[Federal Register Volume 60, Number 31 (Wednesday, February 15, 1995)]
[Notices]
[Pages 8774-8797]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3590]




[[Page 8773]]

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Part II





Department of Transportation





_______________________________________________________________________



Research and Special Programs Administration



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

Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / 
Notices 
[[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
II. Preemption Determinations
    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 planning and accident 
prevention requirements that are within the scope of SARA Title III and 
Sec. 112(r) of the CAA Amendments. There is insufficient information in 
the record to determine whether Federal hazmat law preempts 
Sec. 25503.7.
    Although SPCMA requests that RSPA review the remaining 63 
provisions of the CHSC in the event that RSPA does not preempt 
Sec. 25501.3 and Sec. 25503.7, this ruling does not address those 
provisions. There is no information in the record regarding how these 
provisions are actually applied and enforced or how SPCMA members are 
affected by these provisions.

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

Los Angeles County, California Requirements Applicable to the 
Transportation and Handling of Hazardous Materials on Private Property
Applicant: HASA, Inc.
Local Laws Affected:
    Los Angeles County Code (LACoC), Title 2:
    Sec. 2.20.140
    Sec. 2.20.150
    Sec. 2.20.160
    Sec. 2.20.170

    Title 32 LACoC:
    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)

    Summary: Federal hazardous material transportation law (Federal 
hazmat law), 49 U.S.C. 5101-5127, preempts the following provisions of 
LACoC Titles 2 and 32:
    (1) Title 2 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 materials 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) exemption that authorizes HASA, Inc. to employ 
alternative methods of compliance with certain Federal tank car 
unloading requirements; and
    (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 applicable to a tank car 
connected for transfer operations.
    Based on a lack of information in the record, the Research and 
Special Programs Administration (RSPA) is unable to determine whether 
Federal hazmat law preempts LACoC Title 32, Secs. 80.103(e), 
80.301(b)(1), 80.402(b)(3)(G)(i) and 80.402(c)(8)(A).
    Federal hazmat law does not preempt the following provisions of 
LACoC Title 32: Sec. 4.108.c.7, Table 4.108-A, Sec. 79.809(b), 
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), Sec. 80.103(d), 
Sec. 80.201, Secs. 80.202(a) and (b), Sec. 80.203, Appendix VI-A, and 
Sec. 80.301(a)(2).
1. Application for Preemption Determination
    HASA states that transportation of liquefied chlorine at its 
facility, including loading, unloading, and storage incidental thereto, 
is in accordance with: (1) Federal hazmat law; (2) HMR Part 174 (49 CFR 
Part 174); (3) the Chlorine Manual and related pamphlets published by 
the Chlorine Institute, Inc.; and (4) DOT Exemption E-10552, issued by 
RSPA. Nevertheless, HASA states that ``[o]ver the past year, HASA has 
been inspected numerous times by the county fire department and, as a 
result of these inspections, subsequently ordered to comply with the 
regulation[s] contained in the county fire code with respect to 'on-
site transportation' of hazardous materials.'' HASA states that it is 
the ``clear intent'' of Title 32 to regulate the on-site transportation 
of compressed gases.
    HASA explains that its application for an administrative 
determination is ``specific to the transportation, including loading, 
unloading, and storage incidental thereto, of liquefied chlorine in 
railroad tank cars at the Santa Clarita, California manufacturing 
facility of HASA, Inc.'' HASA requests a determination that:

    (1) Regulation of the transportation of chlorine in railroad 
tank cars, including loading, unloading, and storage incidental 
thereto at [its] facility in Santa Clarita, California, is exclusive 
to the Federal government pursuant to the [Federal hazmat law] and 
regulation[s] thereunder;
    (2) The term ``transportation,'' as defined [by Federal hazmat 
law], includes both ``on-site'' and ``off-site'' transportation of 
hazardous materials in commerce, including loading, unloading, and 
storage incidental thereto; and
    (3) [The Los Angeles County regulations at issue] are preempted 
by [Federal hazmat law] and regulations promulgated thereunder with 
respect to both ``off-site'' and ``on-site'' transportation of 
chlorine in railroad tank cars, including loading, unloading, and 
storage incidental thereto.

