Houston, Texas, Fire Code Requirements on the Storage, Transportation, and Handling of Hazardous Materials

Federal RegisterDec 7, 1998

Ask Donna

What actually matters in this document.

Text

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

Preemption Determination No. PD-14(R) (Docket No. PDA-15(R))

Houston, Texas, Fire Code Requirements on the Storage,

Transportation, and Handling of Hazardous Materials

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

ACTION: Notice of administrative determination of preemption by RSPA's

Associate Administrator for Hazardous Materials Safety.

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

APPLICANT: Association of Waste Hazardous Materials Transporters

(AWHMT).

LOCAL LAWS AFFECTED: Houston, Texas, Ordinance No. 96-1249 adopting the

1994 Uniform Fire Code with certain modifications.

APPLICABLE FEDERAL REQUIREMENTS: Federal hazardous material

transportation law, 49 U.S.C. 5101 et seq., and the Hazardous Materials

Regulations (HMR), 40 CFR Parts 171-180.

MODES AFFECTED: Highway.

SUMMARY: The Houston Fire Code contains express exceptions for

flammable and combustible liquids and other hazardous materials when

being transported ``in accordance with'' DOT's regulations. For that

reason, the following requirements in the Houston Fire Code do not

apply, and are not preempted by Federal hazardous material

transportation law, when the transportation of flammable and

combustible liquids is subject to the requirements in the HMR: (1)

permits for the storage, handling, transportation, dispensing, mixing,

blending or using hazardous materials, including the definition of

``hazardous materials'' as part of these permit requirements; (2) the

design, construction, or operation of tank vehicles used for flammable

or combustible liquids; (3) physical bonding during loading of the

vehicle; (4) unattended parking of the vehicle; and (5) the service

rating of the fire extinguisher required to be carried on the vehicle.

RSPA denies the request in AWHMT's May 1997 comments to consider a

provision limiting the time for unloading flammable or combustible

liquids from rail tank cars after delivery, because that requirement is

unrelated to the issues raised in AWHMT's application.

FOR FURTHER INFORMATION CONTACT:

[[Page 67507]]

Frazer C. Hilder, 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:

I. Background

A. Application and Public Notices

In February 1996, AWHMT applied for an administrative determination

that Federal hazardous material transportation law preempts certain

provisions of the Fire Code of the City of Houston, Texas, as adopted

March 15, 1995, in Ordinance No. 95-279. At that time, the Houston Fire

Code consisted of the Uniform Fire Code (1991 edition) as modified in a

``Conversion Document.''

In its application, AWHMT stated that the challenged provisions

were being applied to tank vehicles that picked up or delivered

hazardous materials within the City of Houston (City) and involved: (1)

inspections and fees required to obtain an annual permit to store,

handle, transport, dispense or use hazardous materials (including

flammable and combustible liquids) in excess of specified amounts; (2)

the definition of ``hazardous materials''; and (3) additional

requirements applicable to tank vehicles used for flammable and

combustible liquids. AWHMT separately provided copies of citations

issued to operators of cargo tank motor vehicles for loading or

unloading corrosive materials within the City without the permit

required by the Houston Fire Code.

The test of AWHMT's application was published in the Federal

submit comments. 61 FR 11463. Comments were submitted by the Hazardous

Materials Advisory Council (HMAC), the National Tank Truck Carriers,

Inc. (NTTC), the Texas Tank Truck Carriers Association, Inc. (TTTC),

and the City. Rebuttal comments were submitted by AWHMT. In its

comments, the City stated that the Houston Fire Department would be

submitting the 1994 edition of the Uniform Fire Code to the Houston

City Council for adoption. According to the City, the revised version

of the Houston Fire Code would (1) make clear that the permit

requirements did not apply to over-the-road (or ``off-site'')

transportation of hazardous materials, and (2) modify some of the

requirements applicable to tank vehicles used for flammable or

combustible liquids.

