Hazardous Substances

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 172

[Docket No. HM-145J; Amdt. No. 172-135]

RIN 2137-AC56

Hazardous Substances

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

ACTION: Final rule; decision on petition for reconsideration.

-----------------------------------------------------------------------

SUMMARY: On June 20, 1994, RSPA amended the Hazardous Materials

Regulations (HMR) by designating 15 hazardous substances as hazardous

materials and amending the reportable quantity (RQ) for 34 other

hazardous substances already designated as hazardous materials.

Petitioners, metals mining and refining companies, requested that the

rule modify the HMR to except from the hazardous material designation

copper, molybdenum and zinc concentrates containing small amounts of

lead sulfide, a hazardous substance. Alternatively, petitioners asked

that the effective date of the rule be stayed to allow for the docket

to be opened for public comment. The petition is denied. The effective

date of that part of the rule that reduces the RQ for lead sulfide is

extended for 90 days.

EFFECTIVE DATE: August 31, 1994. The effective date of that part of the

rule, published on June 20, 1994 (59 FR 31822) revising Table 1 in

Appendix A to Sec. 172.101 that reduces the RQ for lead sulfide is

extended from August 29, 1994 to November 29, 1994.

FOR FURTHER INFORMATION CONTACT: John Gale, Office of Hazardous

Materials Standards, RSPA, Department of Transportation, 400 Seventh

Street SW, Washington, DC 20590-0001, Telephone (202) 366-4488 or

Charles Holtman, Office of the Chief Counsel, RSPA, Department of

Transportation, 400 Seventh Street SW, Washington, DC 20590-0001,

Telephone (202) 366-4400.

SUPPLEMENTARY INFORMATION:

I. Background

On June 20, 1994 (59 FR 31822), RSPA amended the Hazardous

Materials Regulations (HMR), 49 CFR parts 171-180, by revising the

``List of Hazardous Substances and Reportable Quantities,'' an Appendix

to the Hazardous Materials Table at 49 CFR 172.101. The rule added 15

hazardous substances to the Appendix and, for 34 other hazardous

substances, reduced the ``Reportable Quantity'' (RQ), the amount of a

hazardous substance in a single package that, under 49 CFR 171.8,

subjects it to regulation under the HMR.

The rule implements the mandate under section 306(a) of the

Comprehensive Environmental Response, Compensation and Liability Act of

1980 (CERCLA), 42 U.S.C. 9656(a). Section 9602(a) of CERCLA directs the

U.S. Environmental Protection Agency (EPA), through rulemaking, to: (1)

Designate as ``hazardous substances'' materials that ``when released

into the environment may present substantial danger to the public

health or welfare or the environment''; and (2) establish the RQ for

each hazardous substance. The RQ is the amount of a hazardous substance

that, if released, requires notification of the National Response

Center. 42 U.S.C. 9603(a). Section 9656(a) directs that each hazardous

substance designated by the EPA ``shall . . . at the time of such

listing or designation . . . be listed and regulated as a hazardous

material'' by the Secretary of Transportation under Federal hazardous

material transportation law (Federal hazmat law), 49 U.S.C. 5101 et

seq.

The Research and Special Programs Administration (RSPA) carries out

the rulemaking responsibilities of the Secretary of Transportation

under 49 U.S.C. 5101 et seq. RSPA's June 20, 1994 rule revised the HMR

to incorporate additional hazardous substance designations and RQ

modifications made by the EPA in five rulemakings between November 1990

and June 1993 (55 FR 46354, Nov. 2, 1990; 55 FR 50450, Dec. 6, 1990; 57

FR 37194, Aug. 18, 1992; 57 FR 47376, Oct. 15, 1992; 58 FR 35314, June

30, 1993).

The final rule was issued without public notice or an opportunity

for comment. The preamble stated:

In accordance with the Administrative Procedure Act, 5 U.S.C.

553(b)(3)(B), RSPA has determined that a notice of proposed rulemaking

and an opportunity for public comment and review are impracticable and

unnecessary. [CERCLA] mandates that the Department of Transportation

list and regulate, as hazardous materials under 49 CFR Parts 171-180,

hazardous substances designated by the EPA under CERCLA. The EPA is the

sole agency authorized to designate hazardous substances and their

reportable quantities [RQ's]. Therefore, public comment and review are

unnecessary because: (1) The public was afforded time to comment when

the EPA published its notice of proposed rulemaking concerning that

agency's change in the subject RQ's; and (2) RSPA does not have the

authority to designate hazardous substances or determine their

reportable quantities.