    In response to RSPA's January 26, 1993, Public Notice and 
Invitation to Comment, 58 FR 6176, which set forth the text of HASA's 
application, comments were submitted by the Chemical Waste 
Transportation Institute (CWTI), the Orange County Fire Department, the 
California Fire Chiefs' Association, the Chlorine Institute, Inc., the 
Los Angeles County District Attorney's Office, the County of Los 
Angeles Fire Department, and the County of Santa Barbara Environmental 
Health Services Department. Rebuttal comments were submitted by HASA 
and the Chlorine Institute, Inc.
    In response to RSPA's October 14, 1993, Public Notice re-opening 
the comment period in Docket PDA-7(R), comments were submitted by HASA 
and the County of Los Angeles Fire Department.
2. Discussion
    a. Fees. (1) LACoC Requirements. HASA challenges the following 
provisions of LACoC Title 2:
    Sec. 2.20.140 requires that every handler of hazardous materials 
pay an annual fee for the administration and enforcement of the 
provisions of California Health and Safety Code (CHSC) Chapter 6.95 
(commencing with Sec. 25500). Fees range from $110 annually for a minor 
handler of hazardous materials to $2,650 annually for a major handler 
of large volumes of hazardous materials. [[Page 8784]] 
    Sec. 2.20.150 requires every handler of acutely hazardous materials 
(AHM) to pay an additional annual fee to the county for the 
administration and enforcement of AHM registration, risk assessment, 
and risk mitigation. The fee is calculated according to a formula set 
forth in Sec. 2.20.150.
    Sec. 2.20.160 imposes a late submission fee on: (1) handlers of 
hazardous materials for failure to file the required hazardous 
materials business plan or inventory documents on a timely basis; and 
(2) handlers of AHM for failure to submit the required AHM registration 
documents on a timely basis.
    Sec. 2.20.170 sets out the formula for calculating annual 
adjustments to the schedule of fees contained in Sec. 2.20.140 through 
Sec. 2.20.160.
(2) HASA's Arguments and Summary of Comments
    HASA states that Secs. 2.20.140, 2.20.150, 2.20.160, and 2.20.170 
establish fees applicable to ``handlers'' of hazardous materials. HASA 
notes that Sec. 2.20.100(E) defines ``handler'' to mean ``any business 
which handles a hazardous material or acutely hazardous material.'' 
HASA asserts that ``handling'' is a transportation-related activity 
that is regulated under Federal hazmat law and the HMR.
    HASA indicates that fees paid by handlers of hazardous materials to 
the County of Los Angeles are used for the administration and 
enforcement of CHSC Chapter 6.95. HASA further states that the 
requirements under Chapter 6.95 (e.g., the preparation of hazardous 
materials business plans, inventories and risk management and 
prevention programs (RMPPs)) are not related to the transportation of 
hazardous materials. HASA concludes that Federal hazmat law preempts 
the collection of fees by Los Angeles County because the fees are not 
used for purposes relating to the transportation of hazardous material.
    The California Fire Chiefs' Association, the Los Angeles County 
District Attorney's Office and the County of Los Angeles Fire 
Department all acknowledge that the fees collected under LACoC Title 2 
are used to cover the cost of administering CHSC Chapter 6.95. The 
County of Los Angeles Fire Department states that Sec. 25513 and 
Sec. 25535.2 of Chapter 6.95 give the local agencies that administer 
Chapter 6.95 the authority to assess and collect fees in order to 
recover ``the cost to administer both the Risk Management and 
Prevention Program and the Hazardous Materials Release Response Plans 
and Inventory Program.''
(3) Analysis
    Federal hazmat law provides that:

    A State, political subdivision of a State, or Indian tribe may 
impose a fee related to transporting hazardous material only if the 
fee is fair and used for a purpose related to transporting hazardous 
material, including enforcement and planning, developing, and 
maintaining a capability for emergency response.