In February 1997, the City provided a certified copy of Ordinance

No. 96-1249, approved by the Houston City Council on November 26, 1996,

which (among other matters) amended Ordinance No. 95-279 to adopt the

1994 edition of the Uniform Fire Code together with certain ``City of

Houston Amendments.'' Thereafter, RSPA published a notice in the

Federal Register reopening the comment period on AWHMT's application so

that interested parties could provide further information on the

current status of the challenged provisions in the Houston Fire Code,

and how those provisions are being applied or enforced in light of the

exceptions in the Houston Fire Code for ``[t]ransportation of flammable

and combustible liquids when in accordance with DOT regulations,'' and

``[o]ff-site hazardous materials transportation in accordance with DOT

requirements.'' 62 FR 17281, 17282 (April 9, 1997).

In the April 1997 notice, RSPA also invited interested parties to

comment on whether AWHMT's application raised issues concerning the

applicability of the HMR that should be considered (in addition to or

instead of action on AWHMT's application) in the rulemaking under

Docket No. HM-223, ``Applicability of the Hazardous Materials

Regulations to Loading, Unloading and Storage.'' See RSPA's Advance

Notice of Proposed Rulemaking, 61 FR 39522 (July 29, 1996), and Notices

of Meeting, 61 FR 49723 (Sept. 23, 1996) and 61 FR 53483 (Oct. 11,

1996). Further comments were submitted by the City, AWHMT, and TTTC.

The City and AWHMT also submitted rebuttal comments.

Althought the City has asked RSPA to postpone consideration of

AWHMT's application pending issuance of a final rule in HN-223, there

is no reason for deferral. The circumstances here are not comparable to

those in PDs 8(R)-11(R), California and Los Angeles County Requirements

Applicable to On-site Handling and Transportation of Hazardous

Materials, 60 FR 8774 (Feb. 15, 1995), where RSPA is deferring

consideration of petitions for reconsideration. Those proceedings,

which involve requirements in the Uniform Fire Code (as adopted by Los

Angeles County), raise issues of the applicability of the HMR as

applied to the ``on-site'' handling and transportation of hazardous

materials. In contrast, no party here disputes that the HMR apply to

carriers who pick up or deliver hazardous materials within the City for

``off-site'' transportation. The main issue in this case is whether the

Houston Fire Code applies to those carriers and their vehicles--not

whether the HMR apply.

AWHMT, the City, and other parties who submitted comments in this

proceeding are encouraged to participate fully in HM-223 because of the

relationship between the applicability of the HMR and the Uniform Fire

Code to transportation-related activities involving hazardous

materials.

B. The Challenged Houston Fire Code Requirements

At its outset, the 1994 Uniform Fire Code adopted in the City's

Ordinance No. 96-1249 states that it:

prescribes regulations consistent with nationally recognized good

practice for the safeguarding to a reasonable degree of life and

property from the hazards of fire and explosion arising from the

storage, handling and use of hazardous substances, materials and

devices, and from conditions hazardous to life and property in the

use or occupancy of buildings and premises.

Sec. 101.2 (``Scope''). The Uniform Fire Code includes ``general

provisions for safety'' (e.g., access and water supply, fire protection

equipment, emergency exists), as well as more specific requirements on

``special occupancy uses'' (e.g., places of assembly and shopping

malls, temporary structures, dry cleaners and lumber yards), ``special

processes'' (e.g., welding, organic coatings), and ``special

equipment'' (e.g., oil-burning equipment, drying ovens, refrigeration).

A separate part of the Uniform Fire Code covers ``special subjects,''

including flammable and combustible liquids (in Article 79) and

hazardous materials (in Article 80).

Within both Articles 79 and 80 (as well as Article 1) are

requirements for permits, and Article 79 contains additional provisions

concerning ``tank vehicles and vehicle operations'' relating to

flammable and combustible liquids. Because the categories of

``hazardous materials'' include flammable and combustible liquids, both

Articles 79 and 80 appear to apply to flammable and combustible

liquids. These articles of the Uniform Fire Code also contain several

exceptions, including the following in Sec. 7901.1.1:

Transportation of flammable and combustible liquids when in

accordance with DOT regulations on file with and approved by DOT.

And in Sec. 8001.1.1:

Off-site hazardous materials transportation in accordance with DOT

requirements.