A hazardous substance listed in the Appendix to 49 CFR 172.101 is

regulated under the HMR as a Class 9 hazardous material, when an amount

equal to or exceeding the RQ of the substance is transported in a

single package. 49 CFR 171.8. If the hazardous substance is in a

mixture or in solution, it is regulated only when the concentration of

the hazardous substance equals or exceeds a concentration that depends

on the RQ of the substance, as follows:

------------------------------------------------------------------------

Concentration

RQ, pounds (kilograms) (by weight

percent)

------------------------------------------------------------------------

5000(2270)............................................... 10

1000(454)................................................ 2

100(45.4)................................................ 0.2

10(4.54)................................................. 0.02

1(0.454)................................................. 0.002

------------------------------------------------------------------------

Id. A hazardous substance regulated under the HMR as a Class 9

material is subject to requirements governing packaging, shipping

papers, package marking and labelling, vehicle operation, employee

training and registration. See generally 49 CFR subpart 107.600;

subparts 172.100-172.700; 173.203-173.204; 173.240-173.241; part 177.

The rule is effective August 29, 1994.

II. The Petition for Reconsideration

Petitioners ASARCO, Inc., Cominco Ltd., Cyprus Climax Metals

Company, Magma Copper Company, Montana Resources, and Phelps Dodge

Mining Company, collectively, engage in the exploration, mining,

milling, smelting and refining of metals including copper, molybdenum

and zinc. In the course of their activity, petitioners offer for

transportation and transport significant quantities of copper,

molybdenum and zinc concentrates. Petitioners' concentrates contain

lead sulfide in a concentration between 0.001 and 2.0 percent.

Petitioners request reconsideration of the June 20, 1994 rule

because it incorporates the EPA's reduction of the lead sulfide RQ from

5,000 to 10 pounds (58 FR 35314, June 30, 1993), and thereby, through

operation of the Sec. 171.8 mixture rule, subjects to regulation under

the HMR certain of petitioners' copper, molybdenum and zinc

concentrates that until now have not been regulated.

Petitioners represent that the lead sulfide in the copper,

molybdenum and zinc concentrates is of low bioavailability\1\ and that

these concentrates currently are being shipped safely, and contend on

that basis that there is no need to regulate the concentrates as

hazardous materials. Petitioners cite several types of costs that they

will incur from designation of the concentrates as hazardous materials

and suggest that, contrary to RSPA's finding in the rule's preamble, 59

FR 31823, the economic impact of the rule is not minimal.

---------------------------------------------------------------------------

\1\According to EPA, ``bioavailability'' is ``the rate and

extent to which a substance is absorbed or otherwise assimilated

into body tissue following exposure by various routes, such as

ingestion.'' 58 FR 35318.

---------------------------------------------------------------------------

Petitioners assert that few U.S. ports accept bulk shipments of

concentrates, and that of those that do, many would not if the

concentrates were designated hazardous materials. Petitioners say they

have been informed by officials of the Port of Corpus Christi, Texas,

that the port no longer would accept bulk shipments of copper and zinc

concentrates, if designated as hazardous materials. Petitioners state

that if the rule is not modified to except their concentrates from the

hazardous material designation, they might need to ship the

concentrates through Canadian or Mexican ports, adding millions of

dollars annually to their shipping costs. Petitioners suggest that this

rerouting, by increasing the distances over which the concentrates are

shipped, would increase the risk of accident and release of these

materials. Petitioners also suggest that a decision by U.S. ports not

to handle these materials could result in job losses among port

workers.

Second, petitioners predict that concentrates designated as

hazardous materials would be subject to shipping surcharges and

shipping rate increases.

Third, petitioners cite the general costs of compliance with HMR

packaging, shipping paper, marking, labelling, placarding and employee

training requirements. (Note: As Class 9 materials, petitioners'

concentrates would not be required to be placarded in domestic

transportation. 49 CFR 172.504(f)(9).)

Finally, petitioners suggest that the rule is inconsistent with

international regulations that, according to petitioners, do not

subject the concentrates in question to similar regulation. This, say

petitioners, runs counter to RSPA's and DOT's policy to seek a uniform

global regulatory framework for hazardous material transportation.

