SPCMA)
State and Local Laws Affected
PD-8(R) (Docket PDA-9(R))--
Chapter 6.95, California Health and Safety Code:
Sec. 25501.3
Sec. 25503.7
PD-9(R) (Docket PDA-7(R))--
Title 2 Los Angeles County Code:
Sec. 2.20.140
Sec. 2.20.150
Sec. 2.20.160
Sec. 2.20.170
Title 32 Los Angeles County Code:
Sec. 4.108.c.7
Table 4.108-A
Sec. 79.809 (b), (c) and (f)
Sec. 80.101(a) exception 1
Sec. 80.101(b)
Sec. 80.103(a)
Sec. 80.103(b)(1)
Sec. 80.103(b)(2)
Sec. 80.103 (c), (d) and (e)
Sec. 80.201
Sec. 80.202 (a) and (b)
Sec. 80.203
Appendix VI-A
Sec. 80.301(a)(2)
Sec. 80.301(b)(1)
Sec. 80.402(b)(3)(G)(i)
Sec. 80.402(c)(8)(A)
PD-10(R) (Docket PDA-10(R))--
Title 32 Los Angeles County Code:
Sec. 4.108(c)(8)
Sec. 9.105
Sec. 75.101
Sec. 75.103(a)
Table 75.103-A
Sec. 75.104
Sec. 75.105 (a) and (b)
Sec. 75.108
Sec. 75.205
Sec. 75.602 (a), (b) and (c)
PD-11(R) (Docket PDA-11(R))--
Title 32 Los Angeles County Code:
Sec. 4.108.c.7
Applicable Federal Requirements: Federal hazardous material
transportation law (Federal hazmat law), 49 U.S.C. 5101-5127, and the
Hazardous Materials Regulations (HMR), 49 CFR Parts 171-180.
Mode Affected: Rail.
SUMMARY: Due to a lack of information in the record, RSPA is unable to
make a preemption determination regarding:
(1) California Health and Safety Code (CHSC) Sec. 25503.7, which
states that hazardous materials contained in any rail car, rail tank
car or rail freight container at the same railroad facility or business
facility for more than 30 days is deemed stored and subject to the
requirements of the CHSC;
(2) Title 32 LACoC Secs. 80.103(e), which requires that hazardous
materials business plans, risk management prevention programs and
hazardous materials inventory statements be posted in an approved
location and available to emergency responders; and
(3) 80.301(b)(1), which requires that containers and tanks be
designed constructed in accordance with nationally recognized
standards.
(4) Title 32 LACoC Secs. 80.402(b)(3)(G)(i) and 80.402(c)(8)(A),
which require that cylinders or portable containers of compressed gas
be unloaded within a ventilated gas cabinet, laboratory fume hood,
exhausted enclosure or separate gas storage room.
The following non-Federal requirements are preempted by Federal
hazmat law:
(1) Title 2 Los Angeles County Code (LACoC) Secs. 2.20.140,
2.20.150, 2.20.160, and 2.20.170, to the extent that those provisions
levy a fee on tank car unloading activities. The fees collected under
those provisions are not used for purposes related to hazardous
material transportation;
(2) Title 32 LACoC Sec. 79.809(f) as applied and enforced by Los
Angeles County. Los Angeles County fails to recognize a Department of
Transportation (DOT or Department) exemption that authorizes HASA, Inc.
to employ alternative methods of compliance with certain Federal tank
car unloading requirements;
(3) Title 32 LACoC Sec. 79.809(c), which prohibits a tank car from
remaining on a siding at point of delivery for more than 24 hours while
connected for transfer operations, unless otherwise approved by the
fire chief. The unloading restriction is not ``substantively the same''
as Federal tank car unloading requirements.
Federal hazmat law does not preempt any other CHSC or LACoC
provision for which HASA and SPCMA request preemption determinations.
FOR FURTHER INFORMATION CONTACT: Nancy E. Machado, Office of the Chief
Counsel, Research and Special Programs Administration, U.S. Department
of Transportation, 400 Seventh Street SW., Washington DC 20590-0001,
telephone 202-366-4400.
SUPPLEMENTARY INFORMATION:
Document Outline
I. General Preamble
A. Procedural Summary
B. Background
C. California Statutory and Regulatory Requirements
D. Preemption Under Federal Hazmat Law
E. General Authority Under Federal Hazmat Law
II. Preemption Determinations
A. PD-8(R) (Docket PDA-9(R))
1. Application for Preemption Determination
2. Discussion
a. Handling of Hazardous Materials
(1) CHSC Requirements
(2) SPCMA's Arguments and Comments Supporting Preemption
(3) Comments Opposing Preemption
(4) Analysis
b. Storage of Hazardous Materials
(1) CHSC Requirement
(2) SPCMA's Arguments and Comments Supporting Preemption
(3) Comments Opposing Preemption
(4) Analysis
3. Ruling
B. PD-9(R) (Docket PDA-7(R))
1. Application for Preemption Determination
2. Discussion
a. Fees
(1) LACoC Requirements
(2) HASA's Arguments and Summary of Comments
(3) Analysis
b. Permits
(1) LACoC Requirements
(2) HASA's Arguments and Summary of Comments
(3) Analysis
c. Hazard Classification
(1) LACoC Requirements
(2) HASA's Arguments and Summary of Comments
(3) Analysis
d. Storage
(1) LACoC Requirements
(2) HASA's Arguments and Summary of Comments
(3) Analysis
e. Unloading
(1) LACoC Requirements
(2) HASA's Arguments and Summary of Comments
(3) Analysis
(a) Unloading to Storage Tanks
(b) 24-Hour Time Limit
(c) Attendance
(d) Ventilation
f. Packaging Design and Construction
(1) LACoC Requirements
(2) HASA's Arguments and Summary of Comments
(3) Analysis
3. Ruling [[Page 8775]]
C. PD-10(R) (Docket PDA-10(R))
1. Application for Preemption Determination
2. Discussion
a. Permits
(1) LACoC Requirements
(2) HASA's Arguments and Summary of Comments
(3) Analysis
b. Definition/Classification of Cryogenic Fluids
(1) LACoC Requirements
(2) HASA's Arguments and Summary of Comments
(3) Analysis
c. Hazard Communication
(1) LACoC Requirements
(2) HASA's Arguments and Summary of Comments
(3) Analysis
d. Motor Vehicles
(1) LACoC Requirements
(2) HASA's Arguments and Summary of Comments
(3) Analysis
e. Packaging Design and Construction
(1) LACoC Requirements
(2) HASA's Arguments and Summary of Comments
(3) Analysis
3. Ruling
D. PD-11(R) Docket PDA-11(R))
1. Application for Preemption Determination
2. Discussion Regarding Permits
a. LACoC Requirements
b. HASA's Arguments and Summary of Comments
c. Analysis
3. Ruling
III. Appeal Rights
I. General Preamble
A. Procedural Summary
Each of the four Preemption Determination Applications (PDAs) at
issue in this matter relates to a California State statute or Los
Angeles County regulation applicable to the ``on-site'' transportation
and handling of hazardous materials. For this reason, RSPA has reviewed
these PDAs collectively, and is issuing its Preemption Determinations
(PDs) with respect to each of the PDAs simultaneously.
The information, discussion and citations provided in this General
Preamble constitute a part of each of the four PDs identified above.
Where information or statements in this General Preamble address a
specific PD, that information is relevant only to that PD. This General
Preamble includes a discussion of the factual background applicable to
each of the applications, a brief discussion of the California
statutory and Los Angeles County regulatory requirements at issue in
the four PDAs addressed in this document, and discussions regarding
general authority and preemption under Federal hazmat law. It is
followed by four PDs, each representing a separate administrative
proceeding. These PDs do not address the issue of preemption under the
Federal Railroad Safety Act of 1970, as amended, 45 U.S.C. 421 et seq.
Appendix A to this document contains the text of each CHSC and
LACoC provision that is at issue.
B. Background
On December 22, 1992, HASA, Inc. applied for a determination that
Federal hazmat law preempts certain provisions of LACoC Titles 2 and 32
applicable to the transportation and handling of hazardous materials in
railroad tank cars on private property (Docket PDA-7(R)). HASA, a
California corporation, manufactures, packages, warehouses, and
transports chemical compounds for use in, among other things, potable
and waste water treatment, and swimming pool and spa disinfection. HASA
receives railroad tank cars containing liquefied chlorine, a liquefied
compressed gas, from manufacturers engaged in interstate commerce. HASA
unloads liquefied chlorine from railroad tank cars on a private siding
adjacent to its facility in Santa Clarita, California. It has
manufacturing and distribution facilities located in Santa Clarita,
California, and Arizona. It distributes products throughout the western
United States, Alaska and Hawaii.
Santa Clarita is an incorporated city in Los Angeles County. HASA
explains that Santa Clarita does not maintain a city fire department.
Instead, Santa Clarita is one of many cities that contracts with the
Consolidated Fire Protection District of Los Angeles County (CFPD/LACo)
for fire protection. Fire protection services for the CFPD/LACo are
provided by the Los Angeles County Fire Department. HASA states that
the CFPD/LACo adopted LACoC Title 32 as the fire code for the CFPD/
LACo. Consequently, the fire codes for the County of Los Angeles and
the CFPD/LACo are identical.
Between December 30, 1992, and January 20, 1993, SPCMA, a non-
profit organization with members involved in the transportation of
hazardous materials, submitted three separate applications (Dockets
PDA-9(R), PDA-10(R) and PDA-11(R)) seeking determinations that Federal
hazmat law preempts certain provisions of:
(a) CHSC Chapter 6.95 as they apply to the on-site handling and
storage of hazardous materials in railroad tank cars (Docket PDA-9(R));
(b) LACoC Title 32 as they apply to the on-site transportation and
handling of cryogenic liquids in railroad tank cars, including
unloading, storage, and the construction of containers used for
transporting cryogenic liquids (Docket PDA-10(R)); and
(c) LACoC Title 32 as they apply to the on-site transportation and
handling of compressed gases in railroad tank cars (Docket PDA-11(R)).
SPCMA is a non-profit organization composed of individual member
companies with manufacturing and distribution facilities located across
the United States, including California. SPCMA members manufacture,
package, warehouse, and transport chemical compounds for use in potable
and waste water treatment, and swimming pool and spa disinfection.
SPCMA states that many of these chemicals are classified as hazardous
material by the HMR. For example, SPCMA's members transport, load, and
off-load chlorine in railroad tank cars, cargo tanks, cylinders, and
multi-unit tank car tanks, at facilities owned or leased by a member,
or at facilities under a member's direct control.
SPCMA says that while some SPCMA members are subject to LACoC Title
32 because of the location of their facilities, others are subject to
Title 32 because they ship into or transport hazardous materials
through the CFPD/LACo or unincorporated areas of Los Angeles County.
On January 26, 1993, RSPA published a Public Notice and Invitation
to Comment on HASA's application (58 FR 6176). That Notice set forth
the text of HASA's application and asked that comments be filed with
RSPA on or before March 31, 1993, and that rebuttal comments be filed
on or before June 4, 1993.
On February 12, 1993, RSPA published a Public Notice and Invitation
to Comment on each of SPCMA's applications (58 FR 8480, 8488, 8494).
Those Notices set forth the text of SPCMA's applications and asked that
comments be filed with RSPA on or before April 9, 1993, and that
rebuttal comments be filed on or before June 4, 1993.
In a September 10, 1993 letter to Secretary of Transportation
Federico Pena, Congressman George Miller (D-CA), Chairman of the House
Committee on Natural Resources, stated his opposition to SPCMA's
request for a preemption determination in Docket PDA-9(R). This letter
was received outside the rebuttal comment period in PDA-9(R).
In a September 13, 1993 letter to Secretary Pena, California State
Assemblyman Robert J. Campbell and 23 other State legislators requested
that the Department deny SPCMA's request for a preemption determination
in [[Page 8776]] Docket PDA-9(R). This letter also was received outside
the rebuttal comment period in Docket PDA-9(R).
On October 14, 1993, RSPA published a Public Notice in the Federal
Register (58 FR 53239) reopening the comment period in each of the four
matters to allow all interested parties an opportunity to respond to
Congressman Miller's and the California State legislators' letters.
RSPA reopened the comment period in all four PDAs because they relate
to the same California statutory and local regulatory requirements.
RSPA also requested further information regarding how the California
and Los Angeles County requirements at issue actually are applied and
enforced. Furthermore, RSPA asked HASA and SPCMA to amend their
applications to the extent necessary to make them consistent with the
1993 amendments to LACoC Title 32, which were adopted by Los Angeles
County shortly after HASA's and SPCMA's applications were filed with
RSPA.
C. California's Statutory and Regulatory Requirements
CHSC Chapter 6.95 (Secs. 25500 et seq.) was enacted by the
California Legislature in 1985. Section 25500, entitled ``Legislative
Findings and Declaration,'' sets forth the legislative purpose of
Chapter 6.95. Specifically, it states
In order to protect the public health and safety and the
environment, it is necessary to establish business and area plans
relating to the handling and release or threatened release of
hazardous materials. The establishment of minimum statewide
standards for these plans is a statewide concern. Basic information
on the location, type, quantity, and the health risks of hazardous
materials handled, used, stored, or disposed of in the state, which
could be accidentally released into the environment, is not now
available to firefighters, health officials, planners, public safety
officers, health care providers, regulatory agencies, and other
interested persons. The information provided by business and area
plans is necessary in order to prevent or mitigate the damage to the
health and safety of persons and the environment from the release or
threatened release of hazardous materials into the workplace and
environment.
Chapter 6.95, Article 1 requires, among other things, that any
business that handles hazardous materials (above specified threshold
amounts) establish and implement a business plan for emergency response
to a release or threatened release of a hazardous material
(Sec. 25503.5). The required elements of a business plan include: (1)
an annual inventory of the chemicals handled; (2) an emergency response
plan and procedures; (3) an evacuation plan and procedures; and (4)
training for all new employees and annual training (Sec. 25504).
Chapter 6.95, Article 2 states that handlers of ``acutely hazardous
materials'' (AHM) (defined as any chemical designated as such in 40 CFR
Part 355, Appendix A of the Environmental Protection Agency's (EPA's)
regulations--which includes chlorine) must register with local
authorities and, if required by local authorities, prepare and submit a
risk management and prevention program (RMPP). An RMPP must include:
(1) a history of each accident involving AHM for the preceding three-
year period; (2) a report specifying the nature, age and condition of
the equipment used to handle AHM at the facility; (3) design, operating
and maintenance controls that minimize the risk of an accident
involving AHM; (4) detection, monitoring or automatic control systems
to minimize accident risk; and (5) a list of additional steps that the
business will take to reduce the risk of an accident, based on an
assessment of the processes, operations, and procedures of the business
(Sec. 25534).
The requirements in Chapter 6.95, Articles 1 and 2, closely follow
Federal environmental protection regulations under Title III of the
Superfund Amendments and Reauthorization Act (SARA Title III), 42
U.S.C. 11001, et seq. (also known as the Emergency Planning and
Community Right to Know Act of 1986 (EPCRA)), and Sec. 112(r) of the
Clean Air Act Amendments of 1990 (CAA Amendments), 42 U.S.C. 7412(r).
See, e.g., 42 U.S.C. 7412(r)(1) (duty for facilities to undertake
appropriate hazard assessment, design, and release response
activities); 42 U.S.C. 7412(r)(7)(B) (requiring accident prevention and
response planning, including reporting of accidental release history);
42 U.S.C. 11022 (SARA Title III chemical inventory and location
information); 42 U.S.C. 11041(b) (authorizing local SARA Title III
supplementary inventory forms).
The requirements in Chapter 6.95, Articles 1 and 2, are applied and
enforced at the local level. Chapter 6.95 Sec. 25502 states that
``every county shall implement [Chapter 6.95] as to the handling of
hazardous materials in the county.'' Nevertheless, the legislature
clearly indicated in Sec. 25500 that Chapter 6.95 does not ``occupy the
whole area of regulating the inventorying of hazardous materials and
the preparation of hazardous materials response plans * * * and the
legislature does not intend to preempt any local actions, ordinances,
or regulations which impose additional or more stringent requirements
on businesses which handle hazardous materials.''
In response to the mandate in Sec. 25502, Los Angeles County
implemented the requirements of Chapter 6.95 by promulgating the
regulations contained in LACoC Titles 2 and 32. On May 20, 1993, the
Los Angeles County Board of Supervisors passed Los Angeles County
Ordinance No. 93-0044, which amended Title 32 by incorporating the 1991
edition of the Uniform Fire Code (UFC) (with amendments, additions and
deletions).
D. Preemption Under Federal Hazmat Law
The Hazardous Materials Transportation Act (HMTA), former 49 App.
U.S.C. 1801 et seq. (1993), was enacted in 1975 to give DOT 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.'' Id. at Sec. 1801. 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, President Clinton signed Public Law (P.L.) 103-
272, which codified the provisions of the HMTA without substantive
change. P.L. 103-272, 108 Stat. 745 (1994). The purpose of P.L. 103-272
was to ``clean-up'' related Federal transportation laws, ``restating''
them in a format and language intended to be easier to understand
without changing substantive content. Consequently, P.L. 103-272
revised, enacted, and codified provisions of the former HMTA, which now
are found at 49 U.S.C. 5101-5127.
When it last substantively amended Federal hazmat law in 1990,
Congress stated that uniform regulations promote safety in the
transportation of hazardous materials. It 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
[[Page 8777]] 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.
P.L. 101-615, Sec. 2, 104 Stat. 3244 (1990).
In order to promote consistency in laws and regulations governing
the transportation of hazardous material, to achieve greater uniformity
among those laws, and to promote the public health, welfare, and safety
at all levels, Congress gave DOT the authority to preempt a requirement
of a State, political subdivision of a State or Indian tribe where:
(1) Complying with a requirement of the State, political
subdivision, or tribe and a requirement of [Federal hazmat law] or a
regulation prescribed under [Federal hazmat law] is not possible; or
(2) The requirement of the State, political subdivision, or
tribe, as applied and enforced, is an obstacle to accomplishing and
carrying out [Federal hazmat law] or a regulation prescribed under
[Federal hazmat law].
49 U.S.C. 5125.
The two paragraphs set forth the ``dual compliance'' and
``obstacle'' criteria that RSPA had applied in issuing inconsistency
rulings (IRs) prior to the 1990 amendments to the HMTA. While advisory
in nature, these IRs 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 pursuant to section 112(b) of the HMTA.''