To the above-quoted language in Sec. 8001.1.1, the City has added

that the exception also applies to ``other activities for which local

regulation is preempted by federal or state law.'' In the following

sections containing the

[[Page 67508]]

permit requirements challenged by AWHMT, the City of Houston Amendments

also state that, ``A permit is not required for any activity where the

requirement of local permits is preempted by federal or state law'':

Secs. 105.8.f.3, 108.5.h.1, 7901.3.1, 8001.3.1.

The provisions in the Houston Fire Code covered by AWHMT's

application relate to the following:

Permits. A permit is required to:

``Store, handle, transport, dispense, mix, blend or use

flammable or combustible liquids'' in excess of certain quantities

(Sec. 7901.3.1) and to ``. . . operate tank vehicles . . . and

similar facilities where flammable and combustible liquids are

producted, processed, transported, stored, dispensed or used'' (Sec.

105.8.f.3.3).

``Store, transport on site, dispense, use or handle hazardous

materials'' in excess of certain specified amounts (Sec. 105.8.h.1;

see also Sec. 8001.3.1 [``store, dispense, use or handle hazardous

material'']).

Before a permit is issued, the fire chief ``is authorized, but not

required, to inspect and approve the receptacles, vehicles, buildings,

devices, premises, storage spaces or areas to be used.'' Sec. 105.4.

The City charges a $175 fee ``for the permits and inspections''

applicable to flammable and combustible liquids and other hazardous

materials, and additional fees for an inspection performed ``outside of

regular hours.'' Secs. 106.1, 106.3.3, Table 106-A.

``Hazardous materials''. The classification and categories of

``hazardous materials,'' as regulated by the Houston Fire Code, are set

forth in Appendix VI-A, which states that these categories are based on

the regulations of the Department of Labor's Occupational Safety and

Health Administration (OSHA) in Title 29 of the CFR. See also Secs. 209

and 8001.1.2. The only relevance of the term ``hazardous materials'' to

this proceeding appears to be its use in the permit requirement in

Secs. 105.8h.1 and 8001.3.1.

Tank Vehicles. Among the requirements in Article 79 specifically

applicable to tank vehicles used for flammable or combustible liquids

are the following:

Sec. 7904.6.1. Tank vehicles shall be designed in accordance

with U.F.C. Standard 79.4 and Section 7904.6.

Sec. 7904.6.3.4. Bonding shall be in accordance with Section

7904.5.2.3 [which requires a metallic bond between the truck and the

fill stem or some part of the rack in electrical contact with the

fill stem, in order ``to prevent the accumulation of static charges

during truck-filling operations * * * through open domes * * *''].

Sec. 7904.6.5.2.1. Tank vehicles shall not be left unattended at

any time on residential streets, or within 500 feet (152.4 m) of a

residential area, apartment, or hotel complex, educational facility,

hospital or care facility. Tank vehicles shall not be left

unattended at any other place that would, in the opinion of the

chief, present an extreme life hazard.

Sec. 7904.6.7. Tank vehicles shall be equipped with a fire

extinguisher having a minimum rating of 2-A, 20-B:C. During

unloading of the tank vehicle, the fire extinguisher shall be out of

the carrying device on the vehicle and shall be 15 feet (4572 mm) or

more from the unloading valves.

In adopting the 1994 edition of the Uniform Fire Code, the City reduced

the number of fire extinguishers required on tank vehicles from two (in

former Sec. 79.1207) to one; it also eliminated a provision challenged

by AWHMT, requiring ``NO SMOKING'' and ``FLAMMABLE'' signs and other

identification on tank vehicles (former Sec. 79.1203(n)).

In its May 23, 1997 comments, AWHMT asked RSPA to consider an

additional requirement that rail tank cars containing flammable or

combustible liquids ``shall be unloaded as soon as possible after

arrival at point of delivery'' and within 24 hours of being connected

for transfer operations, unless otherwise approved by the fire chief.

Sec. 7904.5.4.3. AWHMT noted that the same tank car unloading

requirement in the Uniform Fire Code, as adopted by Los Angeles County,

was found to be preempted in PD-9(R), Los Angeles County Requirements

Applicable to the Transportation and Handling of Hazardous Materials on

Private Property, 60 FR 8774, 8783, 8788 (Feb. 15, 1995). Petitions for

reconsideration of that decision and the other determinations made in

PDs 8(R)-11(R) are being deferred pending RSPA's consideration of the

scope of the HMR in HM-223.