49 U.S.C. 5125(g) (emphasis added). Consequently, fees levied in 
connection with the transportation of hazardous materials must be 
equitable and used for a purpose related to the transportation of 
hazardous materials.
    LACoC Secs. 2.20.140, 2.20.150, 2.20.160, and 2.20.170 establish 
fees applicable to ``handlers'' of hazardous materials. Section 
2.20.100(E) defines ``handler'' to mean ``any business which handles a 
hazardous material or acutely hazardous material.'' ``Handle,'' as 
defined at Sec. 2.20.100(D), means--

    To use, generate, process, produce, package, treat, store, emit, 
discharge, or dispose of a hazardous or acutely hazardous material 
in any fashion and includes the use or potential use of a quantity 
of hazardous or acutely hazardous material by the connection of any 
marine vessel, tank vehicle, tank car or container to a system or 
process for any of the above purposes or activities.

    The County definition of ``handle'' under 2.20.100(D) includes a 
number of activities that are not regulated by Federal hazmat law and 
the HMR because they are outside the scope of transportation in 
commerce, i.e., the use, generation, processing, production, treatment, 
emission, discharge, and disposal of hazardous materials. The 
definition of ``handle'' also includes activities, i.e., packaging and 
storage, that are regulated by Federal hazmat law and the HMR only in 
certain instances. Specifically, the HMR apply to hazardous materials 
storage that is incidental to transportation in commerce, and the 
packaging of hazardous materials for transportation in commerce. The 
HMR do not apply to storage that is not incidental to transportation in 
commerce, or packaging of hazardous materials for purposes other than 
transportation in commerce. HASA does not assert, and the record does 
not reflect, that the term ``store,'' as used in Sec. 2.20.100(D), 
includes storage that is incidental to transportation in commerce, or 
that the term ``package'' as used in Sec. 2.20.100(D) includes the 
packaging of hazardous materials for transportation in commerce. 
Consequently, for purposes of this decision, RSPA assumes that the 
terms refer to activities that are not subject to the requirements of 
Federal hazmat law and the HMR.
    The definition of ``handle'' also includes the use or potential use 
of hazardous materials by the connection of a railroad tank car to a 
system or process. Tank car unloading is regulated under the HMR as 
incidental to transportation in commerce. 49 CFR 174.67. Consequently, 
any fee levied for unloading activities must be fair and used for a 
purpose related to transporting hazardous material.
    There is no assertion in the record that the fees are unfair. 
Furthermore, the participants in this proceeding agree that the fees 
are used to administer Chapter 6.95, which primarily concerns emergency 
response planning for hazardous materials no longer in transportation 
in commerce. Accordingly, the fees collected from facilities that 
engage in tank car unloading are not being used for ``a purpose related 
to transporting hazardous material.'' Therefore, 49 U.S.C. 5125(g) 
preempts Secs. 2.20.140, 2.20.150, 2.20.160 and 2.20.170 to the extent 
that those provisions levy a fee on facilities for tank car unloading 
activities. To the extent that they levy a fee for non-transportation 
activities, they are not preempted.
    b. Permits. (1) LACoC Requirements. HASA challenges the following 
provisions of LACoC Title 32:
    Sec. 4.108.c.7 and Table 4.108-A require a permit from the Bureau 
of Fire Prevention prior to engaging in the storage, on-site 
transportation, dispensing, use, or handling, at normal temperatures 
and pressures, of a compressed gas in excess of amounts specified in 
Table 4.108-A.
    Sec. 80.103(a) states that the permit requirement in Sec. 4.108.c.7 
applies to any person, firm or corporation that stores, dispenses, uses 
or handles hazardous material in excess of quantities specified in 
Sec. 4.108.
    Sec. 80.103(b)(1) requires that each permit application include a 
Hazardous Materials Business Plan (HMBP) that meets the requirements 
contained in LACoC Title 2, Chapter 2.20, Part 2. Title 2, 
Sec. 2.20.130 requires the applicant to follow the requirements of CHSC 
Chapter 6.95 when preparing an HMBP.
    Sec. 80.103(b)(2) states that, with respect to HMBPs, every 
business shall comply with the reporting requirements in LACoC Title 2, 
Chapter 2.20, Part 2.
    Sec. 80.103(c) states that each application for a permit shall 
include a hazardous materials inventory statement (HMIS) in accordance 
with LACoC Title 2, Chapter 2.20, Part 2. Section 2.20.130 of Title 2, 
Chapter 2.20, Part 2 requires the applicant to follow the requirements 
of CHSC Chapter 6.95 when preparing an HMIS. [[Page 8785]] 
    Sec. 80.103(d), entitled ``Risk Management and Prevention 
Program,'' (RMPP) requires that every business comply with the 
requirements of LACoC Title 2, Chapter 2.20, Part 2.
    Sec. 80.103(e) states that HMBPs, RMPPs and HMISs shall be posted 
in an approved location and immediately available to emergency 
responders. Further, the fire chief may require that the information be 
posted at the entrance to the occupancy or property.
(2) HASA's Arguments and Summary of Comments
    HASA states that Sec. 4.108.c.7 and Sec. 80.103(a) require any 
facility that stores, dispenses, uses or handles compressed gas in 
excess of quantities specified in Table 4.108-A to obtain a permit from 
the Bureau of Fire Prevention prior to engaging in the on-site storage, 
transportation, dispensing, use or handling of compressed gas in 
railroad tank cars.
    HASA indicates that Sec. 80.103(b) and Sec. 80.103(c) require that 
each permit application include an HMBP and HMIS that meet the 
requirements contained in LACoC Title 2, Chapter 2.20, Part 2. Section 
80.103(d) requires that, with respect to RMPPs, every business comply 
with the requirements of LACoC Title 2, Chapter 2.20, Part 2. LACoC 
Title 2, Chapter 2.20, Part 2 implements the administration and 
enforcement of CHSC Chapter 6.95, Articles 1 and 2. Permit applicants 
under the LACoC, therefore, must follow the requirements of CHSC 
Chapter 6.95 when preparing an HMBP, HMIS and RMPP. HASA asserts that--

