Preemption Determination No. PD-15(R); Public Utilities Commission of Ohio, Requirements for Cargo Tanks

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

[Docket No. RSPA-97-2968 (PDA-17(R))]

Preemption Determination No. PD-15(R); Public Utilities

Commission of Ohio, Requirements for Cargo Tanks

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

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

Associate Administrator for Hazardous Materials Safety.

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

Corporation (TWC).

LOCAL LAWS AFFECTED: Ohio Admin. Code Sec. 4901:2-05-02.

APPLICABLE FEDERAL REQUIREMENTS: Federal hazardous material

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

Regulations (HMR), 49 CFR Parts 171-180.

MODES AFFECTED: Highway.

SUMMARY: Written requirements of the State of Ohio applicable to the

transportation of hazardous materials are consistent with the HMR.

There is insufficient evidence that the Public Utilities Commission of

Ohio (PUCO) has applied or enforced requirements governing the

transportation of hypochlorite solutions in any different manner than

provided in the HMR.

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief

Counsel, Research and Special Programs Administration, U.S. Department

of Transportation, Washington, DC 20590-0001 (Tel. No. 202-366-4400).

SUPPLEMENTARY INFORMATION:

I. Background

WECCO and TWC have applied for a determination that Federal

hazardous material transportation law, 49 U.S.C. 5101 et seq., preempts

certain requirements of the State of Ohio, enforced by PUCO, with

respect to cargo tank motor vehicles used to transport hypochlorite

solutions. According to WECCO and TWC, PUCO has brought enforcement

cases against these companies based on their use of a non-DOT

specification cargo tank motor vehicle to transport hypochlorite

solutions containing more than 5% but less than 16% available chlorine.

On October 10, 1997, RSPA published a notice in the Federal Register

inviting interested parties to submit comments on whether PUCO has

required the use of a DOT specification cargo tank motor vehicle for

transportation of hypochlorite solutions containing more than 5% but

less than 16% available chlorine, after January 1, 1991. 62 FR 53049.

In that notice, RSPA also discussed the separate assertions by

WECCO and TWC that PUCO has required cargo tank motor vehicles built

under the MC 312 specification, that are unloaded at a pressure less

than 15 psig, to be (1) designed and constructed in accordance with the

ASME Code and (2) certified in some manner other than as specified in

the HMR. That notice referred to the absence of any statement by WECCO

and TWC that their trucks actually meet DOT's MC 312 specification;

rather they indicated that they applied specification plates to their

trucks to satisfy PUCO's alleged requirement for the use of a

specification cargo tank motor vehicle to transport sodium hypochlorite

with less than 16% available chlorine. As RSPA stated there:

the misrepresentation of any packaging as qualified for the

transportation of a hazardous material is a serious violation of

both 49 U.S.C. 5104(a) and the HMR, whether or not that packaging is

actually used for the transportation of hazardous materials.

However, because there is no evidence that PUCO has enforced design,

construction, and operational requirements for MC 312 specification

cargo tanks against these companies in any manner different from

that specified in the HMR, issues related to PUCO's assessment of

penalties for misrepresenting cargo tank motor vehicles as meeting

the MC 312 specification are not part of this proceeding.

62 FR at 53050.

In response to the October 10, 1997 public notice, PUCO and the

National Tank Truck Carriers, Inc. submitted comments in opposition to

the application. No comments were submitted by WECCO or TWC. No party

submitted rebuttal comments, although PUCO submitted a further letter

asking for a prompt dismissal of the application.

II. Federal Preemption

The Hazardous Materials Transportation Act (HMTA) was enacted in

1975 to give the Department of Transportation 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.'' Pub. L. 93-633 Section 102, 88 Stat. 2156, amended by Pub.

L. 103-272 and codified as revised in 49 U.S.C. 5101. 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, the HMTA was among the many Federal laws relating to

transportation that were revised, codified and enacted ``without

substantive change'' by Public Law 103-272, 108 Stat. 745. The Federal

hazardous material transportation law is now found in 49 U.S.C. Chapter

51.

A statutory provision for Federal preemption was central to the

HMTA. In 1974, 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 as well as conflicting

regulations in the area of hazardous materials transportation.'' S.

Rep. No. 1102, 93rd Cong. 2nd Sess. 37 (1974). More recently, a Federal

Court of Appeals 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,

[[Page 14966]]

951 F.2d 1571, 1575 (10th Cir. 1991). 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.

Following the 1990 amendments and the subsequent 1994 codification

of the Federal hazardous material transportation law, in the absence of

a waiver of preemption by DOT under 49 U.S.C. 5125(e), ``a requirement

of a State, political subdivision of a State, or Indian tribe'' is

explicitly preempted (unless it is authorized by another Federal law)

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.

