California and Los Angeles County Requirements Applicable to the On-site Handling and Transportation of Hazardous Materials

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 shal

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