    Requirements contained in Chapter 6.95 of the [CHSC] provide 
inter alia for written notification, recording, and reporting of the 
unintentional release of hazardous materials. These requirements are 
preempted [as covered subjects].

    HASA asserts that ``there is no assurance that a permit for `on-
site transportation' will be issued or that it will not be revoked for 
reasons unrelated to the transportation of hazardous materials. 
Business plans and risk management plans are not only subject to 
approval by the administering agencies, but such approval is subject to 
unspecified delays.''
    HASA believes that the LACoC requirement that a facility obtain a 
permit prior to engaging in the on-site storage, transportation, 
dispensing, use or handling of compressed gas is preempted because: (1) 
it applies to ``handling,'' which is a covered subject, and the 
requirement is not substantively the same as Federal regulations; (2) 
it applies to the ``on-site'' transportation of hazardous materials 
and, consequently, is an obstacle to accomplishing and carrying out 
Federal hazmat law and the HMR; and (3) it requires permit applicants 
to comply with the written notification, recording and reporting 
requirements pertaining to unintentional releases of hazardous 
materials contained in CHSC Chapter 6.95, as implemented by LACoC 
Titles 2 and 32, which HASA believes are preempted as covered subjects.
    In support of its position, HASA states that similar permit 
requirements have been found to be inconsistent with Federal hazmat law 
and the HMR, citing IR-28, City of San Jose, California; Restrictions 
on Storage of Hazardous Materials, 55 FR 8884 (Mar. 8, 1990), and 
Southern Pacific Transp. Co. v. Public Service Comm'n of Nevada, 909 
F.2d 352 (9th Cir. 1990).
    HASA does not discuss how Sec. 80.103(e), which requires that 
HMBPs, RMPPs and HMISs be posted in an approved location and 
immediately available to emergency responders, conflicts with the 
Federal hazmat law or the HMR.
    The Chlorine Institute, Inc. believes that Federal hazmat law 
preempts the LACoC permit requirements. It states that ``the permit 
requirement under section 4.108.c.7 of the [LACoC] is restrictive in 
that it requires an application, inspection and permit prior to 
unloading certain quantities of hazardous materials on private property 
regardless of whether the activity is in compliance with DOT regulation 
* * *. The permit process and requirements are not consistent with 
[Federal hazmat law] and DOT regulations.''
    The Los Angeles County District Attorney's Office and the County of 
Los Angeles Fire Department both oppose preemption of the permit 
requirements, stating that the requirements are not an obstacle to 
accomplishing and carrying out Federal hazmat law and the HMR.
(3) Analysis
    Permit requirements do not fall within any of the five covered 
subject areas enumerated in 49 U.S.C. 5125, described above in the 
General Preamble. They also do not, per se, make it impossible to 
comply with Federal hazmat law or HMR requirements, or create an 
obstacle to accomplishing and carrying out Federal hazmat law or the 
HMR. Whether or not a permit requirement is preempted depends on the 
steps required to obtain the permit. See IR-28, 55 FR 8884 (Mar. 8, 
1990); IR-20, 52 FR 24396 (June 30, 1987); IR-3 (Appeal), 47 FR 18457 
(Apr. 29, 1982); IR-2, 44 FR 75566 (Dec. 20, 1979); New Hampshire Motor 
Transport Ass'n v. Flynn, 751 F.2d 43 (1st Cir. 1984); Colorado Public 
Utilities Comm'n v. Harmon, CV 88-Z-1524 (D. Colo. 1989), rev'd on 
other grounds, 951 F.2d 1571 (10th Cir. 1991).
    First, HASA asserts that Los Angeles County's regulation of 
``handling,'' through the permit process, is preempted because handling 
is one of the five covered subject areas established under 49 U.S.C. 
5125. The LACoC permit requirements are Los Angeles County's response 
to the mandate in CHSC Sec. 25502 that ``every county shall implement 
this chapter as to the handling of hazardous materials in the county.'' 
The LACoC requires chemical manufacturers to obtain a permit ``prior to 
engaging in the storage, on-site transportation, dispensing, use or 
handling, at normal temperatures and pressures, of a compressed gas in 