Unlike the challenge to the Los Angeles County requirements,

however, neither AWHMT nor any other party has submitted any

information as to how Sec. 7904.5.4.3 is being applied or whether there

are practical problems in complying with the 24-hour unloading

requirement. AWHMT itself acknowledged that the tank car unloading

requirement in Sec. 7904.5.4.3 applies to the recipient or consignee of

a shipment of hazardous materials in a tank car and, in this respect,

differs from the other ``requirements imposed on carriers and equipment

under the care, control and custody of carriers'' involved in AWHMT's

application.\1\

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

\1\ The City also points out that the current tank car unloading

requirement (in the 1994 Uniform Fire Code) is unchanged from the

requirement in Section 79.809(c) of the 1991 Uniform Fire Code and

could have been raised in AWHMT's application.

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

RSPA believes that the City and other parties who submitted

comments understood, as RSPA did, that AWHMT's application challenged

requirements in the Houston Fire Code only as applied to motor carriers

that pick up or deliver hazardous materials within the City. Indeed,

NTTC objected to ``the City's permit system [because] it involves only

cargo tank vehicles.'' In the absence of additional information, RSPA

cannot add to its prior discussion in PDs 8(R)-11(R) on this

requirement, and RSPA is denying AWHMT's belated request to consider

the 24-hour tank car unloading requirement because that requirement is

unrelated to the issues raised in AWHMT's application.

C. The HMR and Federal Preemption

Federal hazardous material transportation law and the MHR apply to

the transportation of hazardous materials in commerce.

``Transportation'' is defined as ``the movement of property and

loading, unloading, or storage incidental to the movement.'' 49 U.S.C.

5102(12). With respect to motor carriers, ground transportation is ``in

commerce'' when it takes place ``on, across, or along a public road,''

and the HMR ``apply to the ground transportation of hazardous material

on, across, or along a public road, including loading, unloading and

storage incidental to that transportation.'' PDs 8(R)-11(R), 60 FR at

8777.\2\ In the terminology used in PDs 8 (R)-11(R), the HMR

unquestionably apply to ``off-site'' transportation; the issues that

RSPA hopes to resolve in HM-223 concern the scope of ``transportation''

and the ``on-site'' activities to which the HMR apply.

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

\2\ As of October 1, 1998, the HMR apply to all transportation

of hazardous materials by motor vehicle. 49 CFR 171.1(a)(1).

Previously, intrastate motor carriers of hazardous materials other

than hazardous wastes, hazardous substances, marine pollutants, and

flammable cryogenic liquids in portable tanks and cargo tanks were

regulated only by similar requirements in State or local law (and

Texas has adopted the HMR as State law). Id.

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

The HMR do not contain requirements for permits, and regulations

have not yet been issued by DOT to implement the provisions of 49

U.S.C. 5109 regarding Federal motor carrier safety permits. In Part 173

of 49 CFR, the HMR contain specific rules for classifying hazardous

materials (in some cases differently than OSHA), and, at 49 CFR

172.101, there is a lengthy table listing the materials designated as

hazardous for the purpose of transportation.

[[Page 67509]]

The HMR include specifications for the construction of cargo tank

motor vehicles used to transport flammable liquids, see 49 CFR 178.345-

178.348, but authorize the use of nonspecification cargo tank motor

vehicles for the domestic highway transportation of combustible

liquids. 49 CFR 173.150(f). The HMR contain specific requirements for

physical bonding during the transfer of hazardous materials to or from

a cargo tank. 49 CFR 177.837(c). The HMR incorporate by reference

requirements in the Federal Motor Carrier Safety Regulations concerning

unattended parking of a motor vehicle containing hazardous materials,

49 CFR 397.5(c), and fire extinguishers on a power unit used to

transport hazardous materials. 49 CFR 393.95(a)(2)(i).\3\

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

\3\ As provided in 49 CFR 177.804, motor carriers of hazardous

materials ``and other persons subject to this subpart shall comply

with 49 CFR parts 390 through 397 (excluding Secs. 397.3 and 397.9)

to the extent those regulations apply.''