Petitioners assert that the 42 U.S.C. 9656(a) mandate to list and

regulate hazardous substances as hazardous materials does not supersede

RSPA's delegated authority under 49 U.S.C. 5103 to designate as

hazardous materials those materials that ``in a particular amount and

form may pose an unreasonable risk to health and safety or property.''

Petitioners concede that Sec. 9656(a) requires RSPA both to designate

lead sulfide as a hazardous material and to recognize the 10-pound RQ

for lead sulfide established by the EPA, but assert that this directive

does not constrain RSPA's discretion to determine the threshold

concentration at which a particular mixture containing lead sulfide is

to be regulated as a hazardous material. Petitioners suggest that the

mixture table at 49 CFR 171.8 is a comparable exercise of discretion,

and that RSPA simply can modify the table in a way that excludes their

concentrates from a hazardous material designation.

Procedurally, petitioners take issue with RSPA's failure to provide

for public notice and comment before issuing the rule. They argue that

notice and comment was not ``impracticable'' since the rule was not

issued until a year after the EPA rule revising the RQ for lead

sulfide. They contend that comment was not ``unnecessary'' because: (1)

The opportunity to comment during the EPA rulemaking did not encompass

the transportation-related ramifications of the EPA action; and (2)

RSPA does have the statutory authority to decide what quantity and form

of materials in transportation may pose an unacceptable risk to health,

safety or property.

Petitioners request that RSPA modify the mixture table at 49 CFR

171.8 to provide that copper, molybdenum and zinc concentrates with

less than 10 percent lead sulfide by weight are not hazardous

materials. In the alternative, petitioners ask that the August 29, 1994

effective date of the rule be stayed, and that the docket be reopened

for public notice and comment.

III. Decision

The petition for reconsideration is denied. RSPA's statutory

authority under 42 U.S.C. 9656(a) to ``list[] and regulate[] as a

hazardous material'' each hazardous substance designated by the EPA

under 42 U.S.C. 9602(a) does not give RSPA the discretion to grant the

relief petitioners seek.

A. History of RSPA Hazardous Substance Regulation

RSPA first subjected hazardous substances to regulation as

hazardous materials in a May 22, 1980 final rule (45 FR 34560). This

rule, issued before CERCLA was enacted, was to assist the

transportation industry in complying with section 311(b)(5) of the

Federal Water Pollution Control Act (FWPCA), 33 U.S.C. 1321(b). Section

1321(b)(2), a forerunner to 42 U.S.C. 9602(a) that remains as an

independent EPA authority, directs the EPA Administrator to: (1)

Designate as a hazardous substance any material that, when discharged

to the navigable waters or contiguous zone, ``present[s] an imminent

and substantial danger to the public health or welfare''; and (2)

establish as the RQ for each hazardous substance the quantity of that

substance that, if discharged, ``may be harmful'' to the public health

or welfare or the environment. Section 1321(b)(5) requires the operator

of a facility from which a hazardous substance in excess of its RQ is

discharged to report the discharge to the National Response Center. The

statute imposes cleanup liability on the operator, and criminal and

civil penalties for failure to report the discharge. Motor vehicles and

rolling stock are ``facilities'' under the statute. 33 U.S.C.

1321(a)(10).

The 1980 RSPA rule sought to address transportation industry

concerns that a motor vehicle or train operator might be subject to

criminal penalties for failing to report a discharge without being

clearly on notice that the cargo included hazardous substances. 44 FR

10676-77 (Feb. 22, 1979) (notice of proposed rulemaking). The rule

amended the HMR to designate hazardous substances as hazardous

materials, to require that a hazardous substance be identified on the

shipping paper accompanying the package, and to impose a package

marking requirement. These measures were to ensure the operator's

awareness that a hazardous substance was on board. The rule also

specified general standards of integrity for the container in which the

hazardous substance is transported.

Because the FWPCA reporting requirement applies only to the

discharge of a hazardous substance in an amount that exceeds its RQ,

the rule limited the application of the HMR to hazardous substance

transportation in two ways that remain in the rule today. First, a

hazardous substance is a hazardous material, and therefore regulated

under the HMR, only when the hazardous substance is being transported

in an amount (in a single package) in excess of its RQ. 49 CFR 171.8.

