Pipeline and Hazardous Materials Safety Administration

[[Page 8773]]

_______________________________________________________________________

Part II

Department of Transportation

_______________________________________________________________________

Research and Special Programs Administration

_______________________________________________________________________

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

[[Page 8774]]

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration
[Preemption Determination Nos. PD-8(R), PD-9(R), PD-10(R) and PD-11(R);
Docket Nos. PDA-9(R), PDA-7(R), PDA-10(R), and PDA-11(R), respectively]

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

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

ACTION: Administrative determinations of preemption by RSPA's Associate
Administrator for Hazardous Materials Safety.

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Applicants

Docket PDA-7(R)--HASA, Inc.
Dockets PDA-9(R), PDA-10(R), PDA-11(R)--Swimming Pool Chemical
Manufacturers' Association (SPCMA)

State and Local Laws Affected

PD-8(R) (Docket PDA-9(R))--

Chapter 6.95, California Health and Safety Code:

Sec. 25501.3
Sec. 25503.7

PD-9(R) (Docket PDA-7(R))--

Title 2 Los Angeles County Code:
Sec. 2.20.140
Sec. 2.20.150
Sec. 2.20.160
Sec. 2.20.170

Title 32 Los Angeles County Code:
Sec. 4.108.c.7

Table 4.108-A

Sec. 79.809 (b), (c) and (f)
Sec. 80.101(a) exception 1
Sec. 80.101(b)
Sec. 80.103(a)
Sec. 80.103(b)(1)
Sec. 80.103(b)(2)
Sec. 80.103 (c), (d) and (e)
Sec. 80.201
Sec. 80.202 (a) and (b)
Sec. 80.203
Appendix VI-A
Sec. 80.301(a)(2)
Sec. 80.301(b)(1)
Sec. 80.402(b)(3)(G)(i)
Sec. 80.402(c)(8)(A)

PD-10(R) (Docket PDA-10(R))--

Title 32 Los Angeles County Code:
Sec. 4.108(c)(8)
Sec. 9.105
Sec. 75.101
Sec. 75.103(a)
Table 75.103-A
Sec. 75.104
Sec. 75.105 (a) and (b)
Sec. 75.108
Sec. 75.205
Sec. 75.602 (a), (b) and (c)

PD-11(R) (Docket PDA-11(R))--

Title 32 Los Angeles County Code:
Sec. 4.108.c.7

Applicable Federal Requirements: Federal hazardous material
transportation law (Federal hazmat law), 49 U.S.C. 5101-5127, and the
Hazardous Materials Regulations (HMR), 49 CFR Parts 171-180.
Mode Affected: Rail.

SUMMARY: Due to a lack of information in the record, RSPA is unable to
make a preemption determination regarding:
(1) California Health and Safety Code (CHSC) Sec. 25503.7, which
states that hazardous materials contained in any rail car, rail tank
car or rail freight container at the same railroad facility or business
facility for more than 30 days is deemed stored and subject to the
requirements of the CHSC;
(2) Title 32 LACoC Secs. 80.103(e), which requires that hazardous
materials business plans, risk management prevention programs and
hazardous materials inventory statements be posted in an approved
location and available to emergency responders; and
(3) 80.301(b)(1), which requires that containers and tanks be
designed constructed in accordance with nationally recognized
standards.
(4) Title 32 LACoC Secs. 80.402(b)(3)(G)(i) and 80.402(c)(8)(A),
which require that cylinders or portable containers of compressed gas
be unloaded within a ventilated gas cabinet, laboratory fume hood,
exhausted enclosure or separate gas storage room.
The following non-Federal requirements are preempted by Federal
hazmat law:
(1) Title 2 Los Angeles County Code (LACoC) Secs. 2.20.140,
2.20.150, 2.20.160, and 2.20.170, to the extent that those provisions
levy a fee on tank car unloading activities. The fees collected under
those provisions are not used for purposes related to hazardous
material transportation;
(2) Title 32 LACoC Sec. 79.809(f) as applied and enforced by Los
Angeles County. Los Angeles County fails to recognize a Department of
Transportation (DOT or Department) exemption that authorizes HASA, Inc.
to employ alternative methods of compliance with certain Federal tank
car unloading requirements;
(3) Title 32 LACoC Sec. 79.809(c), which prohibits a tank car from
remaining on a siding at point of delivery for more than 24 hours while
connected for transfer operations, unless otherwise approved by the
fire chief. The unloading restriction is not ``substantively the same''
as Federal tank car unloading requirements.
Federal hazmat law does not preempt any other CHSC or LACoC
provision for which HASA and SPCMA request preemption determinations.

FOR FURTHER INFORMATION CONTACT: Nancy E. Machado, Office of the Chief
Counsel, Research and Special Programs Administration, U.S. Department
of Transportation, 400 Seventh Street SW., Washington DC 20590-0001,
telephone 202-366-4400.

SUPPLEMENTARY INFORMATION:

Document Outline

I. General Preamble

A. Procedural Summary
B. Background
C. California Statutory and Regulatory Requirements
D. Preemption Under Federal Hazmat Law
E. General Authority Under Federal Hazmat Law

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