FEDERAL HAZARDOUS MATERIALS FEDERAL HAZARDOUS MATERIALS

TRANSPORTATION LAW TRANSPORTATION LAW

an ove r vi ew o f th e

( Fe d e r a l h a z m a t l a w )

TABLE of CONTENTS

FEDERAL HAZARDOUS MATERIALS TRANSPORTATION LAW

(Federal hazmat law) .................................................................... 1

HAZARDOUS MATERIALS REGULATIONS ...................................... 1

REGULATORY FUNCTIONS ........................................................... 3

ENFORCEMENT ............................................................................ 4

STATUTORY PREEMPTION UNDER THE FEDERAL HAZARDOUS

MATERIALS LAW ............................................................................ 7

PUBLIC SECTOR TRAINING AND PLANNING GRANTS ................... 9

EMERGENCY RESPONSE ............................................................ 10

HAZMAT TRAINING SOURCES ........................................................ 11
FEDERAL HAZARDOUS MATERIALS TRANSPORTATION LAW

The Federal hazardous materials transportation law

(Federal hazmat law), 49 U.S.C. § 5101 et seq., (formerly

the Hazardous Materials Transportation Act, 49 App. U.S.C.

§ 1801 et seq.) is the basic statute regulating hazardous

materials transportation in the United States.

Congressional Purpose

The purpose of the law is to provide adequate protection

against the risks to life and property inherent in transporting

hazardous materials in commerce by improving the regulatory

and enforcement authority of the Secretary of Transportation.

REGULATORY AUTHORITY

The Secretary shall designate a material or a group or class of

materials as hazardous when the Secretary decides that transporting

the material in commerce in a particular amount and form may

pose an unreasonable risk to health and safety or property. The

Secretary shall issue regulations for the safe

transportation of hazardous materials.

HAZARDOUS MATERIALS REGULATIONS

(HMR; 49 CFR PARTS 171-180)

The HMR Covers Five Areas

l Hazardous materials definition/classification

(Part 172, Subparts A-B, Part 173);

l Hazard communication (Part 172, Subparts C-G);

l Packaging requirements (Parts 173, 178, 179, and 180);

l Operational rules (Parts 171, 173, 174, 175, 176 and 177); and

l Training (Part 172, Subpart H).

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Applicability

The HMR apply to interstate, intrastate and foreign

commerce. The HMR apply, under current regulations,

to transportation in commerce by aircraft, railcars, vessels,

and by motor vehicles operated by interstate carriers.

[After September 30, 1998, the HMR will apply to transportation

in commerce by any motor vehicle.]

The HMR also apply to intrastate motor carriers transporting:

l Hazardous wastes and hazardous substances (as

determined under statutes administered by and regulations

issued by the Environmental Protection Agency);

l Flammable cryogenic liquids in portable tanks and cargo tanks; and

l Marine Pollutants.

The HMR apply to persons who:

l Offer hazardous materials for interstate, foreign, and intrastate

transportation in commerce (shippers) except offering to intrastate

motor carriers generally is not regulated by the HMR until October 1,

1998;

l Transport hazardous materials in commerce (common, contract

and private carriers), except intrastate motor carriers generally are

not regulated until October 1, 1998;

l Offer or transport in commerce by any mode or carrier a

hazardous waste, hazardous substance, flammable cryogenic

liquid, or marine pollutant as described in the prior section;

l Manufacture, mark, maintain, recondition, repair or test packagings

and their components, which are represented as qualified for use

for hazardous materials.

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REGULATORY FUNCTIONS

Research and Special Programs Administration (RSPA)

RSPA issues the HMR. RSPA also has issued procedural

and registration regulations (49 CFR, Parts 106 and 107).

RSPAs regulatory functions include:

l Issuing rules and regulations governing the safe transportation of

hazardous materials;

l Issuing, renewing, modifying, and terminating exemptions;

l Issuing, modifying, and terminating approvals for specific activities;

l Receiving and maintaining important records (e.g., cylinder test

reports, certain manufacturer certifications, and incident reports);

and

l Making (or issuing) administrative determinations of whether State,

local, or Indian tribe requirements:

(1) are preempted by the Federal hazmat law, or

(2) may remain in effect, under a waiver of preemption.

l Representing DOT in international organizations and working to

assure the compatibility of domestic regulations with the regulations

of bodies such as:

- International Maritime Organization (IMO),

- International Civil Aviation Organization (ICAO),

- United Nations Economic Commission for Europe and

 Economic and Social Council (UNECEESC), and

- International Atomic Energy Agency (IAEA).

3
The Federal Highway Administration (FHWA)

FHWA regulatory functions for hazardous materials include: highway

routing of hazardous materials, and highway safety permits.

The United States Coast Guard (USCG)

USCG regulatory functions for hazardous materials

include bulk transport by vessel.

ENFORCEMENT

Under delegations from the Secretary (49 CFR Part 1),

enforcement authority under the Federal hazmat law is

shared by RSPA and four modal administrations: FHWA,

USCG, Federal Railroad Administration (FRA) and

Federal Aviation Administration (FAA).