49 U.S.C. 5125(a). These two paragraphs set forth the ``dual

compliance'' and ``obstacle'' criteria which RSPA had applied in

issuing inconsistency rulings before 1990. While advisory in nature,

these inconsistency rulings 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.'' Inconsistency Ruling (IR) No. 2, Rhode

Island Rules and Regulations Governing the Transportation of Liquefied

Natural Gas and Liquefied Propane Gas, etc. 44 FR 75566, 76657 (Dec.

20, 1979). 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).

In the 1990 amendments, Congress also confirmed that there is no

room for differences from Federal requirements in certain key matters

involving the transportation of hazardous material. As now codified, a

non-Federal requirement ``about any of the following subjects, that is

not substantively the same as a provision of this chapter or a

regulation prescribed under this chapter,'' 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.

(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, 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.

49 U.S.C. 5125(b)(1). RSPA has defined ``substantively the same'' to

mean ``conforms in every significant respect to the Federal

requirement. Editorial and other similar de minimis changes are

permitted.'' 49 CFR 107.202(d).

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. This

administrative determination replaced RSPA's process for issuing

inconsistency rulings. 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. Id.

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 of 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).

RSPA's authority to issue preemption determinations does not

provide a means for review or appeal of State enforcement proceedings,

not does RSPA consider any of the State's procedural requirements

applied in an enforcement proceedings. The filing of an application for

a preemption determination does not operate to stay a State enforcement

proceeding.

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.

12,612, entitled ``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

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.

III. Discussion

The State of Ohio has adopted (as State law) the requirements in

the HMR applicable to highway transportation of hazardous materials,

including hypochlorite solutions. Ohio Admin. Code 4901:2-05-02. Since

January 1, 1991, the HMR have provided that hypochlorite solutions

containing more than 5% but less than 16% available chlorine may be

transported in ``non-DOT specification cargo tank motor vehicles

suitable for transport of liquids'' and that also meet the general

requirements for bulk packagings set forth in 49 CFR 173.24 and

173.24b. 49 CFR 173.241(b); see also 172.101 (Hazardous Materials

Table). (At present, hypochlorite solutions up to 5% available chlorine

are not subject to the HMR. During a transition period that continued

until October 1, 1996, the HMR also authorized the transportation of

hypochlorite solutions containing up to 7% available chlorine by weight

transported in nonspecification cargo tanks that were ``free from leaks

and

[[Page 14967]]

[with] all discharge openings * * * securely closed during

transportation.'' 49 CFR 173.510 (1990 ed.))

Accordingly, the written requirements of the State of Ohio are

fully consistent with the HMR. The issue presented by the application

and supporting documents submitted by WECCO and TWC is whether PUCO is

applying and enforcing requirements for the transportation of

hypochlorite solutions in a manner different than provided in the HMR

and as adopted by Ohio. The documents submitted by WECCO and TWC,

including opinions and orders of PUCO, indicate the following:

1. On June 3 and September 26, 1991, PUCO inspected WECCO's truck

No. 88 and cited WECCO both times for several violations including

transporting hypochlorite solution in an unauthorized package.

2. At the time of PUCO's 1991 inspections, truck No. 88 did not

have any specification plate. Sometime thereafter, WECCO attached

specification plates to its three cargo tanks, including truck No. 88.

3. In its December 17, 1992 Opinion and Order relating to the 1991

citations, PUCO stated that, ``in order to be an authorized package for

the transportation of sodium hypochlorite under HMR 49 C.F.R.

173.277(a)(9), respondent's tank must be classified as an MC 310, MC

311, MC 312 or DOT 412 cargo tank.'' PUCO also found that truck No. 88

``has several design flaws which prevent it from qualifying under the

HMR as a specification MC 312 cargo tank.'' PUCO assessed a fine of

$11,470 against WECCO, which included $10,750 for violations of 49 CFR

173.277, transporting hazardous material in an unauthorized package and

willfully misrepresenting cargo tank certification. Of the total fine,

$5,000 was suspended for six months.

4. On June 22, 1993, PUCO inspected truck No. 88, which had been

transferred by WECCO to TWC, and cited TWC for eight violations

including leaking closures, transporting hypochlorite solution in an

unauthorized package, and misrepresenting that the package met the MC

312 specification. On PUCO's hazardous materials report form, the

contents of the cargo tank are indicated as ``Hypochlorite Solution, PG

III.''

5. On July 3, 1993, PUCO inspected TWC's truck No. 66 and cited TWC

for seven violations including leaking closures, transporting

hypochlorite solution in an unauthorized package, and misrepresenting

that the package met the MC 312 specification. On WECCO's shipping

paper attached to PUCO's hazardous materials report form, the

hypochlorite solution is classed within ``PG III.''