Inconsistency Ruling (IR)-2, 44 FR 75566, 76657 (Dec. 20, 1979). The
dual compliance and obstacle criteria are based on U.S. Supreme Court
decisions on preemption. E.g., Ray v. Atlantic Richfield, Inc., 435
U.S. 151 (1978); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S.
132 (1963); Hines v. Davidowitz, 312 U.S. 52 (1941).
Federal hazmat law also explicitly preempts:
A law, regulation, order or other requirement of a State,
political subdivision of a State, or Indian tribe about any of the
following subjects that is not substantively the same as a provision
of [Federal hazmat law] or a regulation prescribed under [Federal
hazmat law]:
(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, fabrication, marking,
maintenance, reconditioning, repairing, or testing of a package or
container represented, marked, certified, or sold as qualified for
use in transporting hazardous material.
49 U.S.C. 5125(b).
RSPA has defined ``substantively the same'' to mean ``conforms in
every significant respect to the Federal requirement. 57 FR 20424,
20428. Editorial and other similar de minimis changes are permitted.''
49 CFR 107.202(d).
The HMTA explicitly exempted from preemption those non-Federal
requirements that were authorized by other Federal law. See 49 App.
U.S.C. 1804(a)(4)(A) and 1811(a) (a non-Federal requirement will not be
preempted if it is ``otherwise authorized by Federal law''). A non-
Federal requirement is not authorized by Federal law merely because it
is not preempted by another Federal statute. Colorado Pub. Utilities
Comm'n v. Harmon, 951 F.2d 1571 (10th Cir. 1991). The phrase ``unless
otherwise authorized by Federal law'' was omitted inadvertently as
``surplus'' when Sections 1804(a)(4)(A) and 1811(A) of the HMTA were
codified at 49 U.S.C. 5101 by P.L. 103-272. See H.R. Rep. No. 180, 103d
Cong., 1st Sess., at 32 (1993). It was later reinstated by P.L. 103-
429, October 31, 1994.
The Secretary of Transportation has delegated to RSPA the authority
to make preemption determinations, except for those concerning highway
routing, which are delegated to the Federal Highway Administration. 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). Federal hazmat law provides that the
Department may waive a finding of preemption upon application by a
State, political subdivision or Indian tribe, pursuant to 49 CFR
107.215 through 107.227, if the Department finds that the non-Federal
requirement provides the public at least as much protection as Federal
hazmat law and the HMR, and the requirement does not unreasonably
burden commerce. 49 U.S.C. 5125(e). Alternatively, the jurisdiction may
petition under 49 CFR 106.31 for adoption of a uniform Federal rule.
Preemption determinations under Federal hazmat law are consistent
with the principles and policy set forth in Executive Order No. 12,612
(``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 clear evidence
of Congressional intent to preempt, or the exercise of State authority
directly conflicts with the exercise of Federal authority. Federal
hazmat law contains an express preemption provision, which RSPA has
implemented through its regulations. Preemption determinations do not
address issues of preemption arising under the Commerce Clause of the
Constitution or under Federal law, other than Federal hazmat law,
unless it is necessary to do so in order to determine whether a
requirement is ``otherwise authorized by Federal law.''
E. General Authority Under Federal Hazmat Law
The four PDAs filed with RSPA raise the issues of whether
California's and Los Angeles County's regulation of a consignee's
transportation of hazardous materials within the gates of its facility,
and the consignee's unloading and storage of that hazardous material at
its facility, conflict with Federal hazmat law and the HMR.
The HMR have been promulgated in accordance with the direction in
49 U.S.C. 5103(b) that the Secretary of Transportation ``prescribe
regulations for the safe transportation of hazardous material in
intrastate, interstate and foreign commerce.'' ``Transportation'' is
defined as ``the movement of property, and any loading, unloading, or
storage incidental to the movement.'' 49 U.S.C. 5102(12). Ground
transportation is ``in commerce'' when it takes place on, across, or
along a public road. Consequently, the HMR, issued under the authority
of 49 U.S.C. 5103(b), apply to the ground transportation of hazardous
material on, across, or along a public road, including loading,
unloading and storage incidental to that transportation.
Federal hazmat law and the HMR do not apply to the movement of
hazardous material exclusively at a consignee's facility. On the other
hand, Federal hazmat law and the HMR regulate certain specific carrier
and consignee handling of hazardous materials, including unloading of
railroad tank cars, incidental to transportation in commerce, even when
that unloading takes place exclusively at a consignee's facility. See
49 CFR 174.67.
Unloading that is incidental to transportation includes consignee
unloading of tank cars containing hazardous materials. See 49 CFR
174.67 (requirements for tank car unloading). [[Page 8778]] Storage
that is incidental to transportation includes storage by a carrier that
may occur between the time a hazardous material is offered for
transportation to a carrier and the time it reaches its intended
destination and is accepted by the consignee. See 49 CFR 174.204(a)(2)
(requirements for tank car delivery, including storage, of gases).
Consequently, while consignor and consignee storage of hazardous
material is not incidental to transportation in commerce, IR-28, City
of San Jose, California; Restrictions on Storage of Hazardous
Materials, 55 FR 8884 (Mar. 8, 1990), rail carrier storage of hazardous
materials is incidental to transportation in commerce and is regulated
under Federal hazmat law and the HMR. See 49 CFR 174.204. On the other
hand, when a shipment is consigned by the offerer to a storage facility
rather than to an end user, the shipment is out of transportation once
received and then unloaded, or stored loaded, at the storage facility.
Other Federal agencies also regulate hazardous materials. For
example, EPA regulates hazardous materials to ensure that they are not
unintentionally or unlawfully released into the environment (see, e.g.,
SARA Title III, 42 U.S.C. 1101, et seq.) and the Department of Labor's
Occupational Safety and Health Administration (OSHA) regulates
hazardous materials in the workplace to ensure worker safety (see,
e.g., the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et
seq.).
II. Preemption Determinations
A. PD-8(R) (Docket PDA-9(R))
California Requirements for the Handling and Storage of Hazardous
Materials
Applicant: Swimming Pool Chemical Manufacturers' Association
(SPCMA) State Laws Affected: California Health and Safety Code (CHSC),
Chapter 6.95, Secs. 25501.3 and 25503.7
Summary: Federal hazardous material transportation law (Federal
hazmat law), 49 U.S.C. 5101-5127, does not preempt Sec. 25501.3 because
that section is otherwise authorized by Federal law, specifically Title
III of the Superfund Amendments and Reauthorization Act (SARA Title
III), 42 U.S.C. Secs. 11001, et seq. (also known as the Emergency
Planning and Community Right to Know Act of 1986 (EPCRA)), and
Sec. 112(r) of the Clean Air Act Amendments of 1990 (CAA Amendments),
42 U.S.C. 7412(r). There is insufficient information in the record to
determine whether Federal hazmat law preempts Sec. 25503.7, which
provides that certain bulk containers (including railroad tank cars)
are deemed ``stored'' if they are expected to remain, or actually
remain, at a facility for more than 30 days.
1. Application for Preemption Determination
In its application, SPCMA argues that Federal hazmat law preempts
certain on-site storage and handling provisions of Chapter 6.95 as they
pertain to transportation in commerce of hazardous materials in
railroad tank cars. SPCMA alleges that the original intent of Chapter
6.95 was to minimize the release of hazardous materials from a fixed
facility and to establish efficient evacuation plans for those
localities in the event of such a release. SPCMA contends that, as
originally enacted, Chapter 6.95 did not address or apply to the
transportation of hazardous materials. SPCMA alleges that the
subsequent addition of Sec. 25501.3 and Sec. 25503.7 expanded the reach
of Chapter 6.95 to transportation in commerce.
SPCMA believes that Federal hazmat law preempts these provisions
``irrespective of where or when such transportation of hazardous
materials including loading, unloading, and storage incidental thereto,
occurs, i.e., either in transit or on private property owned, leased,
and/or otherwise under the control of the consignor, consignee, and/or
transporter.'' SPCMA asserts that if the Research and Special Programs
Administration (RSPA) preempts these two provisions, the remaining
requirements in Chapter 6.95 no longer will apply to the transportation
of hazardous materials, and loading, unloading and storage incidental
thereto. In the event that RSPA does not preempt the amendments, SPCMA
asks that RSPA review the remaining 63 provisions of Chapter 6.95 to
determine whether they are preempted by Federal hazmat law.
In response to RSPA's February 12, 1993 Public Notice and
Invitation to Comment, 58 FR 8494, which set forth the text of SPCMA's
application, comments were submitted by the Chemical Waste
Transportation Institute (CWTI), the City of California City Fire
Department, Contra Costa County Health Services Department (Contra
Costa), the American Trucking Associations (ATA), the Compressed Gas
Association, the Carpinteria-Summerland Fire Protection District, the
State of California Chemical Emergency Planning and Response
Commission, the Kern County Fire Department, Congressman George Miller,
California State Assemblyman Robert J. Campbell and 23 other State
legislators, and the State of California Governor's Office of Emergency
Services (California OES). SPCMA filed rebuttal comments.
In response to RSPA's October 14, 1993 Public Notice re-opening the
comment period in Docket PDA-9(R), SPCMA, HASA, California OES, and the
County of Los Angeles Fire Department submitted comments.
2. Discussion
a. Handling of Hazardous Materials. (1) CHSC Requirement. SPCMA
challenges the following CHSC provision:
Chapter 6.95, Sec. 25501.3 defines the term ``handle'' to include
the use or potential for use of a quantity of hazardous material by the
connection of any marine vessel, tank vehicle, tank car, or container
to a system or process for any purpose other than the immediate
transfer to or from an approved atmospheric tank or approved portable
tank. (Section 25501(i), the general definition section of Chapter
6.95, states that ``handle'' means ``to use, generate, process,
produce, package, treat, store, emit, discharge, or dispose of a
hazardous material in any fashion.'' Section 25501.3 expanded that
definition to include, in certain instances, tank car unloading to a
system or process.)
(2) SPCMA's Arguments and Comments Supporting Preemption. SPCMA
asserts that Sec. 25501.3 extends all of the requirements of Chapter
6.95 to facilities that handle hazardous materials, including
facilities that unload compressed gases incidental to transportation in
commerce. SPCMA states that the exception in Sec. 25501.3 for immediate
transfers to or from approved atmospheric tanks or approved portable
tanks is not applicable to the handling of compressed gases because
compressed gases ``cannot be unloaded to or loaded from atmospheric
tanks, i.e., tanks which are open to the atmosphere, or to or from
portable tanks which are not pressure vessels, i.e., cylinders.''
SPCMA states that until a facility is in compliance with Chapter
6.95, the facility is not permitted to ``load, unload, or store
hazardous materials incidental thereto.'' Furthermore, it states that
transporters are prohibited from unloading and consignees are
prohibited from accepting hazardous materials shipments until the
receiving facility is in compliance with the State requirements. SPCMA
contends that, as a practical matter, none of its member companies with
facilities in California is in compliance with Chapter 6.95, and that
it is not aware of any company [[Page 8779]] operating in California
that is in compliance.
SPCMA concludes that Sec. 25501.3 should be preempted because the
requirement that handlers of hazardous materials comply with Chapter
6.95 is in addition to and different from Federal hazmat law and HMR
requirements, and is an obstacle to accomplishing and carrying out
those Federal requirements.
In its comments, CWTI agrees with SPCMA that loading and unloading
operations constitute ``handling,'' which CWTI argues is a ``covered
subject area.'' Specifically, CWTI states that,
Congress recognized the importance of loading and unloading
operations to ensure the safety of hazardous materials in
transportation when it included ``packing, repacking, (and) handling
* * * of hazardous materials'' as one of several regulatory subject
areas reserved to the federal government. Non-federal requirements,
unless they are ``substantively the same'' as the HMRs, are
preempted.
Nevertheless, CWTI acknowledges that Congress limited the
preemptive reach of Federal hazmat law to those non-Federal
requirements that are not ``otherwise authorized by Federal law.'' CWTI
notes that both SARA Title III, 42 U.S.C. Secs. 11001, et seq., and
Sec. 112(r) of the CAA Amendments, 42 U.S.C. 7412(r),
Impose requirements on persons and facilities that handle
hazardous materials with varying provisions for separate state
action. [CWTI] thinks that the impact of these statutes, whether at
the federal, state, or local level, cannot be avoided for facilities
and operations handling hazardous materials that are not ``in
transportation.''
HASA supports SPCMA's request for preemption and comments that the
provisions of Chapter 6.95, as implemented by Los Angeles County
through LACoC Titles 2 and 32, are applied and enforced ``as soon as
the tank car containing liquefied chlorine is moved by the railroad
from the railroad right-of-way to [HASA's] property and are applied and
enforced on a continuous basis until the unloaded tank car is moved
from [HASA's] property back to the railroad right of way.'' HASA
further asserts that the provisions of Chapter 6.95 are applied and
enforced against the railroad while the railroad is moving the car both
onto and off of HASA's property.
ATA also believes that Federal hazmat law preempts Sec. 25501.3. It
urges RSPA to find that ``transportation ends and storage begins when
the rail car or freight container is emptied of its contents,
regardless of the time period it awaits the unloading process on the
property of the ultimate user. In this instance, the [Federal hazmat
law] prevails and should, therefore, preempt the [CHSC].''
Nevertheless, ATA also states that authority under Federal hazmat law
``does not extend to the storage and use (unloading) of hazardous
materials once transportation has ended.'' ATA cites several cases
interpreting the Interstate Commerce Act of 1887, 49 U.S.C. Sec. 1 et
seq. (repealed by Act, October 17, 1978, P.L. 95-473, Sec. 4(b), 92
Stat. 1467, subject to certain exceptions) for the proposition that
``where on-site transportation is conducted at the location where
compressed gases are used or have come to `rest,' [Federal hazmat law]
no longer prevails. A material comes `to rest' when the intent of the
shipper is fulfilled. It is the intent, with persistence, that governs
when a product is in transportation.''
(3) Comments Opposing Preemption. Contra Costa states that Federal
hazmat law addresses safety during transportation in commerce, while
Chapter 6.95 continues attention to safety in the manufacturing process
following that transportation. Contra Costa emphasizes throughout its
comments that the intent of Chapter 6.95 is to regulate the users of
hazardous materials, not the transporters. It states that Chapter 6.95
requirements apply to the ``handling of hazardous materials during
processing and storage (i.e., manufacturing), not during
transportation.'' Contra Costa stresses that, contrary to statements
made by SPCMA in its application, there is no provision of Chapter 6.95
that prohibits a carrier from delivering hazardous materials to a
consignee. Also, it states that, contrary to SPCMA's assertions, there
are many businesses and industries operating in Contra Costa County
that are in compliance with Chapter 6.95.
Furthermore, Contra Costa states that even if there is an overlap
of Federal hazmat law and Chapter 6.95 jurisdiction in the area of
consignee loading or unloading of hazardous materials, the requirements
of Chapter 6.95 are not incompatible or in conflict with the Federal
requirements. Contra Costa indicates that Sec. 25501.3 is consistent
with the Environmental Protection Agency's (EPA's) intention to
regulate tank car unloading to a manufacturing process. Specifically,
Contra Costa notes that EPA issued a Notice of Proposed Rulemaking
(NPRM) wherein it proposed a list of regulated substances and threshold
quantities as required under Sec. 112(r) of the CAA Amendments, 42
U.S.C. 7412(r). 58 FR 5102, January 19, 1993. Contra Costa states that,
in the NPRM, EPA sets forth proposed requirements for chemical accident
prevention steps that must be taken by the owner or operator of a
stationary source. Contra Costa notes that EPA defines ``stationary
source'' to include ``transportation containers that are no longer
under active shipping orders and transportation containers that are
connected to equipment at the stationary source for the purposes of
temporary storage, loading, or unloading.''
California OES states that, through local government agencies, the
State of California has required over 75,000 businesses to complete
hazardous material emergency planning activities. It states that any
reduction of California's ability to regulate emergency preparedness
would increase the potential for chemical disasters. California OES
asserts that Chapter 6.95 requirements are substantially the same as
those set forth in SARA Title III and Sec. 112(r) of the CAA
Amendments. It notes that those Federal statutes, like Chapter 6.95,
require businesses to develop and implement emergency response plans
and accidental release prevention programs, to submit inventories of
hazardous materials used and stored at their facilities, and to notify
government agencies of releases of hazardous materials.
California OES also argues that Chapter 6.95 defines ``handling''
and ``handle'' specifically not to include transportation in commerce,
but rather to regulate only the use or potential use of hazardous
materials at business facilities. For example, by providing that the
immediate transfer of hazardous materials to or from a system or
process is outside the scope of ``handling,'' as defined in
Sec. 25501.3, California OES believes Chapter 6.95 avoids regulating
the loading or unloading of hazardous materials incidental to
transportation in commerce. California OES further states that--
SPCMA fails to point out that immediate transfers from
``approved portable tanks'' also are specifically excluded from the
Code, which would include the common practice of unloading or
loading a rail car, truck or marine vessel as regulated under
[Federal hazmat law]. * * * SPCMA presents no evidence whatsoever
demonstrating that loading or unloading from such approved tank cars
cannot occur, and that the Code's exemption for such practices is
therefore not applicable.
California OES indicates that Secs. 25501.3 and 25503.7 (discussed
below) were designed to close a loophole in the State's regulation of
hazardous materials at fixed facilities. California OES states that in
1991 it came to the attention of emergency responders and the State
legislature that [[Page 8780]] businesses in increasing numbers were
avoiding the public safety and emergency preparedness provisions of
State and Federal law by using unique storage methods for hazardous
materials. The businesses then claimed that the materials were still in
transportation in commerce and, thus, subject to Federal regulation.
For example, California OES says that businesses handling bulk
chemicals were using bulk containers, such as tank cars, for fixed
long-term storage at their facilities while they gradually off-loaded
the material. According to California OES, a facility also would
shuttle a bulk container to different nearby locations within the
facility and claim that it still was in transportation in commerce.
California OES asserts that chlorine has been one of the key chemicals
involved in this ``non-transportation related'' storage practice. It
says that to address the significant public safety risk of these
chemicals, and to reduce ambiguity, Chapter 6.95 was amended to clearly
identify when a business became subject to emergency response
requirements.