RSPA Enforcement Jurisdiction

RSPA has primary enforcement jurisdiction over container

manufacturers, reconditioners, and retesters (except with

respect to modal-specific bulk containers, which are the

responsibility of the applicable modal administration), and

a shared authority over shippers of hazardous materials.

FHWA Enforcement Jurisdiction

FHWA, through its Office of Motor Carrier Field Operations,

enforces all regulations applicable to motor carriers

(common, contract, and private) shippers by highway,

and manufacturers of cargo tanks.

FHWA enforces the Federal Motor Carrier Safety

Regulations (49 CFR Parts 390-397) and the hazardous

materials regulations. FHWA regulates highway routing

of hazardous materials and issues safety permits.

4
In 49 CFR Part 387, FHWA prescribes financial

responsibility levels for carriers of hazardous materials.

FRA Enforcement Jurisdiction

FRA enforces all regulations applicable to rail carriers, shippers

by rail, and manufacturers of tank cars. FRA also administers

Federal railroad safety laws (49 U.S.C. § 20101 et seq.). FRA

may issue orders to deal with dangers caused by the transportation

of hazardous materials over unsafe track or by unsafe rail carriers.

FAA Enforcement Jurisdiction

FAA enforces all regulations applicable to air carriers and

shippers by air. FAA is responsible for establishing procedures

for monitoring and enforcing regulations with respect to the

transportation of radioactive materials on passenger-carrying aircraft.

USCG Enforcement Jurisdiction

USCG enforces all regulations applicable to vessel carriers

and shippers by water.

Under the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.),

the USCG has been delegated authority to respond to discharges of oil

into United States waters. Under the Comprehensive Environmental

Response, Compensation and Liability Act (42 U.S.C. § 960 et seq.),

the USCG has been delegated authority, as the designated

On-Scene Coordinator, to respond to the release of hazardous

substances into the environment within the United States coastal zone.

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Enforcement Sanctions

The Federal hazmat law provides the following

enforcement sanctions:
Criminal Penalties

Criminal penalties for willful violations of up to

$500,000 and five years' imprisonment (49 U.S.C. § 5124):

Penalty Assessment Criteria

(1) nature and circumstances of violation,

(2) extent and gravity of violation,

(3) degree of respondents culpability,

(4) respondents history of prior violations,

(5) respondents ability to pay,

(6) effect of penalty on respondents ability

to stay in business, and

(7) such other matters as justice may require

(especially corrective actions).

Injunctive Relief

Injunctive relief (49 U.S.C. § 5122)

6

Compliance Orders

Compliance orders (49 U.S.C. § 5121)

Civil Penalties

Civil penalties for knowingly violating regulations (49 U.S.C. § 5123):

l A minimum penalty of $250 per violation;

 l A maximum assessment of $27,500 per violation per day

Note: Container manufacturing penalties are limited to

$27,500 per violation.
Hearings

Formal administrative hearings on the record are

not required by the Federal hazmat law, but are available

at the option of the alleged violator.

STATUTORY PREEMPTION

The Federal hazmat law, at 49 U.S.C. § 5125, and the HMR

at 49 C.F.R. Part 107 Subpart C, provide that, unless

authorized by another Federal law, any requirement

of a State, local or Indian tribe is preempted if:

 l Compliance with both (1) the State, local, or Indian tribe

requirement, and (2) any requirement of the Federal hazmat law

(or of a regulation issued under the Federal hazmat law) is not

possible; or

 l The State, local, or Indian tribe requirement as applied or

enforced is an obstacle to accomplishing and carrying

out the Federal hazmat law (or a regulation issued

under it); or

 l The State, local, or Indian tribe requirement concerns a covered

subject and is NOT "substantively the same as any provision of,

or a regulation under, the Federal hazmat law concerning that

subject.

Covered subjects are:

 l Designation, description, and classification of hazardous materials;

 l Packing, repacking, handling, labeling, marking, and placarding of

hazardous materials;

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 l Preparation, execution, and use of shipping documents pertaining

to hazardous materials and requirements related to the number,

content, and placement of such documents;

 l Written notification, recording and reporting of the unintentional

release in transportation of hazardous materials; and
Section 5125(c) of 49 U.S.C. provides that, beginning two years

after issuance of Federal highway routing standards, State and

Indian tribe highway routing designations, limitations and

requirements relating to hazardous materials, will be preempted

unless they meet Federal procedural and substantive requirements.

FHWA has issued regulations and will issue preemption

determinations on highway routing of hazardous materials.

Waiver of Preemption

Waiver of preemption - Notwithstanding the preemption of

a State or local requirement, 49 U.S.C. § 5125(e) provides

that the Department may waive preemption upon a showing by

the jurisdiction that its requirement:

l Affords an equal or greater level of protection to the public as is

afforded by the Federal requirement; and

 l Does not unreasonably burden commerce.

RSPA and FHWA may issue preemption determinations and

waiver of preemption determinations to address preemption

issues under the Federal hazmat law. Courts may review

the determinations.

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 l Designing, manufacturing, fabricating, marking, maintaining,

reconditioning, repairing, or testing of a package or container which

is represented, marked, certified, or sold as qualified for use in the

transportation of hazardous materials.