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

Strong Federal preemption is a central feature of Federal hazardous

material transportation law, contained in 49 U.S.C. 5101 et seq. (Which

codified and replaced the former Hazardous Materials Transportation Act

(HMTA), Pub. L. 93-633, 88 Stat. 2156, amended by Pub. L. 101-615, 104

Stat. 3244). In considering the HMTA, the Senate Commerce Committee

``endorse[d] the principle of preemption in order to preclude a

multiplicity of State and local regulations and the potential for

varying and conflicting regulations in the area of hazardous materials

transportation.'' S. Rep. No. 1102, 93rd Cong. 2nd Sess. 37 (1974).

When it amended the HMTA in 1990, Congress specifically found that:

(3) many States and localities have enacted laws and regulations

which vary from Federal laws and regulations pertaining to the

transportation of hazardous materials, thereby creating the

potential for unreasonable hazards in other jurisdictions and

confounding shippers and carriers which attempt to comply with

multiple and conflicting registration, permitting, routing,

notification, and other regulatory requirements,

(4) because of the potential risks to life, property, and the

environment posed by unintentional releases of hazardous materials,

consistency in laws and regulations governing the transportation of

hazardous materials is necessary and desirable,

(5) in order to achieve greater uniformity and to promote the

public health, welfare, and safety at all levels, Federal standards

for regulating the transportation of hazardous materials in

intrastate, interstate, and foreign commerce are necessary and

desirable.

Pub. L. 101-615 Sec. 2, 104 Stat. 3244. A Federal Court of Appeals has

found that uniformity was the ``linchpin'' in the design of the HMTA,

including the 1990 amendments which expanded the preemption provisions.

Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1575 (10th Cir.

1991).

Section 5125 of Title 49 U.S.C. contains several preemption

provisions that are relevant to AWHMT's application. Subsection (a)

provides that--in the absence of a waiver of preemption by DOT under

Sec. 5125(e) or specific authority in another Federal law--a

requirement of a State, political subdivision of a State, or Indian

tribe is preempted if:

(1) complying with a requirement of the State, political

subdivision or tribe and a requirement of this chapter or a

regulation issued under this chapter is not possible; or

(2) the requirement of the State, political subdivision, or

Indian tribe, as applied or enforced, is an obstacle to the

accomplishing and carrying out this chapter or a regulation

prescribed under this chapter.

These two paragraphs set forth the ``dual compliance'' and ``obstacle''

criteria which RSPA had applied in issuing inconsistency rulings prior

to 1990, under the original preemption provision in the HMTA. The dual

compliance and obstacle criteria are based on U.S. Supreme Court

decisions on preemption. Hines v. Davidowitz, 312 U.S. 52 (1941);

Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963); Ray

v. Atlantic Richfield, Inc., 435 U.S. 151 (1978).

Subsection (b)(1) of 49 U.S.C. 5125 provides that a non-Federal

requirement about any of the following subjects, that is not

``substantively the same as'' a provision of Federal hazardous material

transportation law or a regulation prescribed under that law, is

preempted unless it is authorized by another Federal law or DOT grants

a waiver of preemption:

(A) the designation, description, and classification of

hazardous material.

(B) the packing, repacking, handling, labeling, marking, and

placarding of hazardous material.

related to hazardous material and requirements related to the

number, contents, and placement of those documents.

(D) the written notification, recording, and reporting of the

unintentional release in transportation of hazardous material.

(E) the design, manufacturing, fabricating, marking,

maintenance, reconditioning, repairing, or testing of a packaging or

a container represented, marked, certified, or sold as qualified for

use in transporting hazardous material.

Subsection (g)(1) provides that a State, political subdivision, or

Indian tribe may

impose a fee related to transporting hazardous material only if the

fee is fair and used for a purpose relating to transporting

hazardous material, including enforcement and planning, developing,

and maintaining a capability for emergency response.

