Pipeline and Hazardous Materials Safety Administration

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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration
[Preemption Determination No. PD-15(R); Docket No. RSPA-97-2968 (PDA- 17(R))]

Public Utilities Commission of Ohio Requirements for Cargo Tanks

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

ACTION: Decision on petition for reconsideration of administrative determination of preemption.

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

State 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: RSPA affirms its March 29, 1999 determination that 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 applied to RSPA for an administrative determination that Federal hazardous material transportation law preempts an alleged requirement of the State of Ohio, as supposedly applied and enforced by PUCO, with respect to cargo tank motor vehicles used to transport hypochlorite solutions. According to these two companies, PUCO brought enforcement cases against them based on their use of a non-DOT specification cargo tank motor vehicle to transport hypochlorite

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solutions containing more than 5% but less than 16% available chlorine. WECCO and TWC have not paid the total of almost $25,000 in civil penalties assessed by PUCO.
RSPA dismissed the first application submitted by WECCO and TWC. After considering additional information supplied by these companies in support of their second application, on October 10, 1997, RSPA published a notice in the Federal Register inviting interested parties to comment on these companies' application. 62 FR 53049. In response to that notice, PUCO and the National Tank Truck Carriers, Inc. (NTTC) submitted comments opposing the application of WECCO and TWC. The applicants did not submit further comments.
In its decision in Preemption Determination (PD) No. 15(R), published in the Federal Register on March 29, 1999, RSPA found that written requirements of the State of Ohio applicable to the transportation of hazardous materials are consistent with the HMR and that 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.'' 64 FR 14965, 14967. RSPA explained that WECCO and TWC could have appealed an individual misinterpretation or misapplication of the HMR's requirements in the PUCO enforcement proceedings and stated 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).

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), decision on petition for reconsideration, 64 FR 33949 (June 24, 1999), quoted from 64 FR 14967.
In Part II of its decision in PD-15(R), RSPA discussed the applicability of Federal hazardous material transportation law to the transportation of hazardous materials in commerce and the standards for making determinations of preemption. 64 FR 14965-66. As explained there, unless DOT grants a waiver or there is specific authority in another Federal law, a State (or other non-Federal) requirement is preempted if:

--It is not possible to comply with both the State requirement and a requirement in the Federal hazardous material transportation law or regulations;
--The State requirement, as applied or enforced, is an ``obstacle'' to accomplishing and carrying out the Federal hazardous material transportation law or regulations; or
--The State requirement concerns a ``covered subject'' and is not ``substantively the same as'' a provision in the Federal hazardous material transportation law or regulations. Among the five covered subjects are (1) ``the designation, description, and classification of hazardous material,'' and (2) the ``packing, repacking, handling, labeling, marking, and placarding of hazardous material.''

See 49 U.S.C. 5125 (a) & (b). These preemption provisions stem from congressional findings that State and local laws which vary from Federal hazardous material transportation requirements can create ``the potential for unreasonable hazards in other jurisdictions and confounding shippers and carriers which attempt to comply with multiple and conflicting . . . regulatory requirements,'' and that safety is advanced by ``consistency in laws and regulations governing the transportation of hazardous materials.'' Pub. L. 101-615 Sections 2(3) & 2(4), 104 Stat. 3244.
In PD-15(R), RSPA also explained its procedures for issuing preemption determinations and the rights to file a petition for reconsideration and/or judicial review. 63 FR at 67509, 67511.
Within the 20-day time period provided in 49 CFR 107.211(a), WECCO and TWC filed a petition for reconsideration of PD-15(R). These companies certified that they had mailed a copy of their petition to PUCO and NTTC, the only parties that had submitted comments. PUCO submitted comments on the City's petition for reconsideration.

II. Petition for Reconsideration

In their petition for reconsideration, WECCO and TWC acknowledge that the State of Ohio has adopted the Federal HMR verbatim. They argue that ``RSPA's ruling claim of `nsufficiency of evidence' is incomprehensible,'' and they present a lengthy list of complaints about the two enforcement proceedings brought against them. They assert such matters as

--The right of these companies to represent themselves ``pro se'' in the PUCO enforcement hearings;
--The failure of a PUCO commissioner to attend the PUCO enforcement hearings;
--An alleged failure of PUCO to serve a ``Notice of Apparent Violations;
--The preponderance of the evidence in the PUCO enforcement hearings and allegations that ``[t]he Department tampered with evidence and records while the [WECCO and TWC] trucks were impounded''; and
--The Ohio Governor and other State officials ``each became Party through malfeasance or misfeasance in office.''

The conclusion of these parties is that ``Ohio did enforce a variance and conflicting regulations against WECCO and TWC.'' They state that it would be ``wrong, immoral, and illegal'' for RSPA to ``violate law by supporting the Ohio Department's lawlessness.''
The petition for reconsideration submitted by WECCO and TWC contains the same arguments as previously considered by RSPA in PD- 15(R). These companies still have not provided any information or evidence that PUCO has generally enforced requirements concerning the transportation of hazardous materials in a manner inconsistent with the HMR. As PUCO states in its responding comments, the petition for reconsideration ``presents nothing new for RSPA's consideration and, instead, merely attempts to once again improperly invite RSPA to sit as an appeals court.''

III. Ruling

RSPA denies the petition for reconsideration filed by WECCO and TWC and affirms its March 29, 1999 determination that 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.

IV. Final Agency Action

In accordance with 49 CFR 107.211(d), this decision constitutes RSPA's final agency action on the application of WECCO and TWC for a determination of preemption as to requirements of the State of Ohio, as applied and enforced by PUCO, concerning the transportation of hypochlorite solutions in cargo tank motor vehicles.

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Issued in Washington, DC on August 9, 1999. Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 99-21019 Filed 8-12-99; 8:45 am]
BILLING CODE 4910-60-P