Finally, California OES asserts that ``the California Code does not
explicitly prohibit a business of any type that handles hazardous
materials from operating if it does not comply with the code, nor does
it require permits for operation. Instead, the purpose of the
California Code is to ensure that fixed facilities that handle
hazardous material implement appropriate emergency planning and
accident prevention programs.''
Congressman Miller states that a July 1993 chemical spill in
Richmond, California, located in Contra Costa County, underscores the
importance of denying SPCMA's request for preemption of certain
provisions of Chapter 6.95. He indicates that communities such as
Contra Costa County currently are covered by the risk management and
prevention program (RMPP), under Title 2 of Chapter 6.95, which
requires responsible management of Acutely Hazardous Materials (AHM),
such as chlorine. He expresses concern that RSPA's preemption of
provisions of Chapter 6.95 will set a policy precedent that could
render the RMPP useless, thereby depriving communities of accident
prevention measures and emergency response planning.
Assemblyman Campbell and 23 other State legislators also cite the
July 1993 chemical spill in Richmond, California, as evidence of a need
to strengthen California's risk management and prevention laws. The
legislators indicate that the State has worked diligently to put in
place statutory and regulatory programs designed to minimize the risk
of chemical accidents, citing Chapter 6.95 as an example. They say that
California's regulatory requirements are intended to reduce the risk of
accidents and assist in emergency response in the event that an
accident occurs. They maintain that it does not conflict with Federal
hazmat law and the HMR.
(4) Analysis. As discussed above in the General Preamble, unless
``otherwise authorized by Federal law'' or unless a waiver of
preemption is granted by the Department of Transportation (DOT),
Federal hazmat law explicitly preempts any requirement of a State or
political subdivision thereof or Indian tribe if it applies to the
``handling'' of hazardous materials and is not substantively the same
as the Federal requirement. See 49 U.S.C. 5125(b)(1)(B). ``Handling''
includes the unloading of hazardous materials, incidental to
transportation in commerce.
In 1986, Congress enacted SARA Title III, 42 U.S.C. Secs. 11001, et
seq., which requires States to establish State and local emergency
planning groups to develop chemical emergency response plans for each
community. SARA Title III also requires facilities to provide
information regarding the hazardous chemicals they have on site to
States, local planners, fire departments and, through them, the public.
This information forms the foundation of both the community emergency
response plans and the public-industry dialogue on risks and risk
reduction.
SARA Title III directly delegates to States the authority to engage
in emergency response planning, through the use of information gathered
from regulated facilities. SARA Title III does not apply to the
transportation, including storage incident to transportation, of any
substance or chemical subject to the requirements of Title III. See 42
U.S.C. 11047. In its regulations implementing SARA Title III, EPA
states that a substance is stored ``incident to transportation'' if it
is still under active shipping papers and has not reached the ultimate
consignee. See 40 CFR 355.40(b)(4)(ii). Consequently, hazardous
materials that are stored incident to transportation are not subject to
the requirements of SARA Title III. On the other hand, regulated
materials that have been delivered to the ultimate consignee's facility
are not stored ``incident to transportation,'' as that term is defined
by EPA, and are subject to SARA Title III requirements.
Pursuant to the requirement in Sec. 302 of SARA Title III, 42
U.S.C. 11002, EPA has issued a list of extremely hazardous substances
(which includes chlorine) and threshold planning quantities for each
substance. California regulates all 360 of the extremely hazardous
substances on EPA's Sec. 302 list. A facility is subject to the
requirements of SARA Title III if a substance on the Sec. 302 list is
present at the facility in an amount in excess of the threshold
planning quantity established for the substance. 42 U.S.C. 11002(b)(1).
Among other requirements, facilities subject to SARA Title III must
prepare and submit an emergency and hazardous chemical inventory form
to the appropriate local emergency planning committee (LEPC), State
emergency response commission (SERC), and fire department with
jurisdiction over the facility. 42 U.S.C. 11022(a)(1). Section
303(d)(3) of SARA Title III, 42 U.S.C. 11003(d)(3), specifically
requires the owner or operator of a facility to promptly provide to an
LEPC, on request, information that the LEPC believes is necessary for
developing and implementing an emergency plan. Thus, certain hazardous
materials (including chlorine) that are on site at SPCMA members'
facilities, in above-threshold quantities, awaiting consumption in the
manufacturing process, are regulated under SARA Title III. Furthermore,
SARA Title III specifically authorizes California, and all other
States, to collect information regarding these materials, for emergency
response purposes, from facilities that are subject to SARA Title III
requirements.
Although SARA Title III governs emergency response planning, it
does not mandate that facilities establish accident prevention
programs. The CAA Amendments of 1990, P.L. 101-549, 104 Stat. 2399,
amended Sec. 112 of the Clean Air Act, 42 U.S.C. 7412, by adding a new
subsection (r), which includes requirements related to chemical
accident prevention. The goal of Sec. 112(r) is to prevent accidental
releases, from facilities, of regulated substances and other extremely
hazardous substances to the air, and to minimize the consequences of
releases of chemicals that pose the greatest risk.
Section 112(r) has a number of provisions. It establishes a general
duty for facility owners or operators to identify hazards that may
result from releases, design and maintain a safe facility, and minimize
the consequences of releases when they occur. Section 112(r)(3)
requires EPA to promulgate a list of at least 100 substances that are
known to cause, or reasonably may be anticipated to cause, death,
injury, or serious adverse effects to human health or the environment
when released to air. EPA also is required to set thresholds for each
listed substance. The list of regulated substances and thresholds,
[[Page 8781]] issued pursuant to Sec. 112(r)(3), is used to determine
which facilities must comply with the accident prevention regulations.
On January 31, 1994, EPA published a final rule which included the
list of regulated substances and thresholds required under Sec. 112(r).
59 FR 4478 (Jan. 31, 1994). The final rule became effective on March 2,
1994. Various compressed gases, including chlorine, appear on the list
of regulated toxic substances. In that final rule, EPA defines
``stationary source'' as follows:
Stationary source means any building, structures, equipment,
installations, or substance emitting stationary activities which
belong to the same industrial group, which are located on one or
more contiguous properties, which are under the control of the same
person (or persons under common control), and from which an
accidental release may occur. A stationary source includes
transportation containers that are no longer under active shipping
papers and transportation containers that are connected to equipment
at the stationary source for the purpose of temporary storage,
loading, or unloading.
59 FR 4478, 4493 (definition of ``stationary source'') (to be codified
at 40 CFR 68.3) (emphasis added). This definition applies to all
regulations issued under Sec. 112(r). In the preamble to the final
rule, EPA states:
[F]or purposes of regulations under section 112(r), the term
stationary source does not apply to transportation conditions, which
would include storage incident to such transportation, of any 112(r)
regulated substance. . * * * [T]ransportation containers that are
not under active shipping papers are not considered by EPA to be in
storage incident to transportation; the agency considers the
definition of stationary source to include such containers.
59 FR 4490.
Section 112(r)(7), 42 U.S.C. 7412(r)(7), also requires EPA to
establish ``reasonable regulations and appropriate guidance'' to
provide for the prevention and detection of accidental releases and for
responses to such releases. These regulations must include, as
appropriate, provisions concerning facilities' use, operation, repair,
and maintenance of equipment to monitor, detect, inspect, and control
releases, including training of personnel in the use and maintenance of
equipment or in the conduct of periodic inspections. The regulations
must require facility owners or operators to prepare and implement risk
management plans that provide for compliance with regulations for
managing risk and include a hazard assessment, a prevention program,
and an emergency response program. The risk management plans developed
under those programs must be registered with EPA, and provided to the
Chemical Safety and Hazard Investigation Board established under the
CAA Amendments, State governments, local planning authorities, and the
public on request.
On October 20, 1993, EPA published an NPRM in the Federal Register
proposing regulations that would require stationary source owners or
operators that manufacture, process, use, store or otherwise handle
regulated substances in quantities that exceed specified thresholds to
develop and implement risk management programs, as required under
Sec. 112(r)(7). As part of the emergency response element of the risk
management program, EPA proposes that the emergency response plan be
coordinated with the LEPC plans required under SARA Title III for
chemical releases. On request of the LEPC, the owner of a facility
would be required to provide the LEPC with information necessary to
develop and implement the LEPC plan. This requirement is a restatement
of the mandate in Sec. 303 of SARA Title III, 42 U.S.C. 11003, that the
owner of a facility provide information to an LEPC, on request, and is
proposed to ensure that the facility and community planning efforts are
coordinated.
Many States, including California, have developed or are developing
programs for control of hazardous air pollutants and for prevention and
mitigation of accidental releases. Under Sec. 112(r), these programs,
developed to address specific State needs, may continue to exist and
even differ from Federal rules being developed by EPA under Sec. 112.
However, State programs must be approved by EPA. State accidental
release prevention programs, at a minimum, must be at least as
stringent as the Federal regulations.
Section 112(l), 42 U.S.C. 7412(l), gives EPA the authority to
approve and delegate Federal authority to the States. In the preamble
of the October 20, 1993 NPRM, EPA recognizes that several States,
including California, have existing risk management programs that
address the same basic elements that EPA proposed in its NPRM. EPA
recognizes that the existing State programs will need some revisions to
meet the requirements under the CAA Amendments, but expects that most
of the needed changes will involve the listing of chemicals and
adjusting of thresholds. EPA issued a final rule addressing the
approval of State programs and the delegation of Federal authorities on
November 26, 1993. 58 FR 62262 (to be codified at 40 CFR Part 63,
Subpart E). Section 112(l) also requires EPA to develop guidance for
States, especially for the registration of facilities.
EPA's Sec. 112(r) regulations apply in every State until a State
has sought and received EPA approval of its own program. Once a State
program is approved by EPA, the State may implement and enforce its
rules and programs in place of certain Federal rules promulgated under
Sec. 112(r), with the EPA-approved State rules and programs being
Federally enforceable. Consequently, EPA's regulation of tank car
unloading to a manufacturing process, as part of its implementation of
Sec. 112(r), is applicable to any State that does not have a risk
management program that is approved by EPA.
In its definition of ``stationary source,'' EPA clearly asserts
authority over transportation containers that are no longer under
active shipping papers and over transportation containers that are
connected to equipment at the stationary source for the purpose of
temporary storage, loading, or unloading. EPA regulates this activity
as part of its statutory mandate under the CAA Amendments to issue
regulations regarding hazardous materials accident prevention.
Section 310 of the Clean Air Act, as amended, states that ``this
Act shall not be construed as superseding or limiting the authorities
and responsibilities, under any other provision of law, of the [EPA]
Administrator, or any other Federal officer, department, or agency.''
42 U.S.C. 7610. Therefore, EPA's regulation of consignee unloading of
hazardous materials may not supersede or conflict with RSPA's
regulation of the same activity. But, it may coexist with it.
EPA's regulations and proposed regulations under Sec. 112(r) focus
on accident prevention and risk management of hazardous materials by
requiring owners of facilities that handle certain hazardous materials
above threshold amounts to: (1) register the name of the facility with
EPA; (2) develop and implement a risk management program that addresses
hazard assessment, prevention and emergency response; and (3) develop a
risk management plan for submission to certain Federal, State and local
entities. On the other hand, RSPA's tank car unloading regulation (49
CFR 174.67) applies to any person that unloads a tank car containing
any material classed as a hazardous material under the HMR, and focuses
solely on the physical aspects of unloading the tank car. EPA's
regulation of tank car unloading does not conflict with RSPA's
regulation of the same activity.
[[Page 8782]]
Pursuant to Sec. 112(r), EPA has authority over tank car unloading
by a facility to a manufacturing process for the purpose of chemical
spill prevention, and has the authority to delegate its
responsibilities under Sec. 112(r) to the States. Once EPA issues a
final rule regarding the Risk Management Programs for Chemical
Accidental Release Prevention, it will begin to analyze State
applications for Federal approval of State regulatory programs. RSPA,
therefore, finds that Sec. 112(r) of the CAA Amendments, 42 U.S.C.
7412(r), authorizes States' regulation of tank car unloading to a
manufacturing process for purposes of establishing accident prevention
programs that are within the scope of Sec. 112(r).
There is insufficient evidence in the record to substantiate
SPCMA's claim that Sec. 25501.3 is applied and enforced against
carriers. Furthermore, the evidence in the record does not support
SPCMA's claim that consignees are prohibited from accepting hazardous
materials shipments unless and until they are in compliance with
Chapter 6.95.
Consequently, Federal hazmat law does not preempt Sec. 25501.3
because it is otherwise authorized by Federal law--specifically,
Sec. 112(r) of the CAA Amendments, 42 U.S.C. 7412(r), and SARA Title
III, 42 U.S.C. 11001 et seq.
b. Storage of Hazardous Materials. (1) CHSC Requirement. SPCMA
challenges the following CHSC provision:
Chapter 6.95, Sec. 25503.7 states that a hazardous material
contained in any rail car, rail tank car, rail freight container,
marine vessel, or marine freight container is deemed stored and,
consequently, is subject to the requirements of Chapter 6.95 if it
remains within the same railroad, marine or business facility for more
than 30 days, or a business knows or has reason to know that it will.
Furthermore, a business must immediately notify the administering
agency whenever a hazardous material is stored in a rail car, rail tank
car, rail freight container, marine vessel, or marine freight
container.
(2) SPCMA's Arguments and Comments Supporting Preemption. SPCMA
claims that Sec. 25503.7 ``prohibits the storage of hazardous materials
at places where and at times when such storage is permitted by [Federal
hazmat law] and regulations thereunder.'' SPCMA asserts that ``there
are no provisions [of Federal hazmat law] or regulations thereunder
(Part 174 `Carriage by Rail' and Part 177 `Carriage by Public Highway')
which prohibit storage--incidental to transportation--of hazardous
materials in rail cars, rail tank cars, rail freight containers, marine
vessels, or marine freight containers.'' SPCMA cites language in
Sec. 174.204(a)(2) of the HMR--``such cars may be stored on a private
track * * * or on carrier tracks designated by the carrier for such
storage''--as granting specific authority for consignee storage of
hazardous materials in tank cars. SPCMA argues that ``the prohibition
of storage in rail tank cars is an obstacle to the transportation of
hazardous materials.''
HASA urges preemption of Sec. 25503.7. Nevertheless, HASA remarks
that it seldom has the same tank car ``on site'' for more than a few
days, and recognizes that ``section 25503.7 exempts incidental storage
of hazardous materials in railroad tank cars for periods of less than
30 days from the requirements of Chapter 6.95.''
ATA believes that Federal hazmat law preempts Sec. 25503.7. ATA
states in its comments to Dockets PDA-7(R), PDA-10(R), and PDA-11(R),
however, that ``[s]trict storage of materials for use on the
consignee's property is not governed by [Federal hazmat law] or the
HMRs.''
(3) Comments Opposing Preemption. California OES believes that the
HMR only address storage ``directly incidental to transportation, with
an aim to expediting the completion of such storage. * * * The [HMR] do
not permit the indefinite storage of hazardous materials.'' California
OES also states that ``contrary to SPCMA's claim, Code Sec. 25503.7
does not prohibit or even directly regulate the storage of hazardous
materials in rail cars. It simply requires facilities storing hazardous
materials in such cars for more than 30 days to prepare emergency
response plans and risk prevention plans.'' California OES indicates
that Sec. 25501.2 further clarifies that ``hazardous materials which
are in transit or are temporarily maintained in a fixed facility for a
period of less than 30 days during the course of transportation'' are
excluded from the coverage of Chapter 6.95.
CWTI believes that ``storage incidental to transportation refers to
any storage which may occur between the time a hazardous material is
offered for transportation to a carrier until it reaches its intended
destination and is accepted by the consignee.'' CWTI also notes, citing
a RSPA interpretation letter dated October 13, 1992, that ``[a] carrier
can be a consignee if a hazardous material is consigned to a carrier's
storage facility rather than to an end user of the material.'' CWTI
concludes that ``[s]hipments of hazardous materials in storage
incidental to transportation remain regulated under the HMRs. However,
the storage of accepted hazardous materials, no matter how temporary,
at its intended destination is not storage protected by [Federal hazmat
law].''
CWTI states that Congress limited the preemptive reach of Federal
hazmat law to those non-Federal requirements that are not ``otherwise
authorized by Federal law,'' and states that both SARA Title III and
the CAA Amendments impose requirements on persons and facilities that
handle hazardous materials, with varying provisions for separate State
action.
Contra Costa submits that SPCMA is incorrect in its assertion that
Sec. 25503.7 ``clearly prohibits the storage of hazardous materials in
rail cars, rail tank cars, rail freight containers, marine vessels or
marine freight containers.'' Contra Costa states that ``Chapter 6.95
requires that storage of hazardous materials in these types of
containers for longer than 30 days be reported to the local
administering agency, along with the other requirements of the business
plan. These requirements are not onerous or unreasonable and are
necessary for local emergency response planning.''
Congressman Miller and 24 California State legislators believe
preemption of the CHSC requirements will deprive communities of
accident prevention measures and emergency response planning.
(4) Analysis. The crux of SPCMA's contention regarding Sec. 25503.7
is that it prohibits consignee storage of hazardous materials ``at
places where and at times when such storage is permitted by [Federal
hazmat law] and regulations thereunder.'' SPCMA asserts that HMR Parts
174 and 177 authorize consignee storage incidental to transportation
and, thus, concludes that Sec. 25503.7 is an obstacle to accomplishing
and carrying out Federal hazmat law. However, SPCMA presents no
evidence that Sec. 25503.7, as applied and enforced, actually prohibits
storage incidental to transportation.
Section 25503.7, on its face, does not prohibit storage of
hazardous materials. It simply requires a facility that stores or plans
to store hazardous materials in a rail car, rail tank car, rail freight
container, marine vessel, or marine freight container for a period
greater than 30 days to comply with the requirements of Chapter 6.95.
Also, it requires that the facility give notice to the local
administering agency. Both Contra Costa and California OES state that
Sec. 25503.7 does not prohibit storage, but simply requires facilities
to comply with Chapter 6.95 requirements when [[Page 8783]] they engage
in storage of hazardous materials, as defined by that section.