Under 49 U.S.C. 5125(d)(1), any directly affected person may apply

to the Secretary of Transportation for a determination whether a State,

political subdivision or Indian tribe requirement is preempted. The

Secretary of Transportation has delegated to RSPA the authority to make

determinations of preemption, except for those concerning highway

routing which have been delegated to FHWA. 49 CFR 1.53(b). Under RSPA's

regulations, preemption determinations are issued by RSPA's Associate

Administrator for Hazardous Materials Safety. 49 CFR 107.209(a).

Section 5125(d)(1) requires that notice of an application for a

preemption determination must be published in the Federal Register.

Following the receipt and consideration of written comments, RSPA

publishes its determination in the Federal Register. See 49 CFR

107.209(d). A short period of time is allowed for filing petitions for

reconsideration. 49 CFR 107.211. Any party to the proceeding may seek

judicial review in a Federal district court. 49 U.S.C. 5125(f).

Preemption determinations do not address issues of preemption

arising under the Commerce Clause of the Constitution or under statutes

other than the Federal hazardous material transportation law unless it

is necessary to do so in order to determine whether a requirement is

authorized by another Federal law. A State, local or Indian tribe

requirement is not authorized by another Federal law merely because it

is not preempted by another Federal statute. Colorado Pub. Util. Comm'n

v. Harmon, above, 951 F.2d at 1581 n.10.

In making preemption determinations under 49 U.S.C. 5125(d), RSPA

is guided by the principles and policy set forth in Executive Order No.

12612, entitled ``Federalism'' (52 FR 41685, Oct. 30, 1987). Section

4(a) of the Executive Order authorizes preemption of State laws only

when a statute contains an express preemption provision, there is other

firm and palpable evidence of Congressional intent to preempt, or the

exercise of State authority directly conflicts with the exercise of

Federal authority. Section 5125 contains express preemption provisions,

which RSPA has implemented through its regulations.

[[Page 67510]]

II. Discussion

The focus of the comments in this proceeding has been the

provisions in the Houston Fire Code for a permit--including the related

inspection and fee requirements--and their application to ``off-site''

transportation. RSPA has repeatedly found that a State or local permit

requirement is not per se preempted; rather, ``a permit itself is

inextricably tied to what is required in order to get it.'' IR-2, 44 FR

at 75570-71; see also IR-3, Boston Rules Governing Transportation of

Certain Hazardous Materials by Highway Within the City, 46 FR 18918,

18923 (Mar. 23, 1981), action on appeal, 47 FR 18457 (Apr. 29, 1982);

IR-20, Triborough Bridge and Tunnel Authority Regulations Governing

Transportation or Radioactive Materials and Explosives, 52 FR 24396,

24397 (June 30, 1987); and IR-28, City of San Jose, California,

Restrictions on Storage of Hazardous Materials, 55 FR 8884, 8890 (Mar.

8, 1990), appeal dismissed as moot, 57 FR 41165 (Sept. 9, 1992).

According to the initial comments submitted by the City and TTTC,

until the effective date of Ordinance No. 95-279, Houston had a simple,

straightforward exception: the City did not apply its fire code

requirements for permits or inspections to any tank truck that was

operated within the City for less than 30 days. Beginning in January

1996, however, TTTC noticed a significant increase in citations issued

to tank vehicles for failing to have the hazardous materials permit

required by Section 4.108 of the Houston Fire Code. According to TTTC,

the City was applying the Fire Code adopted in Ordinance No. 95-279 to

require a permit for every tank vehicle operating within the City that

was ``not on the hazardous material route or one of the main arteries

traveling through the Houston area, such as Highway 59.''

Although the exception for ``off-site hazardous materials

transportation in accordance with DOT requirements'' was contained in

former Sec. 80.101(a) of the 1991 edition of the Uniform Fire Code,

TTTC states that the City was interpreting the term ``off-site'' as

applying only to the designated hazardous materials routes and main

arteries through the City. Because the pick-up or delivery of any

material presumably takes place at a location off the designated

hazardous materials routes and main arteries, this interpretation of

``off-site'' meant that the City was applying its Fire Code

requirements to any vehicle that picked up or delivered hazardous

materials within the City--or stopped at a point off the designated

hazardous materials routes and main arteries for rest, fuel, food, or

other purposes. TTTC states that the term ``off-site'' should apply to

``vehicles making deliveries over-the-road'' and that these off-site

movements should be completely exempt from the permit and inspection

requirements under the Houston Fire Code adopted in Ordinance 96-1249.