excess of specified amounts.'' As part of the permit process under 
LACoC Title 32, facilities that handle hazardous materials must submit, 
to the County, an HMBP, HMIS and RMPP that meet the reporting 
requirements in LACoC Title 2. Title 2, Sec. 2.20.130 requires that 
these documents be prepared in accordance with the requirements set 
forth in CHSC Chapter 6.95.
    As discussed above in PD-8(R), Federal hazmat law does not preempt 
Chapter 6.95 requirements applicable to the handling of hazardous 
materials because they are otherwise authorized by Federal law, Title 
III of the Superfund Amendments and Reauthorization Act (SARA Title 
III), 42 U.S.C. Secs. 11001 et seq., and Sec. 112(r) of the Clean Air 
Act Amendments of 1990 (CAA Amendments), 42 U.S.C. 7412(r). As a 
result, the LACoC permit program, which implements the CHSC handling 
requirements, is not preempted because its underlying substantive 
requirements are ``otherwise authorized'' by SARA Title III and 
Sec. 112(r) of the CAA Amendments.
    Second, HASA asserts that Los Angeles County's permit requirements 
are preempted because they apply to the on-site transportation of 
hazardous materials at HASA's facility and, therefore, present an 
obstacle to accomplishing and carrying out Federal hazmat law. 
Transportation that takes place entirely on private property is not 
transportation ``in commerce.'' Federal hazmat law and the HMR do not 
apply to a consignee's transportation of hazardous materials solely 
within the gates of a private manufacturing facility. To the extent 
that the permit requirements under the LACoC provide that HASA must 
obtain a permit prior to transporting hazardous materials within its 
facility, the requirements do not apply to transportation in commerce 
[[Page 8786]] and are not preempted by Federal hazmat law. The holdings 
in Southern Pacific Transp. Co. v. Public Service Comm'n of Nevada and 
IR-28, which HASA relies on to support its argument in favor of 
preemption, are inapposite to the facts in this case. The holdings are 
based on local regulation of common carriers engaged in the 
transportation of hazardous materials in commerce.
    Finally, HASA asserts that permit applicants must comply with the 
reporting requirements of LACoC Title 2, Chapter 2.20, Part 2 and, by 
reference therein, CHSC Chapter 6.95, Articles 1 and 2. HASA asserts 
that Chapter 6.95 requirements include written notification, recording, 
and reporting of the unintentional release of hazardous materials. HASA 
argues that the written notification, recording and reporting 
requirements are preempted as covered subjects. HASA believes that the 
permit requirements are preempted to the extent they mandate compliance 
with Chapter 6.95 requirements regarding the reporting of unintentional 
releases of hazardous materials.
    HASA is correct that Federal hazmat law preempts any State or local 
requirement dealing with the ``written notification, recording, and 
reporting of the unintentional release in transportation of hazardous 
material,'' unless the requirement is substantively the same as the 
Federal requirement or otherwise authorized by Federal law. 49 U.S.C. 
5125(b)(1)(D) (emphasis added). However, HASA fails to identify in its 
application the sections of Chapter 6.95 that it believes are 
preempted, or even to set forth the text of those sections for RSPA's 
review and consideration. Consequently, RSPA cannot determine whether 
the permit requirements under the LACoC are preempted to the extent 
that they require compliance with unidentified provisions of LACoC 
Title 2, Chapter 2.20, Part 2 and, by reference therein, CHSC Chapter 
6.95.
    Nowhere does the record reflect that a permit actually is required 
in order for a facility to engage in storage, dispensing, use or 
handling of hazardous materials in excess of threshold quantities. In 
fact, HASA admits that it is not in compliance with LACoC requirements 
it believes are preempted, and information in the record seems to 
indicate that HASA has operated without a Sec. 4.108.c.7 permit for 
extended periods of time. To the extent that Los Angeles County has 
taken enforcement action against HASA, it appears that it has done so 