Furthermore, SPCMA's reliance on HMR Parts 174 and 177 is
incorrect. Part 177 of the HMR, which applies to transportation by
public highway, is inapplicable to the regulation of rail
transportation. Section 174.204(a)(2), which SPCMA relies on to support
the proposition that the HMR authorize a consignee to store hazardous
materials in tank cars, is equally inapplicable to the situation at
issue. Section 174.204 sets forth duties and responsibilities with
respect to the delivery and unloading of gases that are in
transportation in commerce.
3. Ruling. Based on the above, Federal hazmat law does not preempt
Sec. 25501.3 to the extent that it makes handlers of hazardous
materials subject to emergency response planning and accident
prevention requirements that are within the scope of SARA Title III and
Sec. 112(r) of the CAA Amendments. There is insufficient information in
the record to determine whether Federal hazmat law preempts
Sec. 25503.7.
Although SPCMA requests that RSPA review the remaining 63
provisions of the CHSC in the event that RSPA does not preempt
Sec. 25501.3 and Sec. 25503.7, this ruling does not address those
provisions. There is no information in the record regarding how these
provisions are actually applied and enforced or how SPCMA members are
affected by these provisions.
B. PD-9(R) (Docket PDA-7(R))
Los Angeles County, California Requirements Applicable to the
Transportation and Handling of Hazardous Materials on Private Property
Applicant: HASA, Inc.
Local Laws Affected:
Los Angeles County Code (LACoC), Title 2:
Sec. 2.20.140
Sec. 2.20.150
Sec. 2.20.160
Sec. 2.20.170
Title 32 LACoC:
Sec. 4.108.c.7
Table 4.108-A
Sec. 79.809(b), (c) and (f)
Sec. 80.101(a) exception 1
Sec. 80.101(b)
Sec. 80.103(a)
Sec. 80.103(b)(1)
Sec. 80.103(b)(2)
Sec. 80.103(c), (d) and (e)
Sec. 80.201
Sec. 80.202(a) and (b)
Sec. 80.203
Appendix VI-A
Sec. 80.301(a)(2)
Sec. 80.301(b)(1)
Sec. 80.402(b)(3)(G)(i)
Sec. 80.402(c)(8)(A)
Summary: Federal hazardous material transportation law (Federal
hazmat law), 49 U.S.C. 5101-5127, preempts the following provisions of
LACoC Titles 2 and 32:
(1) Title 2 LACoC Secs. 2.20.140, 2.20.150, 2.20.160, and 2.20.170,
to the extent that those provisions levy a fee on tank car unloading
activities. The fees collected under those provisions are not used for
purposes related to hazardous materials transportation;
(2) Title 32 LACoC Sec. 79.809(f) as applied and enforced by Los
Angeles County. Los Angeles County fails to recognize a Department of
Transportation (DOT) exemption that authorizes HASA, Inc. to employ
alternative methods of compliance with certain Federal tank car
unloading requirements; and
(3) Title 32 LACoC Sec. 79.809(c), which prohibits a tank car from
remaining on a siding at point of delivery for more than 24 hours while
connected for transfer operations, unless otherwise approved by the
fire chief. The unloading restriction is not substantively the same as
Federal tank car unloading requirements applicable to a tank car
connected for transfer operations.
Based on a lack of information in the record, the Research and
Special Programs Administration (RSPA) is unable to determine whether
Federal hazmat law preempts LACoC Title 32, Secs. 80.103(e),
80.301(b)(1), 80.402(b)(3)(G)(i) and 80.402(c)(8)(A).
Federal hazmat law does not preempt the following provisions of
LACoC Title 32: Sec. 4.108.c.7, Table 4.108-A, Sec. 79.809(b),
Sec. 80.101(a) exception 1, Sec. 80.101(b), Sec. 80.103(a),
Sec. 80.103(b)(1), Sec. 80.103(b)(2), Sec. 80.103(c), Sec. 80.103(d),
Sec. 80.201, Secs. 80.202(a) and (b), Sec. 80.203, Appendix VI-A, and
Sec. 80.301(a)(2).
1. Application for Preemption Determination
HASA states that transportation of liquefied chlorine at its
facility, including loading, unloading, and storage incidental thereto,
is in accordance with: (1) Federal hazmat law; (2) HMR Part 174 (49 CFR
Part 174); (3) the Chlorine Manual and related pamphlets published by
the Chlorine Institute, Inc.; and (4) DOT Exemption E-10552, issued by
RSPA. Nevertheless, HASA states that ``[o]ver the past year, HASA has
been inspected numerous times by the county fire department and, as a
result of these inspections, subsequently ordered to comply with the
regulation[s] contained in the county fire code with respect to 'on-
site transportation' of hazardous materials.'' HASA states that it is
the ``clear intent'' of Title 32 to regulate the on-site transportation
of compressed gases.
HASA explains that its application for an administrative
determination is ``specific to the transportation, including loading,
unloading, and storage incidental thereto, of liquefied chlorine in
railroad tank cars at the Santa Clarita, California manufacturing
facility of HASA, Inc.'' HASA requests a determination that:
(1) Regulation of the transportation of chlorine in railroad
tank cars, including loading, unloading, and storage incidental
thereto at [its] facility in Santa Clarita, California, is exclusive
to the Federal government pursuant to the [Federal hazmat law] and
regulation[s] thereunder;
(2) The term ``transportation,'' as defined [by Federal hazmat
law], includes both ``on-site'' and ``off-site'' transportation of
hazardous materials in commerce, including loading, unloading, and
storage incidental thereto; and
(3) [The Los Angeles County regulations at issue] are preempted
by [Federal hazmat law] and regulations promulgated thereunder with
respect to both ``off-site'' and ``on-site'' transportation of
chlorine in railroad tank cars, including loading, unloading, and
storage incidental thereto.
In response to RSPA's January 26, 1993, Public Notice and
Invitation to Comment, 58 FR 6176, which set forth the text of HASA's
application, comments were submitted by the Chemical Waste
Transportation Institute (CWTI), the Orange County Fire Department, the
California Fire Chiefs' Association, the Chlorine Institute, Inc., the
Los Angeles County District Attorney's Office, the County of Los
Angeles Fire Department, and the County of Santa Barbara Environmental
Health Services Department. Rebuttal comments were submitted by HASA
and the Chlorine Institute, Inc.
In response to RSPA's October 14, 1993, Public Notice re-opening
the comment period in Docket PDA-7(R), comments were submitted by HASA
and the County of Los Angeles Fire Department.
2. Discussion
a. Fees. (1) LACoC Requirements. HASA challenges the following
provisions of LACoC Title 2:
Sec. 2.20.140 requires that every handler of hazardous materials
pay an annual fee for the administration and enforcement of the
provisions of California Health and Safety Code (CHSC) Chapter 6.95
(commencing with Sec. 25500). Fees range from $110 annually for a minor
handler of hazardous materials to $2,650 annually for a major handler
of large volumes of hazardous materials. [[Page 8784]]
Sec. 2.20.150 requires every handler of acutely hazardous materials
(AHM) to pay an additional annual fee to the county for the
administration and enforcement of AHM registration, risk assessment,
and risk mitigation. The fee is calculated according to a formula set
forth in Sec. 2.20.150.
Sec. 2.20.160 imposes a late submission fee on: (1) handlers of
hazardous materials for failure to file the required hazardous
materials business plan or inventory documents on a timely basis; and
(2) handlers of AHM for failure to submit the required AHM registration
documents on a timely basis.
Sec. 2.20.170 sets out the formula for calculating annual
adjustments to the schedule of fees contained in Sec. 2.20.140 through
Sec. 2.20.160.
(2) HASA's Arguments and Summary of Comments
HASA states that Secs. 2.20.140, 2.20.150, 2.20.160, and 2.20.170
establish fees applicable to ``handlers'' of hazardous materials. HASA
notes that Sec. 2.20.100(E) defines ``handler'' to mean ``any business
which handles a hazardous material or acutely hazardous material.''
HASA asserts that ``handling'' is a transportation-related activity
that is regulated under Federal hazmat law and the HMR.
HASA indicates that fees paid by handlers of hazardous materials to
the County of Los Angeles are used for the administration and
enforcement of CHSC Chapter 6.95. HASA further states that the
requirements under Chapter 6.95 (e.g., the preparation of hazardous
materials business plans, inventories and risk management and
prevention programs (RMPPs)) are not related to the transportation of
hazardous materials. HASA concludes that Federal hazmat law preempts
the collection of fees by Los Angeles County because the fees are not
used for purposes relating to the transportation of hazardous material.
The California Fire Chiefs' Association, the Los Angeles County
District Attorney's Office and the County of Los Angeles Fire
Department all acknowledge that the fees collected under LACoC Title 2
are used to cover the cost of administering CHSC Chapter 6.95. The
County of Los Angeles Fire Department states that Sec. 25513 and
Sec. 25535.2 of Chapter 6.95 give the local agencies that administer
Chapter 6.95 the authority to assess and collect fees in order to
recover ``the cost to administer both the Risk Management and
Prevention Program and the Hazardous Materials Release Response Plans
and Inventory Program.''
(3) Analysis
Federal hazmat law provides that:
A State, political subdivision of a State, or Indian tribe may
impose a fee related to transporting hazardous material only if the
fee is fair and used for a purpose related to transporting hazardous
material, including enforcement and planning, developing, and
maintaining a capability for emergency response.
49 U.S.C. 5125(g) (emphasis added). Consequently, fees levied in
connection with the transportation of hazardous materials must be
equitable and used for a purpose related to the transportation of
hazardous materials.
LACoC Secs. 2.20.140, 2.20.150, 2.20.160, and 2.20.170 establish
fees applicable to ``handlers'' of hazardous materials. Section
2.20.100(E) defines ``handler'' to mean ``any business which handles a
hazardous material or acutely hazardous material.'' ``Handle,'' as
defined at Sec. 2.20.100(D), means--
To use, generate, process, produce, package, treat, store, emit,
discharge, or dispose of a hazardous or acutely hazardous material
in any fashion and includes the use or potential use of a quantity
of hazardous or acutely hazardous material by the connection of any
marine vessel, tank vehicle, tank car or container to a system or
process for any of the above purposes or activities.
The County definition of ``handle'' under 2.20.100(D) includes a
number of activities that are not regulated by Federal hazmat law and
the HMR because they are outside the scope of transportation in
commerce, i.e., the use, generation, processing, production, treatment,
emission, discharge, and disposal of hazardous materials. The
definition of ``handle'' also includes activities, i.e., packaging and
storage, that are regulated by Federal hazmat law and the HMR only in
certain instances. Specifically, the HMR apply to hazardous materials
storage that is incidental to transportation in commerce, and the
packaging of hazardous materials for transportation in commerce. The
HMR do not apply to storage that is not incidental to transportation in
commerce, or packaging of hazardous materials for purposes other than
transportation in commerce. HASA does not assert, and the record does
not reflect, that the term ``store,'' as used in Sec. 2.20.100(D),
includes storage that is incidental to transportation in commerce, or
that the term ``package'' as used in Sec. 2.20.100(D) includes the
packaging of hazardous materials for transportation in commerce.
Consequently, for purposes of this decision, RSPA assumes that the
terms refer to activities that are not subject to the requirements of
Federal hazmat law and the HMR.
The definition of ``handle'' also includes the use or potential use
of hazardous materials by the connection of a railroad tank car to a
system or process. Tank car unloading is regulated under the HMR as
incidental to transportation in commerce. 49 CFR 174.67. Consequently,
any fee levied for unloading activities must be fair and used for a
purpose related to transporting hazardous material.
There is no assertion in the record that the fees are unfair.
Furthermore, the participants in this proceeding agree that the fees
are used to administer Chapter 6.95, which primarily concerns emergency
response planning for hazardous materials no longer in transportation
in commerce. Accordingly, the fees collected from facilities that
engage in tank car unloading are not being used for ``a purpose related
to transporting hazardous material.'' Therefore, 49 U.S.C. 5125(g)
preempts Secs. 2.20.140, 2.20.150, 2.20.160 and 2.20.170 to the extent
that those provisions levy a fee on facilities for tank car unloading
activities. To the extent that they levy a fee for non-transportation
activities, they are not preempted.
b. Permits. (1) LACoC Requirements. HASA challenges the following
provisions of LACoC Title 32:
Sec. 4.108.c.7 and Table 4.108-A require a permit from the Bureau
of Fire Prevention prior to engaging in the storage, on-site
transportation, dispensing, use, or handling, at normal temperatures
and pressures, of a compressed gas in excess of amounts specified in
Table 4.108-A.
Sec. 80.103(a) states that the permit requirement in Sec. 4.108.c.7
applies to any person, firm or corporation that stores, dispenses, uses
or handles hazardous material in excess of quantities specified in
Sec. 4.108.
Sec. 80.103(b)(1) requires that each permit application include a
Hazardous Materials Business Plan (HMBP) that meets the requirements
contained in LACoC Title 2, Chapter 2.20, Part 2. Title 2,
Sec. 2.20.130 requires the applicant to follow the requirements of CHSC
Chapter 6.95 when preparing an HMBP.
Sec. 80.103(b)(2) states that, with respect to HMBPs, every
business shall comply with the reporting requirements in LACoC Title 2,
Chapter 2.20, Part 2.
Sec. 80.103(c) states that each application for a permit shall
include a hazardous materials inventory statement (HMIS) in accordance
with LACoC Title 2, Chapter 2.20, Part 2. Section 2.20.130 of Title 2,
Chapter 2.20, Part 2 requires the applicant to follow the requirements
of CHSC Chapter 6.95 when preparing an HMIS. [[Page 8785]]
Sec. 80.103(d), entitled ``Risk Management and Prevention
Program,'' (RMPP) requires that every business comply with the
requirements of LACoC Title 2, Chapter 2.20, Part 2.
Sec. 80.103(e) states that HMBPs, RMPPs and HMISs shall be posted
in an approved location and immediately available to emergency
responders. Further, the fire chief may require that the information be
posted at the entrance to the occupancy or property.
(2) HASA's Arguments and Summary of Comments
HASA states that Sec. 4.108.c.7 and Sec. 80.103(a) require any
facility that stores, dispenses, uses or handles compressed gas in
excess of quantities specified in Table 4.108-A to obtain a permit from
the Bureau of Fire Prevention prior to engaging in the on-site storage,
transportation, dispensing, use or handling of compressed gas in
railroad tank cars.
HASA indicates that Sec. 80.103(b) and Sec. 80.103(c) require that
each permit application include an HMBP and HMIS that meet the
requirements contained in LACoC Title 2, Chapter 2.20, Part 2. Section
80.103(d) requires that, with respect to RMPPs, every business comply
with the requirements of LACoC Title 2, Chapter 2.20, Part 2. LACoC
Title 2, Chapter 2.20, Part 2 implements the administration and
enforcement of CHSC Chapter 6.95, Articles 1 and 2. Permit applicants
under the LACoC, therefore, must follow the requirements of CHSC
Chapter 6.95 when preparing an HMBP, HMIS and RMPP. HASA asserts that--
Requirements contained in Chapter 6.95 of the [CHSC] provide
inter alia for written notification, recording, and reporting of the
unintentional release of hazardous materials. These requirements are
preempted [as covered subjects].
HASA asserts that ``there is no assurance that a permit for `on-
site transportation' will be issued or that it will not be revoked for
reasons unrelated to the transportation of hazardous materials.
Business plans and risk management plans are not only subject to
approval by the administering agencies, but such approval is subject to
unspecified delays.''
HASA believes that the LACoC requirement that a facility obtain a
permit prior to engaging in the on-site storage, transportation,
dispensing, use or handling of compressed gas is preempted because: (1)
it applies to ``handling,'' which is a covered subject, and the
requirement is not substantively the same as Federal regulations; (2)
it applies to the ``on-site'' transportation of hazardous materials
and, consequently, is an obstacle to accomplishing and carrying out
Federal hazmat law and the HMR; and (3) it requires permit applicants
to comply with the written notification, recording and reporting
requirements pertaining to unintentional releases of hazardous
materials contained in CHSC Chapter 6.95, as implemented by LACoC
Titles 2 and 32, which HASA believes are preempted as covered subjects.
In support of its position, HASA states that similar permit
requirements have been found to be inconsistent with Federal hazmat law
and the HMR, citing IR-28, City of San Jose, California; Restrictions
on Storage of Hazardous Materials, 55 FR 8884 (Mar. 8, 1990), and
Southern Pacific Transp. Co. v. Public Service Comm'n of Nevada, 909
F.2d 352 (9th Cir. 1990).
HASA does not discuss how Sec. 80.103(e), which requires that
HMBPs, RMPPs and HMISs be posted in an approved location and
immediately available to emergency responders, conflicts with the
Federal hazmat law or the HMR.
The Chlorine Institute, Inc. believes that Federal hazmat law
preempts the LACoC permit requirements. It states that ``the permit
requirement under section 4.108.c.7 of the [LACoC] is restrictive in
that it requires an application, inspection and permit prior to
unloading certain quantities of hazardous materials on private property
regardless of whether the activity is in compliance with DOT regulation
* * *. The permit process and requirements are not consistent with
[Federal hazmat law] and DOT regulations.''
The Los Angeles County District Attorney's Office and the County of
Los Angeles Fire Department both oppose preemption of the permit
requirements, stating that the requirements are not an obstacle to
accomplishing and carrying out Federal hazmat law and the HMR.
(3) Analysis
Permit requirements do not fall within any of the five covered
subject areas enumerated in 49 U.S.C. 5125, described above in the
General Preamble. They also do not, per se, make it impossible to
comply with Federal hazmat law or HMR requirements, or create an
obstacle to accomplishing and carrying out Federal hazmat law or the
HMR. Whether or not a permit requirement is preempted depends on the
steps required to obtain the permit. See IR-28, 55 FR 8884 (Mar. 8,
1990); IR-20, 52 FR 24396 (June 30, 1987); IR-3 (Appeal), 47 FR 18457
(Apr. 29, 1982); IR-2, 44 FR 75566 (Dec. 20, 1979); New Hampshire Motor
Transport Ass'n v. Flynn, 751 F.2d 43 (1st Cir. 1984); Colorado Public
Utilities Comm'n v. Harmon, CV 88-Z-1524 (D. Colo. 1989), rev'd on
other grounds, 951 F.2d 1571 (10th Cir. 1991).
First, HASA asserts that Los Angeles County's regulation of
``handling,'' through the permit process, is preempted because handling
is one of the five covered subject areas established under 49 U.S.C.