TTTC contends that the Houston Fire Code should apply only to ``on-

site'' transportation, or when ``a vehicle is used exclusively on the

premises of a facility'' (emphasis in original).

TTTC states that, following AWHMT's application, the City appears

to have stopped applying its permit and inspection requirements to tank

vehicles that simply picked up or delivered hazardous materials within

the City. AWHMT states that it has no evidence ``that the City is

continuing to enforce its permit and other hazardous materials

requirements on motor carriers,'' although it believes that the

withholding of enforcement may be ``contingent on the outcome of this

proceeding.''

In the conclusion of its initial comments, the City stated that the

``express exceptions for DOT-regulated activities'' in Secs. 7901.1.1

and 8001.1.1 mean that ``the Fire Code should not be read as applicable

to over-the-road (off-site) transportation * * *'' The City elaborated

that ``permits will not be required for DOT-regulated activities''; the

``hazardous materials classifications [in the Houston Fire Code] * * *

are not applicable to activities regulated by the DOT''; and that

provisions in the Fire Code setting design and construction

requirements for tank vehicles apply only to ``off-road (or on-site)

transportation of flammable or combustible liquids not regulated by

DOT.''

In its more recent comments, the City now confirms that it does not

require permits, apply its definition of ``hazardous materials,'' or

apply its tank design requirements to vehicles ``meeting DOT

requirements.'' (The City also states that its ``30-calendar-day

requirement is no longer in effect.'') This clearly appears to be the

proper interpretation of the exceptions in Secs. 7901.1.1 and 8001.1.1,

which apply to the entire contents of Articles 79 and 80--not just the

permit requirements.

Although the City states that the provisions in Article 79

concerning physical bonding, unattended parking, and fire extinguishers

``are not affected by the [e]xceptions'' in Secs. 7901.1.1 and

8001.1.1, that conclusion is in direct conflict with the plain language

of these exceptions. It is not possible to read these exceptions as

applying to some, but not all, of the Houston Fire Code requirements on

flammable and combustible liquids (Article 79) and hazardous materials

(Article 80). If, because of these exceptions, the permit and

inspection requirements in these articles do not apply to a cargo tank

motor vehicle that is subject to regulation under the HMR, all the

other requirements in these articles (including those on physical

bonding, unattended parking, and fire extinguishers) also cannot apply.

In the absence of more detailed comments on these other requirements--

and specific information that the City is actually enforcing these

requirements against carriers that the City does not require to obtain

permits or undergo inspections--RSPA must assume that the City applies

the exceptions in Secs. 7901.1.1 and 8001.1.1 in a consistent

manner.\4\

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

\4\ As a general matter, an inconsistent or erroneous

interpretation of a non-Federal regulation should be addressed in

the appropriate State or local forum, because ``isolated instances

of improper enforcement (e.g., misinterpretation of regulations) do

not render such provisions inconsistent'' with Federal hazardous

material transportation law. IR-31, Louisiana Statutes and

Regulations on Hazardous Materials Transportation, 55 FR 25572,

25584 (June 21, 1990), appeal dismissed as moot, 57 FR 41165 (Sept.

9, 1992), quoted in PD-4 (R), California Requirements Applicable to

Cargo Tanks Transporting Flammable and Combustible Liquids, 58 FR

48940 (Sept. 20, 1993), decision on reconsideration, 60 FR 8800

(Feb. 15, 1995).

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

Because the City now correctly equates the exceptions in the

Houston Fire Code for vehicles ``meeting DOT requirements'' with

``subject to regulation by DOT'' under the HMR, AWHMT's challenges to

these requirements have become moot. Federal hazardous material

transportation law does not preempt non-Federal requirements that do

not apply to ``transportation in commerce.'' RSPA agrees with the

City's statements that, when it applies the Houston Fire Code to

``motor vehicles that are transporting hazardous materials exclusively

on private property,'' its local provisions are not preempted because

``transportation that takes place entirely on private property is not

transportation ``in commerce' '' Quoting from PD-9(R), 60 FR at 8785;