Second, whether transportation of a hazardous substance in a mixture or

in solution is subject to the HMR as a hazardous material is determined

by the concentration of the hazardous substance in the mixture or

solution. Id. The minimum concentration subjecting the mixture or

solution to regulation as a hazardous material is proportional to the

RQ of the hazardous substance; the higher the RQ, the greater the

concentration of hazardous substance permitted before the material is

regulated. These two provisions are those to which petitioners point in

arguing that RSPA has the discretion to exclude copper, molybdenum and

zinc concentrates from the HMR.

CERCLA was enacted on December 11, 1980. Pub. L. 96-510, 94 Stat.

2767. The statute incorporates the FWPCA requirement to report a

release of a hazardous substance in excess of its RQ and the sanctions

for failing to do so. 42 U.S.C. 9603(a), 9603(b), 9609. It establishes,

for discharge reporting and other purposes, a broader definition of

``hazardous substance'' than that under 33 U.S.C. 1321(b)(2). The

definition includes hazardous substances designated by the EPA under 33

U.S.C. 1321(b)(2), but also specifies as hazardous substances materials

of environmental concern listed under the FWPCA at 33 U.S.C. 1317(a);

the Solid Waste Disposal Act at 42 U.S.C. 6921; the Clean Air Act at 42

U.S.C. 7412; and the Toxic Substances Control Act at 15 U.S.C. 2606. 42

U.S.C. 9601(14). Section 9602(a) of CERCLA, like 33 U.S.C. 1321(b)(2),

authorizes the EPA Administrator to: (1) Designate as a hazardous

substance any other material that, in the Administrator's judgment,

``may present substantial danger to the public health or welfare or the

environment'' if released; and (2) establish an RQ for that material.

Section 9602(b) assigns to those hazardous substances incorporated into

CERCLA from other Federal statutes a ``default'' RQ of one pound until

the EPA, through rulemaking, specifies a different RQ.

Section 9656(a) of CERCLA, as enacted, directed the Secretary of

Transportation as follows:

Each hazardous substance which is listed or designated as provided

in section 101(14) of this Act (42 U.S.C. 9601(14)) shall, within

ninety days after the date of enactment of this Act or at the time of

such listing or designation, whichever is later, be listed as a

hazardous material under the Hazardous Materials Transportation Act

(now codified at 49 U.S.C. 5101 et seq.).

With the enactment of CERCLA, the section 9601(14) definition

immediately added to the list of hazardous substances a number of

substances with a default RQ of one pound. On March 19, 1981 (46 FR

17738), RSPA issued a final rule to implement the section 9656(a)

directive. In the agency's judgment, regulating the transportation of a

single pound of many of the listed hazardous substances would not be

practical or cost-effective. To comply with the language of section

9656(a), RSPA listed these hazardous substances as hazardous materials,

but did not regulate them. In denying a subsequent petition for

reconsideration, RSPA explained its authority for listing but not

regulating:

[I]t was the intent of Congress in enacting [Sec. 9656] that, once

DOT has listed the materials subject to CERCLA as hazardous materials,

DOT retain [sic] the discretion provided by the Hazardous Materials

Transportation Act to determine whether, and to what extent, those

materials should be regulated.

46 FR 58086 (Nov. 30, 1981); see also 48 FR 35965, 35969 (Aug. 8,

1983) (advance notice of proposed rulemaking) (affirming RSPA's

discretion as to whether and how to regulate hazardous substances under

Federal hazmat law).

In response to RSPA's decision not to regulate certain hazardous

substances at a one-pound RQ, Congress amended section 9656(a) to

direct that hazardous substances, when designated by the EPA, be

``listed and regulated'' as hazardous materials. Pub. L. 99-499,

section 202 (Oct. 17, 1986) (emphasis added). This is the present

language of the statute.

In accordance with the amendment, RSPA issued a final rule on

November 21, 1986, subjecting all hazardous substances listed under 42

U.S.C. 9601(14) to the shipping paper, package marking and packaging

requirements applicable to hazardous substances under the 1980 rule.

The agency, citing its lack of discretion in complying with the

statutory mandate, found that public notice and comment were

unnecessary and issued the final rule directly.