5125. The LACoC permit requirements are Los Angeles County's response
to the mandate in CHSC Sec. 25502 that ``every county shall implement
this chapter as to the handling of hazardous materials in the county.''
The LACoC requires chemical manufacturers to obtain a permit ``prior to
engaging in the storage, on-site transportation, dispensing, use or
handling, at normal temperatures and pressures, of a compressed gas in
excess of specified amounts.'' As part of the permit process under
LACoC Title 32, facilities that handle hazardous materials must submit,
to the County, an HMBP, HMIS and RMPP that meet the reporting
requirements in LACoC Title 2. Title 2, Sec. 2.20.130 requires that
these documents be prepared in accordance with the requirements set
forth in CHSC Chapter 6.95.
As discussed above in PD-8(R), Federal hazmat law does not preempt
Chapter 6.95 requirements applicable to the handling of hazardous
materials because they are otherwise authorized by Federal law, Title
III of the Superfund Amendments and Reauthorization Act (SARA Title
III), 42 U.S.C. Secs. 11001 et seq., and Sec. 112(r) of the Clean Air
Act Amendments of 1990 (CAA Amendments), 42 U.S.C. 7412(r). As a
result, the LACoC permit program, which implements the CHSC handling
requirements, is not preempted because its underlying substantive
requirements are ``otherwise authorized'' by SARA Title III and
Sec. 112(r) of the CAA Amendments.
Second, HASA asserts that Los Angeles County's permit requirements
are preempted because they apply to the on-site transportation of
hazardous materials at HASA's facility and, therefore, present an
obstacle to accomplishing and carrying out Federal hazmat law.
Transportation that takes place entirely on private property is not
transportation ``in commerce.'' Federal hazmat law and the HMR do not
apply to a consignee's transportation of hazardous materials solely
within the gates of a private manufacturing facility. To the extent
that the permit requirements under the LACoC provide that HASA must
obtain a permit prior to transporting hazardous materials within its
facility, the requirements do not apply to transportation in commerce
[[Page 8786]] and are not preempted by Federal hazmat law. The holdings
in Southern Pacific Transp. Co. v. Public Service Comm'n of Nevada and
IR-28, which HASA relies on to support its argument in favor of
preemption, are inapposite to the facts in this case. The holdings are
based on local regulation of common carriers engaged in the
transportation of hazardous materials in commerce.
Finally, HASA asserts that permit applicants must comply with the
reporting requirements of LACoC Title 2, Chapter 2.20, Part 2 and, by
reference therein, CHSC Chapter 6.95, Articles 1 and 2. HASA asserts
that Chapter 6.95 requirements include written notification, recording,
and reporting of the unintentional release of hazardous materials. HASA
argues that the written notification, recording and reporting
requirements are preempted as covered subjects. HASA believes that the
permit requirements are preempted to the extent they mandate compliance
with Chapter 6.95 requirements regarding the reporting of unintentional
releases of hazardous materials.
HASA is correct that Federal hazmat law preempts any State or local
requirement dealing with the ``written notification, recording, and
reporting of the unintentional release in transportation of hazardous
material,'' unless the requirement is substantively the same as the
Federal requirement or otherwise authorized by Federal law. 49 U.S.C.
5125(b)(1)(D) (emphasis added). However, HASA fails to identify in its
application the sections of Chapter 6.95 that it believes are
preempted, or even to set forth the text of those sections for RSPA's
review and consideration. Consequently, RSPA cannot determine whether
the permit requirements under the LACoC are preempted to the extent
that they require compliance with unidentified provisions of LACoC
Title 2, Chapter 2.20, Part 2 and, by reference therein, CHSC Chapter
6.95.
Nowhere does the record reflect that a permit actually is required
in order for a facility to engage in storage, dispensing, use or
handling of hazardous materials in excess of threshold quantities. In
fact, HASA admits that it is not in compliance with LACoC requirements
it believes are preempted, and information in the record seems to
indicate that HASA has operated without a Sec. 4.108.c.7 permit for
extended periods of time. To the extent that Los Angeles County has
taken enforcement action against HASA, it appears that it has done so
in an effort to persuade HASA to comply with the substantive permit
application requirements (e.g., the hazardous materials inventory
requirement). Consequently, to the extent that the Bureau of Fire
Prevention has the authority to issue permits, that authority does not
appear to have been enforced and applied to prevent facilities from
storing and handling hazardous materials incidental to transportation.
Therefore, the permit requirement does not violate the ``obstacle''
standard.
For the reasons stated above, Federal hazmat law does not preempt
the following sections of LACoC Title 32: Sec. 4.108.c.7, Table 4.108-
A, Sec. 80.103(a), Sec. 80.103(b)(1), Sec. 80.103(b)(2), and
Secs. 80.103 (c) and (d). There is insufficient information in the
record to determine whether Federal hazmat law preempts LACoC
Sec. 80.103(e).
c. Hazard Classification. (1) LACoC Requirements. HASA challenges
the following provisions of LACoC Title 32:
Sec. 80.101(a) exception 1 exempts the off-site transportation of
hazardous materials from the classification system set forth in LACoC
Article 80, if the transportation is in conformance with the HMR.
Sec. 80.101(b) states that the classification system referenced at
Secs. 80.202 and 80.203 applies to all hazardous materials, including
those materials regulated elsewhere in the LACoC.
Sec. 80.201 requires that hazardous materials be divided into
hazard categories. The categories include materials regulated under
LACoC Article 80 and materials regulated elsewhere in the LACoC.
Sec. 80.202(a) classifies certain materials as physical hazards,
including compressed gases, flammable liquids and combustible liquids.
A material with a primary classification of ``physical hazard'' also
can present a health hazard (as set forth below at Sec. 80.202(b)).
Chlorine is listed, in Appendix VI-A to Title 32, as a toxic compressed
gas that constitutes a physical hazard.
Sec. 80.202(b) classifies certain materials as health hazards,
including highly toxic or toxic materials. A material with a primary
classification of ``health hazard'' also can present a physical hazard.
Chlorine is listed, in Appendix VI-A to Title 32, as an example of a
toxic compressed gas that constitutes a health hazard.
Sec. 80.203 states that descriptions and examples of materials
included in hazard categories are contained in Appendix VI-A to Title
32.
Appendix VI-A contains information, explanations and examples to
illustrate and clarify the hazard categories contained in Division II
of Article 80. The hazard categories are based on Occupational Safety
and Health Administration (OSHA) standards set forth in the Code of
Federal Regulations, Title 29. Where numerical classifications are
included, they are in accordance with nationally recognized standards.
(2) HASA's Arguments and Summary of Comments. HASA states that the
classification system in the LACoC is different from and in addition to
the hazardous materials classification system under Federal hazmat law
and the HMR and, therefore, should be preempted as relating to a
covered subject under 49 U.S.C. 5125(b)(1). HASA indicates that the
classification system under the LACoC only applies to a facility's on-
site transportation of hazardous materials, and not to off-site
transportation of hazardous materials conducted pursuant to the HMR.
HASA provides several examples of how the LACoC classification system
differs from that under the HMR.
The Chlorine Institute, Inc. urges preemption of the LACoC
classification system. It states that the classification requirements
``define categories of hazardous materials that are not consistent with
the DOT regulations shown in 49 CFR 173.2 * * *. Compliance with [both
the LACoC and the HMR] would necessitate dual compliance for personnel
handling and unloading a chlorine tank car on private property. The
situation creates confusion and leads to errors in judgment.''
CWTI believes that the classification system used under the LACoC
is not preempted because it is otherwise authorized by Federal law,
specifically the Occupational Safety and Health Act of 1970 (OSH Act),
29 U.S.C. 651 et seq. CWTI states:
In order to protect employees from the effects of hazardous
chemicals in the workplace, OSHA implemented the hazardous
communication standard (HCS) which requires employers to develop and
implement a written hazard communication program, including lists of
hazardous chemicals present, labeling of containers of chemicals in
the workplace as well as of containers of chemicals being shipped to
other workplaces that does not conflict with the HMTA, preparation
and distribution of [Material Safety Data Sheets], and development
and implementation of employee training programs regarding the
hazards of chemicals and protective measures. (See 29 CFR
1910.1200.) The hazardous materials classifications, `physical
hazards' and `health hazards' referenced by HASA as required by the
County are terms of classification used under the HCS. (See LA
County Code 80.202 and 29 CFR 1910.1200(c)). Section 18 of the OSH
Act provides that no state or political subdivision of a state may
adopt or enforce * * * any requirements relating to the issue
addressed [[Page 8787]] by the HCS, except pursuant to a federally-
approved state plan. California is a federally-approved state.
CWTI also notes that Congress, during passage of the 1990
amendments to the HMTA, recognized the authority of OSHA to regulate
the storage of hazardous materials at consignee locations.
Specifically, CWTI asserts that Congress directed OSHA, under authority
of the OSH Act, to issue regulations requiring the retention of HMR
markings, placards, and labels, and any other information as may be
required by the HMR, on a package, container, motor vehicle, rail
freight car, aircraft, or vessel until the hazardous materials have
been removed. See P.L. 101-615, Sec. 29, 104 Stat. 3277.
The County of Los Angeles Fire Department opposes preemption of the
LACoC classification requirement, stating that the classification
system required under Sec. 80.201 is based on the OSHA classification
system at Title 29 CFR.
(3) Analysis. The classification of hazardous materials for
purposes of transportation in commerce is exclusive to the Federal
Government. See 49 U.S.C. 5125(b)(1)(A). Federal hazmat law preempts
State, local and Indian tribe requirements that are not substantively
the same as the Federal classification requirements, or not otherwise
authorized by Federal law. Id.
The Department of Transportation has an exclusive role in defining
hazard classes for materials that are offered or transported in
commerce. The HMR classification system is used to determine the type
of packagings that must be used to transport hazardous materials in
commerce, and the applicable placarding, labeling and marking
requirements necessary for that transportation. The HMR classification
of hazardous materials does not apply to materials that are not in
transportation in commerce. The movement of hazardous materials by a
consignee exclusively on private property, for purposes related to a
manufacturing process, is not transportation in commerce under Federal
hazmat law.
Section 80.101(a) exception 1 states that off-site hazardous
materials transportation in accordance with DOT requirements is
excepted from the requirements of LACoC Article 80 (which includes the
classification system under Sec. 80.201, Sec. 80.202, Sec. 80.203 and
Appendix VI-A). HASA does not dispute that the LACoC classification
system applies only to HASA's on-site transportation of hazardous
materials. Consequently, Federal hazmat law does not preempt the LACoC
classification requirements, as they pertain to the on-site
transportation of hazardous materials exclusively within a chemical
manufacturing facility, because the LACoC requirements do not apply to
hazardous materials that are in transportation in commerce.
d. Storage. (1) LACoC Requirement. HASA challenges the following
provision of LACoC Title 32:
Sec. 80.301(a)(2) prohibits the use of tank vehicles and railroad
tank cars as storage tanks.
(2) HASA's Arguments and Summary of Comments.
Section 80.301(a)(2) states that tank vehicles and railroad tank
cars shall not be used as storage tanks. HASA argues that neither
Federal hazmat law nor the HMR ``prohibit storage--incidental to
transportation or otherwise--of hazardous materials in either tank
vehicles or in tank cars.'' HASA states that 49 CFR 174.204(a)(2)
specifically permits storage of specified gases on both private and
carrier track. HASA notes that Sec. 174.204(a)(2) states, in part,
``such cars may be stored on private track * * * or on carrier tracks
designated by the carrier for such storage.'' HASA believes that the
LACoC's prohibition of storage in tank vehicles and railroad tank cars
is an obstacle to accomplishing and carrying out Federal hazmat law and
the HMR, and should be preempted.
No commenter addressed this issue specifically.
(3) Analysis. HASA states that it receives railroad tank cars
containing liquefied chlorine from manufacturers engaged in interstate
commerce. HASA unloads the tank cars on a private siding adjacent to
its facility. HASA asserts that Sec. 80.301(a)(2) prohibits it from
storing hazardous material, for use in its manufacturing process, in
the tank cars in which the material arrives at HASA's facility. There
is no indication in the record that HASA stores hazardous materials in
cargo tank motor vehicles, and there is no information in the record
regarding how this requirement is applied and enforced when hazardous
materials are stored in cargo tank motor vehicles.
Federal hazmat law and the HMR apply to hazardous materials that
are in transportation in commerce, and loading, unloading and storage
that is incidental to that transportation. Federal hazmat law and the
HMR do not apply to storage activities not incidental to
transportation, such as storage activities at consignees' facilities.
See IR-28, 55 FR 8884 (Mar. 8, 1990). As a result, hazardous materials
that are stored at a manufacturing facility awaiting consumption in the
manufacturing process are not stored incidental to transportation in
commerce, and are beyond the reach of Federal hazmat law. Federal
hazmat law, therefore, does not prevent Los Angeles County from
prohibiting the use of tank cars for storage purposes, where that
storage is not incidental to transportation in commerce.
Section Sec. 174.204(a)(2) of the HMR, which HASA relies on to
support the proposition that the HMR authorize a consignee to store
hazardous materials in tank cars, is inapplicable to the situation at
issue. Section 174.204 sets forth duties and responsibilities with
respect to the delivery and unloading of gases that are in
transportation in commerce.
Thus, Federal hazmat law does not preempt Sec. 80.301(a)(2).
e. Unloading. (1) LACoC Requirements. HASA challenges the following
provisions of LACoC Title 32:
Sec. 80.301(a)(2) requires that containers, cylinders and tanks
containing hazardous materials be unloaded in accordance with the
requirements for flammable and combustible liquids at Sec. 79.809.
Sec. 79.809(b) states that flammable and combustible liquids may be
transferred from a tank car only into an approved atmospheric tank or
approved portable tank.
Sec. 79.809(c) states that, unless otherwise approved by the fire
chief, a tank car may not remain on a siding at point of delivery for
more than 24 hours while connected for transfer operations.
Sec. 79.809(f) states that the operator or other competent person
must be in attendance at all times while a tank car is discharging
cargo.
Sec. 80.402(c)(8)(A) states that when tank cars regulated by DOT
are used outdoors, gas cabinets or a locally exhausted enclosure must
be provided. Installation and design must be in accordance with the
requirements of Title 32.
Sec. 80.402(b)(3)(G)(i) states that when portable or stationary
tanks are ``utilized in use or dispensing,'' they must be within a
ventilated separate gas storage room or placed within an exhausted
enclosure.
(2) HASA's Arguments and Summary of Comments. Section 79.809
addresses unloading operations for flammable and combustible liquids.
Section 80.301(a)(2) makes the unloading requirements in Sec. 79.809
applicable to the unloading of railroad tank cars containing hazardous
materials regulated under Title 32. HASA states that ``many of the
requirements in Sec. 79.809 are not only inappropriate but unsafe for
unloading compressed and [[Page 8788]] liquefied gases, including
chlorine.'' HASA offers, as examples, the requirements to transfer
flammable and combustible materials only to an approved atmospheric
tank or approved portable tank (Sec. 79.809(b)), the prohibition
against remaining on a siding for more than 24 hours while connected
for unloading operations (Sec. 70.809(c)), and the tank car unloading
attendance requirement (Sec. 79.809(f)).
HASA states that liquefied and nonliquefied compressed gases cannot
be unloaded into a tank ``open to the atmosphere'' because they will no
longer be contained or compressed. HASA, therefore, believes that this
LACoC requirement conflicts with Federal hazmat law and the HMR and
should be preempted.
HASA further explains that liquefied gases, including chlorine, are
unloaded ``under their own vapor pressure, at a finite rate,'' to
prevent the liquefied gas remaining in the tank car from freezing as
heat is withdrawn by gas vaporization. HASA maintains that liquefied
chlorine gas has a normal unloading rate of 3,600 to 7,200 pounds per
hour. HASA concludes that it takes between 25 and 50 hours to unload
each tank car containing 90 tons of liquefied chlorine. As a result,
HASA believes that the 24-hour time limit on unloading conflicts with
Federal hazmat law and the HMR and should be preempted.
HASA notes that 49 CFR 174.67 (i) and (j) pertain to tank car
unloading. HASA applied for, and obtained from RSPA, an exemption (E-
10552) from the requirements in 174.67 (i) and (j), including the
requirement that a person physically attend a tank car while cargo is
discharged. HASA states that the local attendance requirement at
Sec. 79.809(f) is similar to the Federal attendance requirement set out
at 49 CFR 174.67(i). Nevertheless, HASA asserts that Los Angeles County
refuses to recognize that HASA's exemption from Federal attendance
requirements prevents the County from enforcing the local attendance
requirement. Consequently, HASA asserts that Sec. 79.809(f) conflicts
with E-10552 and should be preempted.
HASA further requests a preemption determination regarding
Sec. 80.402(b)(3)(G)(i) and Sec. 80.402(c)(8)(A), which it states
require secondary containment for the ``use'' of railroad tank cars
which contain highly toxic or toxic compressed gases. HASA states that
``use'' is defined at LACoC Sec. 9.123 as ``the placing in action or
making available for service by opening or connecting anything utilized
for confinement of material whether a solid, liquid or gas.'' HASA
contends that this definition of the term ``use'' encompasses the
unloading of tank cars. HASA, therefore, alleges that tank car
unloading must take place in accordance with Sec. 80.402(b)(3)(G)(i)
and Sec. 80.402(c)(8)(A). HASA believes these requirements conflict
with unloading requirements under Federal hazmat law and the HMR, and
should be preempted.
In summary, HASA asks RSPA to compare several aspects of the LACoC
unloading requirements with (1) the general unloading requirements for
tank cars set out at 49 CFR 174.67; (2) the specific unloading
requirements for compressed gases in Title 49, Subpart F of the CFR (49
CFR 174.200-174.204, 174.208, 174.280, and 174.290); and (3) the
requirements in E-10522 with respect to chlorine.
The Chlorine Institute supports preemption of LACoC Secs. 79.809,
80.402(b)(3)(G)(i) and 80.402(c)(8)(A). It agrees with HASA's assertion
that several requirements under these provisions are obstacles to
accomplishing and carrying out HMR provisions regarding handling and
unloading of chlorine tank cars on private property. Specifically, the
Chlorine Institute supports preemption of: (1) the requirement that
unloading be to an approved atmospheric tank only; (2) the prohibition
against remaining on a siding for more than 24 hours while connected;
(3) the requirement that someone physically attend the unloading
process; and (4) the requirement for special unloading equipment. The
Chlorine Institute believes that these LACoC requirements conflict with
E-10552 and with 49 CFR 174.600, which it believes enable a tank car of
chlorine to be received at a private siding with no maximum holding
time.