6. In its October 25, 1995 Opinion and Order relating to the 1993

citations, PUCO found that ``numerous defects for both cargo tanks

[Nos. 88 and 66] * * * preclude either from meeting the specifications

of an MC 312 cargo tank.'' PUCO also stated that whether or not TWC

``need[ed] an MC 312 certified cargo tank to haul sodium hypochlorite

solution of the concentration involved in these cases * * * is not an

issue before us and respondent has not been charged with any such

violation.'' PUCO assessed a total civil forfeiture of $14,290.50

against TWC for violations that included transporting hypochlorite

solution in unauthorized packages and in tanks misrepresented as

meeting MC 312 specifications, in violation of 49 CFR 173.33(a) and 49

CFR 171.2(c), respectively.

In its comments, PUCO states that ``this case presents no

preemption controversy.'' It summarizes its enforcement proceedings

against WECCO and TWC and states that these companies failed to appeal

the PUCO orders as provided by Ohio statutes. PUCO further denies that

it has ever required any carrier of hypochlorite solutions, between 5%

and 16% available chlorine, to use a DOT specification cargo tank motor

vehicle. According to an affidavit from the Chief of the Hazardous

Materials Division of PUCO's Transportation Department, a search of

data covering all commercial vehicle inspections since January 1, 1991

failed to reveal any other instance where PUCO had cited a carrier for

transporting Packing Group III hypochlorite solutions in an

unauthorized cargo tank motor vehicle. Rather, PUCO stresses that the

cargo tanks used by WECCO and TWC ``contained a number of design flaws

that rendered them unsuitable for hazardous materials carriage.''

PUCO asserts that the principal issue in these enforcement

proceedings was whether WECCO and TWC had misrepresented their cargo

tank motor vehicles as meeting the MC 312 specification. It states

that, in the proceedings that led to the December 17, 1992 Opinion and

Order, WECCO presented no evidence as to the level of available

chlorine in the sodium hypochlorite being transported. PUCO indicates

that its October 25, 1995 Opinion and Order found that TWC's tanks were

unauthorized because ``Leakage was again discovered at several points

along the tank's pressure and discharge system, and a strong chlorine

odor was observed by the Commission's field safety inspector.'' Both

PUCO and NTTC argue that WECCO and TWC have improperly invoked RSPA's

preemption determination process, and that the applicants' sole remedy

is to appeal the PUCO enforcement orders as provided by Ohio law rather

than to seek a determination from DOT.

Under all the information available in this case, it is unclear

whether PUCO's December 17, 1992 and October 25, 1995 Opinions and

Orders actually find that WECCO and TWC violated Ohio requirements by

transporting sodium hypochlorite with less than 16% available chlorine

in a non-DOT specification vehicle. Nonetheless, there is no evidence

that PUCO applies or enforces a general requirement for the use of a

DOT-specification cargo tank motor vehicle to transport hypochlorite

solutions with less than 16% available chlorine. If PUCO misinterpreted

or misapplied the HMR's requirements (as adopted in Ohio law) in the

specific enforcement proceedings involving WECCO and TWC, those parties

could have appealed the orders in those proceedings in accordance with

Ohio law. This is not a ground for a finding of preemption, especially

where (as here) the State's written requirement is identical to the

HMR. In PD-14(R), Houston, Texas Fire Code Requirements on the Storage,

Transportation, and Handling of Hazardous Materials, 63 FR 67506, 67510

n.4 (Dec. 7, 1998), petition for reconsideration pending, RSPA recently

reiterated that,

As a general matter, an inconsistent or erroneous interpretation

of a non-Federal regulation should be addressed in the appropriate

State or local forum, because ``isolated instances of improper

enforcement (e.g., misinterpretation of regulations) do not render

such provisions inconsistent'' with Federal hazardous material

transportation law. IR-31, Louisiana Statutes and Regulations on

Hazardous Materials Transportation, 55 FR 25572, 25584 (June 21,

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

in PD-4(R), California Requirements Applicable to Cargo Tanks

Transporting Flammable and Combustible Liquids, 58 FR 48940 (Sept.

20, 1993), decision on reconsideration, 60 FR 8800 (Feb. 15, 1995).

IV. Ruling

Written requirements of the State of Ohio applicable to the

transportation of hazardous materials are consistent with the HMR.

There is insufficient evidence that PUCO has applied or enforced

requirements governing the transportation of hypochlorite solutions in

any different manner than provided in the HMR.

[[Page 14968]]

V. Petition for Reconsideration/Judicial Review

In accordance with 49 CFR 107.211(a), ``[a]ny person aggrieved'' by

this decision may file a petition for reconsideration within 20 days of

publication of this decision in the Federal Register. Any party to this

proceeding may seek review of RSPA's decision ``in an appropriate

district court of the United States * * * not later than 60 days after

the decision becomes final.'' 49 U.S.C. 5125(f).

This decision will become RSPA's final decision 20 days after

publication in the Federal Register 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 this decision under

49 U.S.C. 5125(f).

If a petition for reconsideration of this decision is filed within

20 days of publication in the Federal Register, 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 March 23, 1999.

Alan I. Roberts,

Associate Administrator for Hazardous Materials Safety.

[FR Doc. 99-7654 Filed 3-26-99; 8:45 am]

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