As the EPA has designated additional hazardous substances or

changed the RQ for those already designated, RSPA, without public

notice or an opportunity for public comment, has issued final rules

incorporating those changes into the HMR. The present rule is the

fourth of these (see preceding rules at 54 FR 34666, Aug. 21, 1989; 54

FR 39500, Sept. 26, 1989; 55 FR 46794, Nov. 7, 1990). With the

exception of training and registration requirements established by

statute for hazardous materials as a whole, the HMR requirements that

apply to the bulk transportation of hazardous substances designated as

hazardous materials have not changed substantially since 1980.

B. RSPA Discretion To Regulate Hazardous Substances

RSPA's discretion in implementing 42 U.S.C. 9656(a) is limited in

two important respects.

First, the directive to ``list and regulate'' each hazardous

substance as a hazardous material requires RSPA, at the least, to

provide a regulatory framework to ensure that a motor vehicle or train

operator has a means to know when the cargo includes a reportable

quantity of a hazardous substance. As discussed above, RSPA's May 1980

rule, subjecting hazardous substance transportation to hazardous

material shipping paper and package marking requirements, was issued to

this end in order to implement FWPCA discharge reporting requirements.

Seven months later, Congress enacted CERCLA, essentially incorporating

the FWPCA hazardous substance discharge reporting requirement.

Furthermore, the CERCLA legislative history reveals a congressional

intent to adopt and enhance the FWPCA framework for preventing and

mitigating oil and hazardous substance spills. See generally H.Rep. 96-

1016(II), 1980 USCCAN 6151, 6160-6223 (incorporating H.Rep. 96-172).

Therefore, RSPA reads section 9656(a) to have codified the basic

purpose of the RSPA rule, that of providing carriers the knowledge of

their cargo needed to comply with CERCLA reporting requirements.

Accordingly, RSPA has no discretion to modify the HMR framework in a

way that undermines the operator notification function of the shipping

paper and marking requirements. Congress' 1986 amendment to require

both listing and regulation of EPA-designated hazardous substances is

further evidence of RSPA's limited discretion.

Second, the regulatory framework under Federal hazmat law

historically has been oriented toward those materials that, in

transportation, present immediate hazards to public health, safety and

property by virtue of qualities such as explosivity, flammability,

reactivity, acute toxicity, radioactivity and corrosivity. RSPA, in

coordination with the Department of Transportation (DOT) modal

administrations (Federal Highway Administration, Federal Railroad

Administration, United States Coast Guard, and Federal Aviation

Administration), possesses the expertise and the resources to assess

the physical and chemical properties of materials in transportation; to

weigh the costs and benefits of proposed regulations; and to make

considered regulatory judgments.

RSPA exercises its discretion more narrowly in regulating materials

that may pose longer-term harm to humans or other animals, or harm to

the environment. As RSPA noted in 1980, in its first notice of proposed

rulemaking to regulate hazardous substances as hazardous materials:

DOT should not attempt to develop the criteria for materials that

are subject to the FWPCA unless they fall within the realm of the

existing defining criteria for materials presently designated as

hazardous materials. (RSPA) believes the EPA has both the expertise and

the technical resources necessary to deal with the determination and

designation of those materials which should be considered for inclusion

in the reporting requirement mandated by the FWPCA.

44 FR 10677.

The assignment of authority under the FWPCA and CERCLA between DOT

and the EPA reflects the agencies' relative areas of expertise and

resources. Both 33 U.S.C. 1321(b)(2) and 42 U.S.C. 9602(a) direct the

EPA Administrator to designate as hazardous substances those materials

that may substantially endanger public health or the environment, and

to establish for each the RQ that determines which hazardous substance

releases must be reported. Both the decision to designate a material as

a hazardous substance and the choice of an RQ are matters for the

exercise of the EPA Administrator's broad discretion. The assignment to

RSPA under 42 U.S.C. 9656(a), conversely, is strictly confined: if the

EPA has designated a material as a hazardous substance, RSPA must list

it and regulate its transportation.

The rulemaking challenged by petitioners was preceded by a notice

and comment rulemaking in which the EPA affirmed its designation of

lead sulfide as a hazardous substance, and determined that on the basis

of chronic toxicity, the lead sulfide in petitioners' concentrates

warranted assignment of an RQ of 10 pounds. 58 FR 35316. If RSPA were

to consider petitioners' argument that the low bioavailability of the

lead sulfide in their concentrates justifies excepting the concentrates

from the hazardous material designation, the result would be untenable.