The County of Orange Fire Department, the County of Los Angeles
Fire Department, and the California Fire Chiefs' Association do not
agree with HASA that Secs. 79.809, 80.402(b)(3)(G)(i) and
80.402(c)(8)(A) conflict with Federal hazmat law and the HMR.
Consequently, they oppose preemption of those provisions.
(3) Analysis. (a) Unloading to Storage Tanks. Section 80.301(a)(2)
makes the unloading requirements for flammable and combustible liquids
at Sec. 79.809(b) applicable to the unloading of tank cars containing
hazardous materials. Section 79.809(b), which pertains to unloading to
storage tanks, requires that flammable and combustible liquids be
transferred from a tank car only into an approved atmospheric tank or
approved portable tank. HASA states that it cannot comply with this
requirement when unloading liquefied and nonliquefied compressed gases
because those materials cannot be stored in a tank ``open to the
atmosphere.'' HASA, therefore, asks that RSPA preempt this LACoC
requirement. HASA does not indicate why storage in approved portable
tanks is not possible. Furthermore, there is no evidence in the record
that Los Angeles County has cited HASA for failure to comply with
Sec. 79.809(b) while unloading compressed gases.
Tank car unloading is not regulated under Section 79.809(b).
Section 79.809(b) dictates the type of storage tanks that may be used
when unloading a tank car. RSPA does not regulate consignee storage,
including the types of containers used to store hazardous materials
that are no longer in transportation in commerce. HASA's storage of
hazardous materials at its facility, for use in its manufacturing
process, is beyond the scope of Federal hazmat law and the HMR.
Consequently, Federal hazmat law does not preempt LACoC Sec. 79.809(b),
which applies to consignee storage.
(b) 24-Hour Time Limit. Section 79.809(c) states that ``unless
otherwise approved by the chief, a tank car shall not be allowed to
remain on a siding at point of delivery for more than 24 hours while
connected for transfer operations.'' HASA states that this restriction
on the amount of time a tank car may remain connected for transfer
operations should be preempted because there is no similar restriction
under Federal hazmat law or the HMR.
Certain consignee tank car unloading activities fall under the term
``handling,'' a covered subject. Unless substantively the same as
Federal regulation, or otherwise authorized by Federal law, non-Federal
regulation of a covered subject area is preempted. Section 174.67 of
the HMR applies to the mechanics of the tank car unloading process by
dictating unloading procedures to be followed prior to, during and
after unloading, e.g., brake requirements; posting of caution signs;
procedures for breaking seals and removing manhole covers; prohibition
against unloading connections remaining attached after unloading is
completed or discontinued; attendance requirements. Nowhere do the HMR
limit the amount of time a tank car may remain on a siding at point of
delivery while connected for transfer operations. The 24-hour time
restriction is not substantively the same as the Federal requirements
and, therefore, is preempted by Sec. 5125(b)(1)(B) of Federal hazmat
law, 49 U.S.C. 5125(b)(1)(B).
Local time restrictions, if properly crafted, may serve a
legitimate purpose. Under certain circumstances, however, time
restrictions may not promote [[Page 8789]] safety. For example, time
restrictions on tank car unloading may prompt a chemical manufacturing
facility to unload tank cars at higher pressures, at greater risk, in
order to expedite the unloading process. Also, facilities may be forced
to discontinue unloading a tank car and to disconnect the transfer
lines between the tank car and the storage receptacle, or manufacturing
process, simply to meet the local time restriction. This results in the
more frequent exposure of employees to product remaining in the
disconnected lines.
Consequently, a request for a waiver from preemption may be granted
if it can be shown that a local time restriction provides an equal or
greater level of protection to the public than the HMR, and does not
unreasonably burden commerce.
(c) Attendance. Section 79.809(f) requires that the operator or
another competent person attend a tank car at all times while the tank
car is discharging cargo. Tank car unloading is an aspect of
``handling,'' a covered subject. Nevertheless, Sec. 79.809(f) is
substantively the same as 49 CFR 174.67(i), which requires that a tank
car be attended throughout the entire unloading process and, therefore,
is not preempted except as it is applied and enforced.
A consignee that unloads tank cars containing hazardous materials
may obtain a DOT exemption from the Federal attendance requirement. The
DOT exemption allows the consignee to use an alternative monitoring
procedure. HASA holds such an exemption (E-10552). Specifically, E-
10552 permits HASA to use electronic surveillance to monitor tank car
unloading, under certain conditions and restrictions, in lieu of a
human observer at the unloading site.
Exemptions from Federal hazmat law and HMR requirements are issued
by the Associate Administrator for Hazardous Materials Safety pursuant
to 49 U.S.C. 5117 and 49 CFR 107.101-107.123. Exemptions may be issued
on a showing by the applicant that procedures it proposes to adopt will
achieve a level of safety that is at least equal to that specified in
the regulation from which the exemption is sought. See 49 U.S.C.
5117(a)(1)(A). If the regulations do not specify a level of safety, the
applicant must show that its proposed procedures will be consistent
with the public interest. See 49 U.S.C. 5117(a)(1)(B).
Exemption applications are published in the Federal Register, and
all interested parties, including States, localities and Indian tribes,
are invited to submit comments. Once issued, DOT exemptions are binding
on State, local and Indian tribe authorities, and on regulated
entities. See 49 CFR 171.2. To avoid conflict with Federal hazmat law
and the HMR, State, local and Indian tribe authorities must implicitly
or explicitly recognize a DOT exemption. See IR-31, 55 FR 25572 (June
21, 1990).
HASA claims that Los Angeles County fails to recognize that E-10552
exempts HASA not only from the Federal attendance requirements but also
from the local attendance requirements (which are substantively the
same as the Federal requirements). Los Angeles County's failure to
recognize a DOT exemption undermines the exemption authority granted to
the Secretary of Transportation under 49 U.S.C. 5117. Section 5117(A)
explicitly authorizes DOT to issue exemptions when the applicant can
demonstrate that it will transport or ship hazardous materials in a
manner that achieves a safety level at least equal to that required
under Federal hazmat law, or that the exemption is consistent with the
public interest.
Los Angeles County's continued enforcement of Sec. 79.809(f)
against HASA, in spite of the fact that HASA holds DOT exemption E-
10552, is an obstacle to accomplishing and carrying out Federal hazmat
law and the regulations issued thereunder. Consequently,
Sec. 5125(a)(2) of Federal hazmat law, 49 U.S.C. 5125(a)(2), preempts
LACoC Sec. 79.809(f) as it is applied and enforced. However, California
has incorporated the HMR by reference into its regulations (see, Title
13 California Code of Regulations, Division 2, Chapter 6). If Los
Angeles County finds at any time that HASA is not in compliance with
its DOT exemption, it can enforce the HMR and its own regulations.
(d) Ventilation. HASA asks that RSPA preempt
Sec. 80.402(b)(3)(G)(i) and Sec. 80.402(c)(8)(A) because they apply to
the unloading of hazardous materials in a manner that conflicts with
Federal hazmat law and the HMR. Specifically, these LACoC provisions
require the use of a gas cabinet or locally exhausted enclosure when a
tank car is unloaded outdoors, and the use of a ventilated separate gas
storage room or an exhausted enclosure when a portable or stationary
tank is unloaded indoors.
There is insufficient information in the record regarding how the
LACoC ventilation requirements are applied and enforced. RSPA,
therefore, is unable to determine whether the requirements are
preempted by Federal hazmat law.
f. Packaging Design and Construction. (1) LACoC Requirement. HASA
challenges the following provision of LACoC Title 32:
Sec. 80.301(b)(1) states that containers and tanks must be designed
and constructed in accordance with nationally recognized standards.
Title 32, Sec. 2.304(b) sets forth the national standards and
publications recognized under that title. The most recent edition of
Title 49 CFR Chapter 1 (which includes the HMR) is referenced.
(2) HASA's Arguments and Summary of Comments. HASA provides no
explanation or arguments regarding how Sec. 80.301(b)(1) is applied and
enforced, or why HASA believes that it should be preempted.
(3) Analysis. Section 80.301(b)(1), on its face, requires that
containers and tanks be designed and constructed in accordance with
nationally recognized standards. ``Nationally recognized standards'' is
defined at Title 32, Sec. 2.304(b) to include the most recent edition
of the HMR. There is no evidence in the record that design,
construction, and performance standards other than those contained in
the HMR are being applied and enforced under the LACoC, or that the
containers and tanks at issue are being used to transport hazardous
materials in commerce. Furthermore, LACoC Sec. 80.101(a) exception 1
exempts ``off-site hazardous materials transportation in accordance
with DOT requirements'' from the requirements of LACoC Article 80,
including Sec. 80.301(b)(1).
Thus, there is insufficient evidence in the record to determine
whether Federal hazmat law preempts Sec. 80.301(b)(1).
3. Ruling
Based on the above, Federal hazmat law preempts the following
provisions of LACoC Titles 2 and 32:
(1) Title 2 LACoC Secs. 2.20.140, 2.20.150, 2.20.160, and 2.20.170,
to the extent that those provisions levy a fee on tank car unloading
activities. The fees collected under those provisions are not used for
purposes related to hazardous materials transportation;
(2) Title 32 LACoC Sec. 79.809(f), as applied and enforced by Los
Angeles County. Los Angeles County fails to recognize the validity of a
DOT exemption that authorizes HASA to employ alternative methods of
compliance with certain Federal tank car unloading requirements; and
(3) Title 32 LACoC Sec. 79.809(c), which prohibits a tank car from
remaining on a siding at point of delivery for more than 24 hours while
connected for transfer operations, unless otherwise approved by the
fire chief. The unloading restriction is not
[[Page 8790]] ``substantively the same'' as Federal tank car unloading
requirements.
Based on a lack of information in the record, RSPA is unable to
determine whether Federal hazmat law preempts LACoC Title 32,
Secs. 80.103(e), 80.301(b)(1), 80.402(b)(3)(G)(i) and 80.402(c)(8)(A).
Federal hazmat law does not preempt the following provisions of
LACoC Title 32: Sec. 4.108.c.7, Table 4.108-A, Sec. 79.809(b),
Sec. 80.101(a) exception 1, Sec. 80.101(b), Sec. 80.103(a),
Sec. 80.103(b)(1), Sec. 80.103(b)(2), Sec. 80.103(c), Sec. 80.103(d),
Sec. 80.201, Secs. 80.202(a) and (b), Sec. 80.203, Appendix VI-A, and
Sec. 80.301(a)(2).
C. PD-10(R) (Docket PDA-10(R)
Los Angeles County, California Requirements Applicable to the
Transportation and Handling of Hazardous Materials on Private Property
Applicant: Swimming Pool Chemical Manufacturers' Association (SPCMA)
Local Laws Affected:
Los Angeles County Code (LACoC) Title 32 :
Sec. 4.108(c)(8)
Sec. 9.105
Sec. 75.101
Sec. 75.103(a)
Table 75.103-A
Sec. 75.104
Sec. 75.105 (a) and (b)
Sec. 75.108
Sec. 75.205
Sec. 75.602 (a), (b), and (c)
Summary: Federal hazardous material transportation law (Federal
hazmat law), 49 U.S.C. 5101-5127, does not preempt the following
provisions of LACoC Title 32: Sec. 4.108(c)(8), Sec. 9.105,
Sec. 75.101, Sec. 75.103(a), Table 75.103-A, Sec. 75.104, Secs. 75.105
(a) and (b), Sec. 75.108, Sec. 75.205, and Secs. 75.602 (a), (b), and
(c).
1. Application For Preemption Determination
SPCMA filed its application with the Research and Special Programs
Administration (RSPA) on January 20, 1993, asking that certain
provisions of Title 32 of the 1990 LACoC be preempted. SPCMA states
that preemption is warranted because the LACoC applies to the
transportation of cryogenic liquids, including unloading and storage.
Furthermore, SPCMA asserts that the LACoC applies to the construction
of containers used for the transportation of cryogenic liquids, a
covered subject area.
On February 12, 1993, RSPA published a Public Notice and Invitation
to Comment on SPCMA's application. 58 FR 8480. That Notice set forth
the text of SPCMA's application. Following publication of the Public
Notice, comments were submitted by the American Trucking Associations
(ATA), the County of Los Angeles Fire Department, and the Compressed
Gas Association, Inc. Rebuttal comments were submitted by SPCMA.
In response to RSPA's October 14, 1993 Public Notice re-opening the
comment period in Docket PDA-10(R), comments were submitted by SPCMA,
HASA and the County of Los Angeles Fire Department. SPCMA also updated
its application to reflect amendments to Title 32 that were adopted by
Los Angeles County in May 1993.
2. Discussion
a. Permits. (1) LACoC Requirements.
SPCMA challenges the following provisions of LACoC Title 32:
Sec. 75.101 requires that storage, handling, and transportation of
cryogenic fluids be in accordance with LACoC Article 75. (Article 75
sets forth all requirements pertaining specifically to cryogenic
fluids.)
Sec. 4.108(c)(8) states that a permit must be obtained from the
Bureau of Fire Prevention prior to producing, storing or handling
``cryogens'' in excess of amounts specified in Table No. 4.108-B,
except where Federal or State regulations apply.
Sec. 75.104 indicates that a permit must be obtained to store,
handle or transport ``cryogens,'' and references Sec. 4.108.
(2) SPCMA's Arguments and Summary of Comments. SPCMA asserts that
the permit requirements in Title 32 apply to any person, firm or
corporation that stores, handles or transports cryogenic liquids in
excess of the permit amounts set forth in Table No. 4.108-B. Based on
its review of Sec. 4.108.c.8, Sec. 75.101, and Sec. 75.104, SPCMA
concludes that, in the LACoC, the terms ``handling'' and
``transportation'' are synonymous. SPCMA points out that ``handling''
is defined in LACoC Sec. 9.110 as ``the deliberate transport of
material by any means to a point of storage or use.''
SPCMA further contends that ``there is no assurance that a permit
can be obtained from the Bureau of Fire Prevention and/or obtained
without prior compliance with the LACoC, and in particular, Article 75.
Many of the requirements contained in Article 75 are themselves
preempted by [Federal hazmat law] and regulation[s] thereunder.'' SPCMA
concludes that the requirement to obtain a permit prior to the storage,
handling or transportation of cryogenic liquids is an obstacle to
accomplishing and carrying out Federal hazmat law and the HMR and is,
therefore, preempted.
ATA supports SPCMA's position. ATA states that the LACoC applies to
the transportation of cryogenic liquids, including loading, unloading,
and storage incidental thereto, in interstate and intrastate commerce.
ATA believes that the requirements directly conflict with Federal
hazmat law and the HMR.
The County of Los Angeles Fire Department disagrees with SPCMA's
assertion that certain provisions within Title 32 apply to
transportation in commerce, and asserts that Title 32 applies to fixed
facilities that ``handle'' hazardous materials. It states that, under
the LACoC, ``transport'' is defined as ``handle.'' It explains that
cryogenic liquids arrive at a manufacturing facility via railroad tank
car, and the contents are unloaded to a stationary storage tank at the
facility. As the need arises, the cryogenic liquids are ``transported''
via either piping or containers to the site of use. The County of Los
Angeles Fire Department explains that, in the above-described
situation, ```transport' can mean the transport of cryogenic liquids to
processing equipment and pressure vessels from a distant stationary
pressure storage tank via piping or from a portable pressure tank that
is transported to the processing area.'' It submits that the meaning of
transport in the above example is quite different from that set forth
under 49 CFR 107.3, which defines ``transportation'' as ``any movement
of property by any mode, and any loading, unloading, or storage
incidental thereto.''
(3) Analysis. SPCMA, like HASA (in PDA-7(R), discussed above in PD-
9(R)), seeks preemption of the permit requirements under the LACoC. In
this instance, a permit is required to produce, store, transport on
site or handle cryogenic fluids in excess of specified amounts. SPCMA,
like HASA, asserts that the permit requirements are preempted because
they apply to a facility's on-site transportation of hazardous
materials and, therefore, are an obstacle to accomplishing and carrying
out Federal hazmat law. For the reasons enumerated above in PD-8(R),
Federal hazmat law does not preempt the LACoC permit requirements,
which implement the handling requirements under Chapter 6.95 of the
California Health and Safety Code.
b. Definition/Classification of Cryogenic Fluids. (1) LACoC
Requirements. SPCMA challenges the following provisions of LACoC Title
32:
Sec. 9.105 defines cryogenic fluids as those fluids that have a
normal boiling point below 150 degrees fahrenheit.
Sec. 75.103(a) specifies that cryogenic fluids shall be classified
according to Table No. 75.103-A. [[Page 8791]]
Table No. 75.103-A classifies specified cryogenic fluids as either
``flammable,'' ``nonflammable,'' Corrosive/Highly Toxic'' or
``Oxidizer.''
(2) SPCMA's Arguments and Summary of Comments. SPCMA states that
the definition of cryogenic fluid at LACoC Sec. 9.105 differs from the
definition of cryogenic liquid contained at 49 CFR 173.115(g).
Specifically, Sec. 9.105 defines ``cryogenic fluid'' as ``a fluid that
has a normal boiling point below 150 degrees fahrenheit.'' Section
173.115(g) defines ``cryogenic liquid'' as ``a refrigerated liquefied
gas having a boiling point colder than -90 degrees celsius (-130
degrees Fahrenheit) at 101.3 kPa (14.7 psi) absolute.'' SPCMA alleges
that ``it is impossible to comply with both the definition in the LACoC
and the definition in Title 49, because the LACoC definition includes
additional `hazardous materials' which are not classified for shipment
as `cryogenic liquids' in the `Hazardous Materials Table' at 49 CFR
172.101.'' SPCMA, therefore, concludes that Sec. 9.105 should be
preempted because it applies to a covered subject area--the designation
of materials as hazardous--and compliance with both the Federal and
local requirement is impossible.
With respect to the classification of hazardous materials, SPCMA
states that Sec. 75.103 and Table 75.103-A provide a classification
system for cryogenic fluids that is in addition to and different from
the HMR. SPCMA gives several examples of how the LACoC classification
system and the HMR classification system differ. SPCMA concludes that
Federal hazmat law preempts Sec. 75.103 and Table 75.103-A because
those provisions apply to hazardous materials classification, a covered
subject, and are not substantively the same as the Federal requirement.