Note: Substantively the same means that the non-Federal

requirement conforms in every significant respect

to the Federal requirement. Editorial and other

similar changes are permitted.
PUBLIC SECTOR TRAINING AND PLANNING GRANTS

Training

The Federal hazmat law mandates (49 U.S.C. § 5107) that the

Secretary issue regulations which require hazardous materials

(hazmat) employers to train, test, and maintain training records for all

hazmat employees (49 CFR, Subpart H, §§ 172.700 - 172.704).

Training areas include the safe packaging, loading, unloading, handling,

storing and transporting of hazardous material and emergency

preparedness for responding to an incident involving the transportation of

hazardous materials.

Grants Program

Under amendments to the Federal hazmat law, DOT has an

enhanced role in emergency response planning and training. RSPA

manages a reimbursable grant program to enhance existing State

and local hazardous materials emergency response programs.

This program, authorized by 49 U.S.C. § 5116:

 l Enhances implementation of the Emergency Planning and

Community Right-to-Know Act of 1986 (EPCRA); and

 l Provides funds (75% pass-through to local governments) to

States and Indian tribes for planning and training for emergency

response to hazardous materials accidents and incidents.

 Under 49 U.S.C. § 5108, RSPA funds the grant program with

registration fees collected from certain transporters and

shippers of hazardous materials in commerce.

EMERGENCY RESPONSE

Incident Reporting

Carriers must report immediately by telephone certain more serious

transportation incidents (49 CFR § 171.15). For those and other less serious

incidents, a written report must be submitted to DOT (49 CFR § 171.16).

9
The carrier must notify the U.S. Coast Guard National Response Center

(NRC), [(800) 424-8802 or (202) 267-2675]. The NRC contacts

Departmental personnel and the National Transportation Safety Board

(NTSB), if the situation warrants.

The NRC is linked to CHEMTREC, a service operated by the Chemical Manu

facturers Association (CMA), which can provide detailed information on the

nature and action of most chemicals transported in the United States.

Emergency Response Partnerships

DOT supports State and local emergency response. The

Department encourages the growth of industry mutual

assistance programs which involve a strong industry

partnership with local government personnel responsible

for emergency response.

To enhance the effectiveness of emergency response along the

border, in 1996, RSPA and sister agencies in Canada and Mexico

jointly issued a North American Emergency Response Guidebook

which was published in three languages (English, French, and Spanish).

The emergency response guidebook cross-references

commodities listed in the Hazardous Materials Table by

proper shipping name and by ID#. The guidebook contains

specific guides which:

l Alert first responders to potential dangers arising from

the threat of fire, explosion or health hazards; and

l Recommend initial emergency actions regarding evacuation/

isolation of the affected area, firefighting, leaking containers,

spill containment and first aid.

The success of the guidebook is dependent on shipper and

carrier compliance with all hazard communication requirements

(i.e., shipping papers, labels, marking, placards, and

emergency response information). The Department

has distributed over 5 million copies of its guidebook to

first responders such as firefighters and police.

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The CMA in collaboration with DOT has developed

several programs which address emergency response:

1. Emergency response training through emergency

response team workshops;

2. A first responder videotape training program; and

3. CHEMNET, a mutual aid network of shippers and

for-hire contractors providing direct on-site

assistance, for chemical emergencies.

DOT has also funded demonstration projects in

various communities designed to increase State and local

involvement in planning and managing hazardous materials

emergency preparedness programs.

HAZMAT TRAINING SOURCES

Videos, training materials, fact sheets, newsletters and other safetyrelated information are available from U.S. DOT.

Obtain these materials from:

U.S. Department of Transportation

Research and Special Programs Administration

Office of Hazardous Materials Initiatives and Training

400 Seventh Street, S.W., DHM-51

Washington, DC 20590-0001

(202) 366-2301 FAX: (202) 366-7342

E-Mail: TRAINING@rspa.dot.gov

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New internet website, effective Dec. 1, 1997

http://hazmat.dot.gov

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Awareness, Compliance and Enforcement Training

U.S. Department of Transportation

Transportation Safety Institute

Hazardous Materials and Transportation Safety Division

715 S. Metropolitan, Suite 700, DTI-30

Oklahoma City, OK 73108-2057

(405) 949-0036/Ext. 374 FAX: (405) 231-4134

E-Mail: HAZMAT-TSI@mmacmail.jccbi.gov

Training is available through conferences, colleges, State/local Governments and private sources. Obtain this information from:

Hazardous Materials Information Exchange (HMIX)

Access the HMIX bulletin board through your computer:

 (708) 252-3275 or hmix.dis.anl.gov (146.137.100.54)

l Hazardous Materials INFO-LINE

(800) HMR49-22 [Nationwide]

 (467-4922)

(202) 366-4488 [Washington, DC]
http://hazmat.dot.gov

Have

you

crawled

our

new

website

yet?

U.S. Department of Transportation

Research and Special Programs Administration

Office of Hazardous Materials Safety

Effective Dec. 1, 1997

U.S. Department of Transportation

Research and Special Programs Administration

Hazardous Materials Safety