In every rulemaking under section 9656(a), RSPA would be required to

consider, on a cost-benefit basis, the appropriate level of Federal

hazmat regulation for each hazardous substance designated by the EPA

and the appropriateness of excluding certain forms of hazardous

substances from regulation entirely. Costs and benefits could not be

estimated without RSPA independently assessing the health and

environmental risks that a hazardous substance posed. The statute

cannot reasonably intend that each hazardous substance and RQ

designation, determined by the EPA through consideration of public

comment and the exercise of its own expert judgment, be subject to full

reconsideration by RSPA before it is incorporated into the HMR. This

reading would be contrary to the statutory recognition of agency

expertise and all notions of executive branch efficiency and

consistency.

RSPA does have discretion as to precisely how it regulates

hazardous substances in transportation. Regulation may be extensive or

minimal. Vehicle operating requirements, segregation requirements and

routing restrictions might be imposed, or shipping paper and package

notations might suffice. RSPA's task is to formulate a principle that

reconciles (1) the EPA's authority to adjudge public health and

environmental risk by designating hazardous substances and their RQ's

with (2) RSPA's inescapable discretion to determine the specific

requirements that apply to the transportation of each hazardous

substance.

The guiding principle is this: RSPA, in its discretion, may

prescribe reasonable requirements to govern the safe transportation of

hazardous substances, so long as those requirements do not, in effect,

revisit the EPA's assessment of health and environmental risks. In

practice, this means that RSPA may exercise discretion under 42 U.S.C.

9656(a) in three respects: (1) It may prescribe regulations for the

transportation of hazardous substances as a class; (2) it may regulate

differently hazardous substances with different RQ's; and (3) it may

regulate hazardous substances by class on the basis of shared

characteristics other than the degree of health or environmental risk

posed.

C. Petitioners' Substantive Claims

Petitioners contend that although RSPA must ``list and regulate''

all hazardous substances as hazardous materials, it has the discretion

to except copper, molybdenum and zinc concentrates from the hazardous

material designation. In support of this claim, petitioners suggest

that RSPA already has exercised this sort of discretion under 49 CFR

171.8, by: (1) Regulating hazardous substances only when transported in

excess of their RQ's; and (2) not regulating mixtures and solutions

containing a hazardous substance, when the hazardous substance is below

a specified concentration. Petitioners ask that RSPA merely amend the

rule governing mixtures and solutions to increase the concentration of

lead sulfide that must be present in their concentrates before they are

considered hazardous materials.

Petitioners argue that the exception from regulation for hazardous

substances in amounts below their RQ's and for those in mixtures or

solutions below the specified concentration proves that RSPA has the

discretion to disregard the 42 U.S.C. 9656(a) command to ``list and

regulate'' each hazardous substance. These exceptions, however, do not

contravene the statute, but implement it. As discussed above, the

primary purpose of section 9656(a) is to provide for identification of

cargo subject to CERCLA reporting requirements if released. There is no

need to regulate a hazardous substance being transported in an amount

below its RQ, because no reportable release could occur during

transportation. 42 U.S.C. 9603(b); cf. 33 U.S.C. 1321(b)(5). The

provision setting a minimum concentration for designating as a

hazardous material a hazardous substance in a mixture or in solution is

to simplify the operator's task of determining whether an RQ of a

hazardous substance is present. 45 FR 34569; 44 FR 10676-77.

Further, the statute requires reporting of a hazardous substance

release only when the release equals or exceeds the RQ of the

substance. 42 U.S.C. 9603(a). This is an implied finding that the

release of a limited quantity of a hazardous substance is of lesser

regulatory concern. Cf. 33 U.S.C. 1321(b)(4) (defining the RQ as the

quantity of a hazardous substance ``which may be harmful'' to the

public health or welfare or the environment).