The County of Los Angeles Fire Department opposes preemption of
Sec. 75.103 and Table 75.103-A. It states that ``Title 32 [of the
LACoC] regulates the handling and not the transport[ation] (per 49 CFR
107.3) of hazardous substances at a fixed facility. The chemical
classification under [Federal hazmat law and the HMR] applies to
transportation and does not apply to `handling' of cryogenic liquids
within a fixed facility.''
(3) Analysis. The designation of materials as hazardous and the
classification of hazardous materials, for purposes of transportation
in commerce, are exclusive to the Federal Government. See 49 U.S.C.
5125(b)(1)(A). Federal hazmat law provides that State, local and Indian
tribe requirements pertaining to hazardous materials designation and
classification for purposes of transportation in commerce are preempted
if they are not substantively the same as the Federal requirements or
are not otherwise authorized by Federal law. Id. The Federal
Government's exclusive role in hazardous materials designation and
classification is limited, however, to materials that are in
transportation in commerce. Federal hazmat law provides that ``[t]he
Secretary of Transportation shall designate material * * * or a group
or class of material as hazardous when the Secretary decides that
transporting the material in commerce in a particular amount and form
may pose an unreasonable risk to health and safety or property.'' 49
U.S.C. 5103 (emphasis added).
There is no evidence in the record that Los Angeles County, through
LACoC Sec. 9.105, is attempting to designate additional materials as
hazardous for purposes related to transportation in commerce.
Furthermore, there is no evidence in the record that the LACoC's
classification system for cryogenic fluids is applied to materials that
are in transportation in commerce. In order for Federal hazmat law to
preempt the LACoC requirements, the LACoC requirements would have to
apply to the transportation of hazardous materials in commerce, or
loading, unloading or storage incidental thereto.
The LACoC's designation of certain materials as ``cryogenic
fluids'' and its classification of those materials, in conjunction with
the amount of the cryogenic fluid at issue, appear from the record and
from RSPA's review of LACoC Article 75 to be used to determine, among
other things: (1) whether a permit is required under Article 4 of Title
32, Table 4.108-A; and (2) the required minimum separation between
cryogenic fluids in storage on the one hand, and buildings, public
spaces, and other hazardous materials, on the other. See Table 75.303-
A. RSPA has determined that Federal hazmat law does not preempt the
LACoC permit requirements because the underlying substantive
requirements are otherwise authorized by Federal law. Furthermore,
consignee storage of hazardous materials is not regulated under Federal
hazmat law.
Thus, Federal hazmat law does not preempt Sec. 9.105,
Sec. 75.103(a), or Table No. 75.103-A.
c. Hazard Communication. (1) LACoC Requirements. SPCMA challenges
the following provisions of LACoC Title 32:
Sec. 75.108 requires that warning labels and signs be posted on
containers and equipment at locations prescribed by the fire chief.
Sec. 75.205 states that containers must be identified by the
attachment of a nameplate in an accessible place marked as authorized
by nationally recognized standards (as set forth at Sec. 2.304(b)) or
DOT regulations.
Sec. 75.602(a) indicates that vehicles transporting cryogenic
fluids and subject to Title 32 must be ``placarded at the front, rear
and on each side identifying the product.'' Placards must have letters
not less than two inches high using approximately a \5/8\ inch stroke.
Abbreviations are not permitted. Vehicles also must bear other placards
required by DOT.
(2) SPCMA's Arguments and Summary of Comments. SPCMA states that
Sec. 75.108 requires fixed facilities to post warning labels and signs
on containers and equipment and at locations prescribed by the fire
chief. SPCMA asserts that the phrase ``warning labels and signs''
includes labeling, marking and placarding of cryogenic liquid
containers. SPCMA further asserts that the LACoC does not specify the
particular requirements for labeling, marking and placarding and that,
therefore, SPCMA cannot compare the LACoC requirements with Federal
hazmat law and HMR requirements in order to ascertain whether they are
substantively the same. SPCMA also alleges that different fire chiefs
in different jurisdictions ``are likely to have different
requirements.'' SPCMA concludes that the requirements under Sec. 75.108
are preempted because they apply to a covered subject--labeling,
marking and placarding of hazardous materials--and are an obstacle to
accomplishing and carrying out Federal hazmat law and the HMR.
SPCMA states that Sec. 75.205 requires that nameplates be attached
to containers ``as authorized by nationally recognized standards or DOT
regulations.'' SPCMA asserts that ``nationally recognized standards''
may or may not be substantively the same as requirements under the HMR.
SPCMA states that Sec. 75.205 is preempted because it applies to
containers used for the transportation of cryogenic liquids--a covered
subject area.
SPCMA states that the vehicle placarding requirements under
Sec. 75.602 are in addition to, and different from, Federal
requirements. Furthermore, SPCMA asserts that Sec. 75.602(a) confuses
the requirements for ``marking'' and ``placarding.'' SPCMA states that
```[p]lacarding' is required in the LACoC where neither `placarding'
nor `marking' is required by Federal regulation. In the LACoC,
placarding is required for all [[Page 8792]] shipments of cryogenic
liquids, irrespective of quantity being transported. [Under the HMR,]
placarding is not required for shipments of 1,000 pounds or less for
2.1 and 2.2 materials. All shipments--irrespective of quantity--of 2.3
material require placarding.''
SPCMA also states that the ``placarding'' requirement at 75.602(a)
actually appears to be a ``marking'' requirement addressed in Subpart D
of 49 CFR Part 172. SPCMA states that Sec. 75.602(a) requires
```placarding' on all vehicles transporting any quantity of cryogenic
liquids, and that `placarding' includes `placards' and `markings.'''
SPCMA concludes that the requirements at Sec. 75.602(a) are in addition
to and different from Federal requirements, in that placarding is
required under the LACoC ``at times when and at places where there is
no Federal requirement.'' SPCMA asserts that Sec. 75.602(a)
requirements pertain to a covered subject area and are not
substantively the same as the Federal requirements. SPCMA, therefore,
requests that the requirements be preempted. SPCMA also alleges that
the Sec. 75.602(a) requirements ``fail'' the dual compliance test.
The County of Los Angeles Fire Department opposes preemption of
Sec. 75.602(a), stating that the placarding requirements under the
LACoC apply to the on-site handling of hazardous materials and not the
transportation of hazardous materials in commerce.
(3) Analysis. The record does not reflect that the labeling,
nameplating and placarding requirements under Secs. 75.108, 75.205, and
75.602(a), respectively, are applied to hazardous materials that are in
transportation in commerce and, consequently, regulated under Federal
hazmat law and the HMR. These regulations appear to apply to hazardous
materials stored and transported at facilities for consumption in
manufacturing processes. As stated throughout this determination,
Federal hazmat law and the HMR do not apply to: (1) hazardous materials
that are stored at a consignee's facility; or (2) the transportation of
hazardous materials exclusively on private property. Therefore, to the
extent that the requirements in Secs. 75.108, 75.205 and 75.602(a)
pertain to hazardous materials that are stored at a consignee's
facility or that are being transported exclusively within that
facility, they do not conflict with Federal hazmat law and are not
preempted.
d. Motor Vehicles. (1) LACoC Requirements. SPCMA challenges the
following provisions of LACoC Title 32:
Sec. 75.602(b) requires that vehicles transporting cryogenic fluid
be equipped with not less than one approved-type fire extinguisher,
with a minimum rating of 2-A:20-B:C.
Sec. 75.602(c) requires that vehicles transporting cryogenic fluid
be equipped with adequate chock blocks.
(2) SPCMA's Arguments and Summary of Comments. SPCMA notes that 49
CFR 177.804 requires motor carriers and other persons subject to 49 CFR
Part 177 to comply with Federal Motor Carrier Safety Regulations
(FMCSR). SPCMA states that the FMCSR, at 49 CFR 393.95, requires a host
of safety equipment on all power units, e.g., fire extinguishers, spare
fuses, flares, red flags. SPCMA asserts that because ``there is no
requirement [under the LACoC] for emergency equipment other than fire
extinguishers * * * the [LACoC] fire extinguisher requirement is
inconsistent with the Federal requirements contained in * * * 49 CFR
393.95(a).'' SPCMA concludes that the fire extinguisher requirement
``fails both the `obstacle' and `dual compliance' tests'' and should be
preempted.
SPCMA does not address the requirement in Sec. 75.602(c) that
vehicles transporting cryogenic fluid be equipped with adequate chock
blocks.
No commenter specifically addressed Sec. 75.602(b) or
Sec. 75.602(c).
(3) Analysis. SPCMA does not allege and the record does not reflect
that the requirements under Sec. 75.602(b) or Sec. 75.602(c) are
applied to motor vehicles that transport hazardous materials on other
than private property. As stated earlier, Federal hazmat law and the
HMR apply to transportation in commerce. Ground transportation is ``in
commerce'' when it takes place on, across, or along a public way.
Ground transportation of hazardous material that takes place entirely
on private property is not transportation ``in commerce,'' and is not
regulated by Federal hazmat law and the HMR.
Thus, Federal hazmat law does not preempt LACoC Sec. 75.602(b) or
Sec. 75.602(c) to the extent that each applies to motor vehicles that
are transporting hazardous materials exclusively on private property.
e. Packaging Design and Construction. (1) LACoC Requirements. SPCMA
challenges the following provisions of LACoC Title 32:
Sec. 75.105(a) requires that containers, equipment and devices used
for the storage, handling and transportation of ``cryogenic fluids'' be
of a type, material and construction approved by the fire chief as
suitable for that use. Approval is based on satisfactory evidence that
design, construction and testing are in accordance with nationally
recognized standards. Title 32, Sec. 2.304(b) lists various national
standards and publications, and indicates that the most recent edition
or supplement may be used; included in that list is Title 49, Code of
Federal Regulations, Chapter 1, which contains the HMR.
Sec. 75.105(b) states that containers, equipment or devices that
are not in compliance with recognized standards for design and
construction may be approved by the chief on presentation of
satisfactory evidence that they are designed and constructed for safe
operation.
(2) SPCMA's Arguments and Summary of Comments. SPCMA notes that the
term ``container'' is defined at Sec. 75.102(b) as ``any cryogenic
vessel used for transportation, handling or storage.'' SPCMA believes
the term ``container'' includes all containers used for both storage
and on-site transportation of cryogenic liquids, including portable
tanks, cargo tanks and rail cars. SPCMA further notes that the fire
chief has discretionary approval authority under Secs. 75.105 (a) and
(b).
SPCMA specifically requests that three issues be addressed in
RSPA's preemption determination regarding Secs. 75.105 (a) and (b):
(1) Can the chief prohibit the use of containers for the
transportation of cryogenic liquids, which he has not approved, and
where there are no Federal specifications?
(2) Can the chief approve containers for the transportation of
cryogenic liquids [when those containers] are different from those
specified in Title 49 of the CFR?
(3) Can the chief approve containers for the transportation of
cryogenic liquids which are not in compliance with Federal
specifications where Federal specifications exist?
SPCMA states that the fire chief is authorized to approve
containers prior to the on-site transportation of cryogenic liquids,
including type, material, and construction, absent any Federal
requirements. Furthermore, SPCMA alleges that requirements and
specifications are likely to vary from district to district, depending
on requirements and specifications established by the local fire chief.
SPCMA also asserts that the fire chief is authorized to approve any
container for on-site transportation without regard to whether the
container is constructed in accordance with DOT specifications.
Consequently, the fire chief can approve specifications and
construction of containers that are in addition to, different from, or
not approved by DOT. SPCMA concludes that the requirements under
Secs. 75.105 (a) and (b) should be [[Page 8793]] preempted by the
Federal hazmat law because they: (1) are an obstacle to accomplishing
and carrying out Federal hazmat law and the HMR; and (2) apply to a
covered subject area and are not substantively the same as the Federal
requirements.
ATA agrees with SPCMA's position and arguments regarding the LACoC
packaging design and construction requirements to the extent that the
requirements ``pertain to actual transportation of hazardous
materials.'' Nevertheless, ATA believes that the LACoC requirements are
not in conflict with Federal hazmat law and the HMR where
transportation has concluded. ATA notes that ``strict storage of
materials for use on the consignee's property is not governed by
[Federal hazmat law] and HMRs. Regulations pertaining to storage of
materials are within the purview of [OSHA] at the Federal level and
similar agencies within the states.''
(3) Analysis. Federal hazmat law and the HMR apply to the design
and construction of containers used to transport hazardous materials in
commerce. This authority is exclusive to the Federal Government. See 49
U.S.C. 5125(b)(1)(E). Federal hazmat law provides that the ``design,
manufacturing, fabricating, marking, maintenance, reconditioning,
repairing, or testing of a package or container represented, marked,
certified or sold as qualified for use in transporting hazardous
material'' is a covered subject area. Id. A State, local or Indian
tribe requirement that is not substantively the same as the Federal
requirements, therefore, is preempted unless otherwise authorized by
Federal law.
The packaging design and construction requirements under the LACoC
apply to packagings used to transport hazardous materials within the
gates of a facility. Federal hazmat law and the HMR do not apply to
packagings that are intended for use solely on private property, i.e.,
packagings that are not intended for the transportation of hazardous
materials in commerce. The record does not reflect that the containers,
equipment and devices regulated under Secs. 75.105 (a) and (b) are used
to store, handle or transport cryogenic fluids that are in
transportation in commerce.
Consequently, Federal hazmat law does not preempt Secs. 75.105 (a)
and (b).
3. Ruling
Based on the above, Federal hazmat law does not preempt any of the
following provisions of Title 32 LACOC: Sec. 4.108(c)(8), Sec. 9.105,
Sec. 75.101, Sec. 75.103(a), Table 75.103-A, Sec. 75.104, Secs. 75.105
(a) and (b), Sec. 75.108, Sec. 75.205, and Secs. 75.602 (a), (b) and
(c).
D. PD-11(R) (Docket PDA-11(R))
Los Angeles County, California Requirements for The On-Site
Transportation of Compressed Gases
Applicant: Swimming Pool Chemical Manufacturers' Association (SPCMA)
Local Laws Affected: Los Angeles County Code (LACoC), Title 32
Sec. 4.108.c.7
Summary: Federal hazardous material transportation law, 49 U.S.C.
5101-5127, does not preempt LACoC Sec. 4.108.7 because the substantive
permit application requirements are otherwise authorized by Federal
law, specifically Title III of the Superfund Amendments and
Reauthorization Act (SARA Title III), 42 U.S.C. Secs. 11001 et seq. and
Sec. 112(r) of the Clean Air Act Amendments of 1990 (CAA Amendments),
42 U.S.C. 7412(r).
1. Application for Preemption Determination
On January 12, 1993, SPCMA applied for a determination that Federal
hazmat law preempts the permit requirement under LACoC Title 32 as it
applies to the on-site transportation of compressed gases. On February
12, 1993, the Research and Special Programs Administration (RSPA)
published a Public Notice and Invitation to Comment on SPCMA's
application in the Federal Register, 58 FR 8488. That Notice set forth
the text of SPCMA's application. Following publication of this Public
Notice, comments were submitted by the American Trucking Associations,
the County of Los Angeles Fire Department, and the Compressed Gas
Association. Rebuttal comments were submitted by SPCMA.
In response to RSPA's October 14, 1993, Public Notice re-opening
the comment period in Docket PDA-11(R), comments were submitted by
SPCMA, HASA and the County of Los Angeles Fire Department.
2. Discussion Regarding Permits
a. LACoC Requirement. SPCMA challenges the following provision
under LACoC Title 32:
Sec. 4.108.c.7 requires a permit to be obtained from the Bureau of
Fire Prevention prior to engaging in the storage, on-site
transportation, dispensing, use or handling of a compressed gas, at
normal temperatures and pressures, in excess of specified amounts
listed in Table 4.108-A.
b. SPCMA's Arguments and Summary of Comments. SPCMA states that a
permit is required ``for the `on-site' transportation of compressed
gases, i.e., movement on property owned, leased, or otherwise under the
control of the consignor, consignee, manufacturer, transporter, etc.''
SPCMA further asserts that ``[i]n almost all cases, both `loading' and
`unloading' of compressed gases occur `on-site.' Therefore, the permit
requirement in the LACoC is applicable to such activities.''
SPCMA asserts that ``there is no assurance in the LACoC that a
permit can be obtained from the bureau of fire prevention and/or
obtained without prior compliance with the LACoC. Moreover, a permit
can be revoked or cancelled where a change in ownership of the business
occurs, change in use of the property, noncompliance with the fire
code, change in operations, etc.'' SPCMA believes that ``the permit
system is an unauthorized prior restraint on shipment of compressed
gases in commerce which are presumptively safe based on compliance with
[Federal hazmat law and the HMR], and therefore, constitutes an
obstacle to the accomplishment and execution of [Federal hazmat law].''
The County of Los Angeles Fire Department opposes preemption of
Sec. 4.108.c.7, stating that the permit requirement does not apply to
the transportation of hazardous materials in commerce. It asserts that:
``transportation'' as stated in 49 CFR 107.3, means any movement
of property by any mode, and any loading, unloading or storage
incidental thereto, as related to intrastate and interstate
commerce. Under [Title 32 of the LACoC] the * * * meaning of
transport is defined as `handle.' Title 32 * * * regulates the
`storage,' `handling' and `use' of hazardous substances, materials
and devices that may prove to be hazardous to life or property in
the use or occupancy of buildings or premises. [The permit
requirement for compressed gases] specifically states the exemption
of the permitting requirement for those facilities [where] Federal
or State regulations apply.
c. Analysis. In PDA-7(R), HASA challenged LACoC Sec. 4.108.c.7. A
discussion of the LACoC permit requirement under Sec. 4.108.c.7, and
the rationale for RSPA's finding that Federal hazmat law does not
preempt Sec. 4.108.c.7, are at PD-8(R), above.
3. Ruling
Based on the above, Federal hazmat law does not preempt
Sec. 4.108.7 because the substantive permit application requirements
are otherwise authorized by Federal law, specifically SARA Title III
and Sec. 112(r) of the CAA Amendments. [[Page 8794]]
III. Appeal Rights
In accordance with 49 CFR 107.211(a), ``[a]ny person aggrieved'' by
these decisions may file a petition for reconsideration within 20 days
of service of this decision. Any party to these proceedings may seek
review of RSPA's decisions ``by the appropriate district court of the
United States * * * within 60 days after such decision becomes final.''
49 App. U.S.C. 1811(e).
These decisions will become RSPA's final decisions 20 days after
service 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 the decision under 49 U.S.C. 5125(f).
If a petition for reconsideration of these decisions is filed
within 20 days of service, 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 February 7, 1995.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
Appendix A--Statutory and Regulatory Provisions at Issue in PD-8(R),
PD-9(R), PD-10(R) and PD-11(R)
A. PD-8(R)--(Docket PDA-9(R)) California Health and Safety Code,
Chapter 6.95
25501.3. Additional definition of ``Handle''
``Handle'' also means the use or potential for use of a quantity
of hazardous material by the connection of any marine vessel, tank
vehicle, tank car, or container to a system or process for any
purpose other than the immediate transfer to or from an approved
atmospheric tank or approved portable tank.
25503.7. Railroad car, marine vessel, or tank truck at same facility 30
days; stored
(a) When any hazardous material contained in any rail car, rail
tank car, rail freight container, marine vessel, or marine freight
container remains within the same railroad facility or business
facility for more than 30 days, or a business knows or has reason to
know that any rail car, rail tank car, rail freight container,
marine vessel, or marine freight container containing any hazardous
material will remain at the same railroad facility, marine facility,
or business facility for more than 30 days, the hazardous material
is deemed stored at that location and for purposes of this chapter
and subject to the requirements of this chapter.
(b) Subdivision (a) does not apply to a marine vessel while
under construction, repair, modernization, or retrofitting while
located in a ship repair facility.
(c) Notwithstanding Section 25510, a business handling hazardous
materials or hazardous substances which are stored in a manner
subject to subdivision (a) shall immediately notify the
administering agency whenever a hazardous material is stored in a
rail car, rail tank car, rail freight container, marine vessel, or
marine freight container. (Amended by Stats. 1991, Ch. 1128.)
B. PD-9(R)--(Docket PDA-7(R)) Los Angeles County Code, Titles 2 and
32
Title 2
Section 2.20.140 Annual fees to be paid by handlers of hazardous
materials.
The annual fee required to be paid to the county by every
handler of hazardous materials for the administration and
enforcement of the provisions of the Act shall be as follows:
------------------------------------------------------------------------
Total quantity of hazardous materials
handled at any one time during the retotal
Fee group quantity of hazardous materials handled at Annual fee
any one time during fee group the reporting
year
------------------------------------------------------------------------
I............ Minor Handler............................... $110.00
55-500 gallons or
500-5,000 pounds or
200-2,000 cubic feet
II........... Moderate Handler............................ 330.00
501-2,750 gallons or
5,001-25,000 pounds or
2,001-10,000 cubic feet
III.......... Major Handler............................... 770.00
2,751 and over gallons or
25,001 and over pounds or
10,0001 and over cubic feet
IV........... Major Handler--Large Volume................. 2,650.00
(a) 50,000 gallons and over or
(b) 500,000 pounds and over or
(c) 200,000 cubic feet and over or
(d) A total quantity of two or more
hazardous materials when expressed in or
converted to pounds that is 500,000 pounds
or greater, AND
(e) Which is either a refinery, chemical
plant, distillery, bulk plant, or terminal
as defined herein.
------------------------------------------------------------------------
The following definitions govern the construction of this Section
2.20.140:
``Refinery'' means a plant in which flammable or combustible liquids
are produced on a commercial scale from crude petroleum, natural
gasoline, or other hydrocarbon sources.
``Chemical plant'' means a large integrated plant or that portion of
such a plant other than refinery or distillery where liquids are
produced by chemical reactions or used in chemical reactions.
``Distillery'' means a plant or that portion of a plant where liquids
produced by fermentation are concentrated, and where the concentrated
products may also be mixed, stored, or packaged.
``Bulk plant or terminal'' means that portion of a property where
liquids are received by tank vessel, pipelines, tank car, or tank
vehicle, and are stored or blended in bulk for the purpose of
distributing such liquids by tank vessel, pipeline, tank car, tank
vehicle, portable tank, or container.
------------------------------------------------------------------------
V............ Exempt Handler.............................. No fee
Less than 55 gallons and
Less than 500 pounds and
Less than 200 cubic feet
Exception:... ............................................ Annual fee
Underground fuel tanks regardless of $110.00
quantity..
------------------------------------------------------------------------
[[Page 8795]]
Exemption: Every governmental agency shall comply with the reporting
requirements established by the county administering agency relating to
hazardous materials under the Act, but every governmental agency is
exempt from the annual fee required to be paid under this Section
2.20.140.
(Ord. 90-0109 Sec. 3.1990: Ord. 89-0055 Sec. 1.1989: Ord. 87-0001 Sec. 1
(part), 1987.)
------------------------------------------------------------------------
2.20.150 Additional fees--Acutely hazardous substances.
Every handler of an acutely hazardous material, shall in
addition to the fee specified in Section 2.20.140, be required to
pay an annual fee to the county for the administration and
enforcement of acutely hazardous materials registration, risk
assessment, and risk mitigation in accordance with compliance under
the Act. This fee shall be calculated as follows:
AHM Fee = Base Administrative Fee + RMPP Risk Factor Fee
Where:
The base administrative fee shall be charged each handler of one
or more acutely hazardous materials or mixtures containing an
acutely hazardous material handled in quantities equal to or greater
than the threshold planning quantities specified in Section 25536 of
the Act, as follows:
1-3 AHMs = $50
4 or more AHMs = $100
And
RMPP Risk Factor Fee = Rate Factor x Handler Risk Units
Where:
The county rate factor shall be calculated as the county RMPP
program cost (the cost base for which is defined in Section
2.20.170), minus the total of the handler base administrative fees,
divided by the total county risk units.
Rate Factor = County RMPP Program Cost--Total Base Admin.
FeesTotal County Risk Units
The total county risk units is determined by adding the risk
units for each AHM registered in the county. The number of risk
units for each AHM is equal to the total reported daily maximum
quantity in pounds divided by the assigned TPQ for that AHM. For the
1990-91 fiscal year, the county RMPP program cost is $547,871, the
total base administrative fees is $38,650, the total county risk
units is 885,629 and the rate factor is $0.57498
And:
The handler risk units are determined by adding risk units for
each AHM required to be registered by each handler.
Any ``Third Party Technical Review'' required by the
administering agency shall be a cost paid by the handler.
Exemption:
Every governmental agency shall comply with the reporting
requirements established by the county administering agency relating
to AHMs under the Act, but every governmental agency is exempt from
the annual fee required to be paid under this Section 2.20.150.
(Ord. 90-0190 Sec. 4, 1990.)
2.20.160 Late submission fee.
A late submission fee shall apply to the filing requirements of
both the business plan and inventory and to the AHM registration
requirements as follows:
Each handler submitting the required hazardous materials
business plan or inventory documents after January 1st of each year
or of each second year as specified in Section 2.20.130 and each AHM
handler submitting the required AHM registration documents after
January 1st of each year shall be levied a late submission fee
commensurate to the additional administrative costs as determined by
the administering agency and approved by the auditor-controller.
Said late submission fee shall be $230 for the 1990-91 fiscal year.
(Ord. 90-0190 Sec. 5, 1990.)
2.20.170 Fee schedule--Annual adjustment procedure.
Beginning with the 1991-92 fiscal year, the schedule of fees
contained in Sections 2.20.140 through 2.20.160 inclusive shall be
adjusted annually by the following procedure:
The annual adjustment shall be the result of computing the
change in the annualized cost to the administering agency of
administering the program, where ``annualized cost'' is defined as
the program cost which includes applicable salary, employee benefits
and overhead calculated from rates contained in the administering
agency's rate package, as approved by the auditor-controller.
Program Cost=Hazmat Section Personnel Salaries+Employee
Benefits+Overhead
The program cost is annually re-allocated among handlers based
upon:
(A) Disclosure Unit--The number of handlers in each fee group
and time involved in processing the required documents in each
group.
(B) RMPP Unit--Total county risk units and each handlers risk
units.
Where:
Disclosure unit is the unit assigned to administer the hazardous
materials disclosure program (Section 2.20.140), and RMPP unit is
the unit assigned to administer the AHM registration and risk
management and prevention programs (Section 2.20.150).
(Ord. 90-0190 Sec. 6, 1990.)
TITLE 32
Sec. 4.108.
A permit shall be obtained from the bureau of fire prevention
prior to engaging in the following activities, operations, practices
or functions: * * *
c.7. Compressed gases. To store, transport on site, dispense,
use or handle at normal temperatures and pressures compressed gases
in excess of the amounts listed in Table No. 4.108.A.
Table No. 4.108-A.--Permit Amounts for Compressed Gases\1\
------------------------------------------------------------------------
Type of gas Amount
------------------------------------------------------------------------
Corrosive...................................... Any amount.
Flammable (except cryogenic fluids and 200 cubic feet.
liquefied petroleum gases).
Highly toxic................................... Any amount.
Inert.......................................... 6,000 cubic feet.
Oxidizing (including oxygen)................... 500 cubic feet.
Pyrophoric..................................... Any amount.
Radioactive.................................... Any amount.
Toxic.......................................... Any amount.
Unstable (reactive)............................ Any amount.
------------------------------------------------------------------------
\1\See Articles 74, 80 and 82 for additional requirements and
exceptions.
Sec. 79.809.
(b) Storage Tanks. Class I, II or III liquids shall be
transferred from a tank vehicle or tank car only into an approved
atmospheric tank or approved portable tank.
(c) Time Limit. Tank vehicles and tank cars shall be unloaded as
soon as possible after arrival at point of delivery and shall not be
used as storage tanks. Tank cars shall be unloaded only on private
sidings or railroad siding facilities equipped for transferring the
liquid between tank cars and permanent storage tanks. Unless
otherwise approved by the chief, a tank car shall not be allowed to
remain on a siding at point of delivery for more than 24 hours while
connected for transfer operations.
(f) Attendant. The operator or other competent person shall be
in attendance at all times while a tank vehicle or tank car is
discharging cargo. When practical, the tank vehicle or tank car
shall be positioned such that the operating controls and the
discharging end of the hoses are both in view of the operator or
other competent person.
Sec. 80.101.
(a) General. Prevention, control and mitigation of dangerous
conditions related to storage, dispensing, use and handling of
hazardous materials and information needed by emergency response
personnel shall be in accordance with this article.
Exceptions: 1. Off-site hazardous materials transportation in
accordance with DOT requirements. * * *
(b) Material Classification. Hazardous materials are those
chemicals or substances defined as such in Article 9. See Appendix
VI-A for the classification of hazard categories and hazard
evaluations. [[Page 8796]]
Exception: For the purpose of this article, carcinogens,
irritants and sensitizers do not include commonly used building
materials and consumer products which are not otherwise regulated
elsewhere in this code.
The classification system referenced in Division II shall apply
to all hazardous materials regulated elsewhere in this code.
Sec. 80.103.
(a) General. Permits are required to store, dispense, use or
handle hazardous material in excess of quantities specified in
Section 4.108.
A permit is required when a material is classified as having
more than one hazard category if the quantity limits are exceeded in
any category.
Permits are required to install, repair, abandon, remove, place
temporarily out of service, close or substantially modify a storage
facility or other area regulated by this article. See also Sections
80.110 and 80.111.
(b) Hazardous Materials Business Plan. 1. Application. Each
application for a permit required by this article shall include a
hazardous materials business plan (HMBP) in accordance with Part 2
of Chapter 2.20 of Title 2 of this code. (2)--Reporting. Every
business shall comply with the reporting requirements as set forth
in Part 2 of Chapter 2.20 of Title 2 of this code.
(c) Hazardous Materials Inventory Statement. Each application
for a permit required by this article shall include a hazardous
materials inventory statement (HMIS) in accordance with Part 2 of
Chapter 2.20 of Title 2 of this code.
(d) Risk Management and Prevention Program. Every business shall
comply with the requirements as set forth in Part 2 of Chapter 2.20
of this code.
(e) Emergency Information. Hazardous materials business plans,
risk management prevention programs and hazardous materials
inventory statements shall be posted in an approved location and
immediately available to emergency responders. The chief may require
that the information be posted at the entrance to the occupancy or
property. (Ord. 93-0044 Sec. 100, 1993.)
Sec. 80.201.
Hazardous materials shall be divided into hazard categories. The
categories include materials regulated under this article and
materials regulated elsewhere in this code.
Sec. 80.202.
(a) Physical Hazards. The materials listed in this subsection
are classified as physical hazards. A material with a primary
classification as a physical hazard can also present a health
hazard.
1. Explosives and blasting agents, regulated elsewhere in this code.
2. Compressed gases, regulated in this article and elsewhere in this
code.
3. Flammable and combustible liquids regulated elsewhere in this
code.
4. Flammable solids.
5. Organic peroxides.
6. Oxidizers.
7. Pyrophoric materials.
8. Unstable (reactive) materials.
9. Water-reactive solids and liquids.
10. Cryogenic fluids, regulated under this article and elsewhere in
this code.
(b) Health Hazards. The materials listed in this subsection are
classified as health hazards. A material with a primary
classification as a health hazard can also present a physical
hazard.
1. Highly toxic or toxic materials, including highly toxic or toxic
compressed gases.
2. Radioactive materials.
3. Corrosives.
4. Carcinogens, irritants, sensitizers and other health hazards.
Sec. 80.203.
For descriptions and examples of materials included in hazard
categories, see Appendix VI-A.
Appendix VI-A--[available in RSPA Dockets Unit]
Sec. 80.301.
(a)(2) Quantities exceeding exempt amounts. Storage of hazardous
materials, in containers, cylinder and tanks, in excess of the
exempt amounts specified in Sections 80.302 through 80.315 shall be
in accordance with this division. Tank vehicles and railroad tank
cars shall not be used as storage tanks. Unloading operations shall
be in accordance with Section 79.808 [sic] [Should read ``Section
79.809'']. (Ord. 93-0044 Sec. 104, 1993.)
(b)(1) Containers and Tanks. Design and construction. Containers
and tanks shall be designed and constructed in accordance with
nationally recognized standards. See Section 2.304(b).
Sec. 80.402.
(b)(3)(G)(i) [Indoor dispensing and use] [Closed Systems]
Special requirements for highly toxic and toxic compressed gases.
Ventilation and storage arrangement. Compressed gas cylinders in use
shall be within ventilated gas cabinets, laboratory fume hoods,
exhausted enclosures or separate gas storage rooms. When portable or
stationary tanks are utilized in use or dispensing, they shall be
within a ventilated separate gas storage room or placed within an
exhausted enclosure.
(c)(8)(A) [Exterior Dispensing and Use] Special requirements for
highly toxic or toxic compressed gases. Ventilation and storage
arrangement. When cylinders or portable containers are used out-of-
doors, gas cabinets or a locally exhausted enclosure shall be
provided.
C. PD-10(R)--(Docket PDA-10(R))
LOS ANGELES COUNTY CODE, TITLE 32
Sec. 4.108.
(c)(8). Cryogens. Except where federal or state regulations
apply and except for fuel systems of the vehicle, to produce, store
or handle cryogens in excess of the amounts listed in Table No.
4.108-B.
Sec. 9.105.
Cryogenic Fluid is a fluid that has a normal boiling point below
150 deg.F.
Sec. 75.101
Storage, handling and transportation of cryogenic fluids shall
be in accordance with this article.
For quantity limits for storage in buildings, see Section
80.311.
Sec. 75.103.
(a) Classification. Cryogenic fluids shall be classified
according to Table No. 75.103-A.
Table No. 75.103-A.--Classification of Cryogenic Fluids
------------------------------------------------------------------------
Corrosive/
Flammable Nonflammable highly toxic Oxidizer
------------------------------------------------------------------------
Carbon Monoxide. Air............ Carbon Monoxide Fluorine.
Deuterium1...... Argon.......... Fluorine....... Nitric oxide.
Ethylene........ Helium......... Nitric oxide... Oxygen.
Hydrogen........ Krypton........
Methane......... Neon...........
Nitrogen.......
Xenon..........
------------------------------------------------------------------------
1Heavy hydrogen is treated as hydrogen in this article.
Sec. 75.104.
For a permit to store, handle or transport cryogens, see Section
4.108.
Exception: Permits are not required for vehicles properly
equipped for and using cryogenic fluids as the primary fuel for
propelling the vehicle or for refrigerating the lading.
Sec. 75.105.
(a) General. Containers, equipment and devices used for the
storage, handling and transportation of cryogenic fluids shall be of
a type, material and construction approved [[Page 8797]] by the
chief as suitable for such use. Approval shall be based upon
satisfactory evidence that the design, construction and test are in
accordance with nationally recognized standards. See Section
2.304(b).
(b) Unidentified Containers. Containers, equipment or devices
which are not in compliance with recognized standards for design and
construction may be approved by the chief upon presentation of
satisfactory evidence that they are designed and constructed for
safe operation.
Sec. 75.108.
Warning labels and signs shall be posted on containers and
equipment and at locations prescribed by the chief.
Sec. 75.205.
Containers shall be identified by the attachment of a nameplate
in an accessible place marked as authorized by nationally recognized
standards or DOT regulations. See Section 2.304(b).
Sec. 75.602.
Vehicles transporting cryogenic fluids and subject to
requirements of this code shall:
(a) Be placarded at the front, rear and on each side identifying
the product. Placards shall have letters not less than 2 inches high
using approximately a 5/8-inch stroke. Abbreviations shall not be
used. In addition to the placard identifying the product, vehicles
shall also bear other placards required by DOT, such as FLAMMABLE
GAS and OXIDIZER.
(b) Be equipped with not less than one approved-type fire
extinguisher, with a minimum rating of 2-A:20-B:C.
(c) Be equipped with adequate chock blocks.
D. PD-11(R)--(Docket PDA-11(R))
LOS ANGELES COUNTY CODE, TITLE 32
Sec. 4.108.
A permit shall be obtained from the bureau of fire prevention
prior to engaging in the following activities, operations, practices
or functions: * * *
c.7. Compressed gases. To store, transport on site, dispense,
use or handle at normal temperatures and pressures compressed gases
in excess of the amounts listed in Table No. 4.108-A.
[FR Doc. 95-3590 Filed 2-14-95; 8:45 am]
BILLING CODE 4910-60-P