Thus, the command to regulate the transportation of ``each

hazardous substance'' need not be read to require the regulation of

hazardous substances transported in any amount or concentration. In

view of the costs attending regulation, Sec. 9656(a) is best read to

require the regulation of hazardous substances in transportation only

in amounts that, if spilled, require notification of the National

Response Center. For shipments in a single package of 50,000 pounds or

less, the Sec. 171.8 rule for mixtures and solutions is a simple means

to determine that the lading does not amount to an RQ of a hazardous

substance. A small number of shipments of more than 50,000 pounds of a

hazardous substance in a mixture or in solution may be excluded from

regulation despite containing more than an RQ of the hazardous

substance. A regulation that implements a general statutory command,

however, cannot avoid some degree of both over- and underregulation. In

light of the operator liability concerns underpinning the Sec. 9656(a)

mandate, underregulation was remedied by the EPA's concurrence in the

rule, and its issuance of a notice that carriers complying with

reporting requirements in accordance with the RSPA rule would be deemed

to have met FWPCA reporting requirements. 45 FR 61617 (Sept. 17, 1980);

see also 45 FR 74642 (Nov. 10, 1980). The two limitations of 49 CFR

171.8 establish, directly or by approximation, a regulatory threshold

at the RQ, and are a reasoned interpretation of the 42 U.S.C. 9656(a)

mandate.

The EPA treats mixtures and solutions of a hazardous substance

differently under CERCLA than RSPA treats them under 49 CFR 171.8. See

40 CFR 302.6. RSPA's and the EPA's approaches differ not because RSPA

is second-guessing the EPA as to the health and environmental risks

posed by hazardous substances in mixture or solution, but because the

agencies simplified in different ways the operator's determination of

whether an RQ of a hazardous substance is present. Congress amended

Sec. 9656(a) in 1986 to correct RSPA's failure to regulate hazardous

substances with statutory one-pound RQ's, but did not take issue with

these two aspects of 49 CFR 171.8. This is further evidence that the

regulation is consistent with statutory intent.

With respect to the allocation of authority between RSPA and the

EPA, these two elements of Sec. 171.8 are consistent with the principle

set forth in section III.B, above. The RQ is the regulatory threshold

for all hazardous substances; the treatment of hazardous substance

mixtures and solutions makes distinctions only between hazardous

substances with different RQ's. Each element fully respects the EPA's

hazardous substance and RQ designations and its assessment of the

comparative health and environmental concerns of each hazardous

substance.

In contrast, the action that petitioners ask RSPA to take is not

within RSPA's discretion in either respect. Petitioners concede that

RSPA is obligated to list lead sulfide as a hazardous material with an

RQ of 10 pounds, but ask that certain lead sulfide mixtures be

designated as hazardous materials only at a concentration of 10 percent

or greater, while other lead sulfide mixtures, as well as other

mixtures containing a hazardous substance with an RQ of 10 pounds, are

hazardous materials at a hazardous substance concentration of 0.02

percent. Contrary to the section 9656(a) mandate, this would permit the

transportation of up to 500 times the RQ of lead sulfide in a single

packaging (more, if concentrates are transported in bulk in a quantity

above 50,000 pounds) without requiring identification of the lading as

a hazardous substance. Carriers nevertheless would remain subject to

the CERCLA reporting requirement, and to civil and criminal sanctions

for failing to comply with it. As well, it would convert the Sec. 171.8

mixture rule from a means to simplify the operator's computation of

whether an RQ is present to a means of disregarding the EPA's

conclusion, expressed in the designation of a 10-pound RQ, as to the

relative risks that lead sulfide poses to the public health and the

environment.

The foundation of petitioners' claim is that the lead sulfide in

their copper, molybdenum and zinc concentrates is not bioavailable, and

that these concentrates are being subjected to a regulatory regime not

warranted by the public health and environmental risk that they pose.

RSPA's discretion does not extend to excepting lead sulfide from the

hazardous material designation on the basis of its own assessment of

health and environmental risks. Petitioners' claim properly was before

the EPA during its rulemaking to consider adjusting the RQ for lead

sulfide. In that rulemaking, the issue of lead sulfide bioavailability

was directly raised by commenters and considered by the EPA. See

letters in EPA Docket 102RQ-31L from the American Mining Congress (July

7, 1992; document 3-22); Hecla Mining Company (June 17, 1992; document

3-6); Lead Industries Association (July 7, 1992; doc. 3-21); Charlotte

Biblow (July 7, 1992; doc. 3-13); EPA responses to comments at document

4-1 and 58 FR 35319-20. The EPA determined not to except petitioners'

form of lead sulfide from designation as a hazardous substance, and

assigned lead sulfide in all forms, including petitioners', an RQ of 10

pounds. 58 FR 35314. RSPA may not revisit the EPA's conclusion.

Petitioners argue that the 42 U.S.C. 9656(a) mandate does not

supersede RSPA's delegated authority to designate as hazardous

materials only those materials that ``in a particular amount and form

may pose an unreasonable risk to health and safety or property.'' 49

U.S.C. 5103. Petitioners are correct that RSPA's designation of a

hazardous material under Sec. 5103 must rest on a finding that the

material may pose the type and degree of risk stated. The authority to

make that finding carries with it a range of discretion, so that

ordinarily a rulemaking to designate a hazardous material under

Sec. 5103 requires public notice and an opportunity for comment.

Section 9656(a) of CERCLA, however, does not compel RSPA to designate

hazardous substances as hazardous materials under 49 U.S.C. 5103.

Rather, it imposes an independent, direct rulemaking mandate. Under a

section 9656(a) rulemaking, RSPA need not, and indeed may not, inquire

as to whether a particular hazardous substance, in a particular amount

and form, ``may pose an unreasonable risk to health and safety or

property.'' Section 9656(a) already has decided the substance's status

as a hazardous material.

As stated above, RSPA does have the authority under 42 U.S.C.

9656(a) to modify the set of HMR requirements applicable to hazardous

substances as a class. In a rulemaking to consider modifying the HMR,

RSPA would examine both the statutory purposes of the hazardous

material designation under section 9656(a) (e.g., providing a means for

motor vehicle and train operators to know that potentially they are

subject to CERCLA reporting requirements) and the costs and benefits of

regulatory alternatives. These options are not within the scope of this

rulemaking and, to the extent petitioners seek to avoid the hazardous

material designation entirely, would not provide petitioners the relief

they seek.

Petitioners do not document their claims as to the safe

transportation history of copper, molybdenum and zinc concentrates; the

limited public health and environmental risk of those concentrates; or

the consequences of the June 20, 1994 rule for, and significance of the

costs to, the mining industry. Further, it is not at all clear that the

bulk of petitioners' alleged costs, attributable to the voluntary

business decisions of private port operators, are cognizable in an

agency's consideration of the costs and benefits of its rules.

Regardless, because RSPA does not have the discretion to consider the

factual basis for petitioners' request, the lack of documentation and

the question of the status of petitioners' costs are not material.

D. Procedural Claims

Petitioners object to RSPA's failure to provide public notice and

an opportunity for comment before issuing the final rule. Specifically,

they challenge RSPA's finding, under 5 U.S.C. 553(b)(3)(B), that public

notice and comment were not required because notice and comment would

have been impractical and unnecessary.

Petitioners assert that because the rule was issued nearly a year

after the EPA rulemaking establishing the reduced lead sulfide RQ,

allowing for notice and comment would not have been impractical.

Section 9656(a) mandates that the RSPA final rule designating a

hazardous substance as a hazardous material be issued ``at the time''

that the EPA publishes the hazardous substance designation. It can be

argued that this language establishes the impracticality of public

notice and comment as a matter of law. Nevertheless, petitioners'

argument that an opportunity for public comment could have been

provided in this case certainly is correct. Regardless, public notice

and an opportunity for comment were not required because they were

unnecessary.

As elaborated above, RSPA, contrary to petitioners' argument, does

not have the authority in this rulemaking to decide, on the basis of

health and environmental effects, what quantities and forms of lead

sulfide should be designated as hazardous materials. Public comment was

unnecessary because it could not have changed the final rule.

IV. Extension of Effective Date

Petitioners indicate that it may be necessary to adjust shipping

arrangements for copper, molybdenum and zinc concentrates that as a

result of the rule will be designated as hazardous materials. The

effective date of that part of the rule that reduces the lead sulfide

RQ from 5,000 to 10 pounds is changed from August 29, 1994 to November

29, 1994, to allow petitioners sufficient time to make the necessary

arrangements and otherwise to prepare to comply with the rule. No other

regulated party has indicated that the August 29, 1994 effective date

poses a problem. Therefore, except with respect to the RQ reduction for

lead sulfide, the effective date of the rule remains August 29, 1994.

Dated: August 25, 1994.

D. K. Sharma,

Administrator.

[FR Doc. 94-21500 Filed 8-30-94; 8:45 am]

BILLING CODE 4910-60-P