in an effort to persuade HASA to comply with the substantive permit 
application requirements (e.g., the hazardous materials inventory 
requirement). Consequently, to the extent that the Bureau of Fire 
Prevention has the authority to issue permits, that authority does not 
appear to have been enforced and applied to prevent facilities from 
storing and handling hazardous materials incidental to transportation. 
Therefore, the permit requirement does not violate the ``obstacle'' 
standard.
    For the reasons stated above, Federal hazmat law does not preempt 
the following sections of LACoC Title 32: Sec. 4.108.c.7, Table 4.108-
A, Sec. 80.103(a), Sec. 80.103(b)(1), Sec. 80.103(b)(2), and 
Secs. 80.103 (c) and (d). There is insufficient information in the 
record to determine whether Federal hazmat law preempts LACoC 
Sec. 80.103(e).
    c. Hazard Classification. (1) LACoC Requirements. HASA challenges 
the following provisions of LACoC Title 32:
    Sec. 80.101(a) exception 1 exempts the off-site transportation of 
hazardous materials from the classification system set forth in LACoC 
Article 80, if the transportation is in conformance with the HMR.
    Sec. 80.101(b) states that the classification system referenced at 
Secs. 80.202 and 80.203 applies to all hazardous materials, including 
those materials regulated elsewhere in the LACoC.
    Sec. 80.201 requires that hazardous materials be divided into 
hazard categories. The categories include materials regulated under 
LACoC Article 80 and materials regulated elsewhere in the LACoC.
    Sec. 80.202(a) classifies certain materials as physical hazards, 
including compressed gases, flammable liquids and combustible liquids. 
A material with a primary classification of ``physical hazard'' also 
can present a health hazard (as set forth below at Sec. 80.202(b)). 
Chlorine is listed, in Appendix VI-A to Title 32, as a toxic compressed 
gas that constitutes a physical hazard.
    Sec. 80.202(b) classifies certain materials as health hazards, 
including highly toxic or toxic materials. A material with a primary 
classification of ``health hazard'' also can present a physical hazard. 
Chlorine is listed, in Appendix VI-A to Title 32, as an example of a 
toxic compressed gas that constitutes a health hazard.
    Sec. 80.203 states that descriptions and examples of materials 
included in hazard categories are contained in Appendix VI-A to Title 
32.
    Appendix VI-A contains information, explanations and examples to 
illustrate and clarify the hazard categories contained in Division II 
of Article 80. The hazard categories are based on Occupational Safety 
and Health Administration (OSHA) standards set forth in the Code of 
Federal Regulations, Title 29. Where numerical classifications are 
included, they are in accordance with nationally recognized standards.
    (2) HASA's Arguments and Summary of Comments. HASA states that the 
classification system in the LACoC is different from and in addition to 
the hazardous materials classification system under Federal hazmat law 
and the HMR and, therefore, should be preempted as relating to a 
covered subject under 49 U.S.C. 5125(b)(1). HASA indicates that the 
classification system under the LACoC only applies to a facility's on-
site transportation of hazardous materials, and not to off-site 
transportation of hazardous materials conducted pursuant to the HMR. 
HASA provides several examples of how the LACoC classification system 
differs from that under the HMR.
    The Chlorine Institute, Inc. urges preemption of the LACoC 
classification system. It states that the classification requirements 
``define categories of hazardous materials that are not consistent with 
the DOT regulations shown in 49 CFR 173.2 * * *. Compliance with [both 
the LACoC and the HMR] would necessitate dual compliance for personnel 
handling and unloading a chlorine tank car on private property. The 
situation creates confusion and leads to errors in judgment.''
    CWTI believes that the classification system used under the LACoC 
is not preempted because it is otherwise authorized by Federal law, 
specifically the Occupational Safety and Health Act of 1970 (OSH Act), 
29 U.S.C. 651 et seq. CWTI states:

    In order to protect employees from the effects of hazardous 
chemicals in the workplace, OSHA implemented the hazardous 
communication standard (HCS) which requires employers to develop and 
implement a written hazard communication program, including lists of 
hazardous chemicals present, labeling of containers of chemicals in 
the workplace as well as of containers of chemicals being shipped to 
other workplaces that does not conflict with the HMTA, preparation 
and distribution of [Material Safety Data Sheets], and development 
and implementation of employee training programs regarding the 
hazards of chemicals and protective measures. (See 29 CFR 
1910.1200.) The hazardous materials classifications, `physical 
hazards' and `health hazards' referenced by HASA as required by the 
County are terms of classification used under the HCS. (See LA 
County Code 80.202 and 29 CFR 1910.1200(c)). Section 18 of the OSH 
Act provides that no state or political subdivision of a state may 
adopt or enforce * * * any requirements relating to the issue 
addressed [[Page 8787]] by the HCS, except pursuant to a federally-
approved state plan. California is a federally-approved state.

    CWTI also notes that Congress, during passage of the 1990 
amendments to the HMTA, recognized the authority of OSHA to regulate 
the storage of hazardous materials at consignee locations. 
Specifically, CWTI asserts that Congress directed OSHA, under authority 
of the OSH Act, to issue regulations requiring the retention of HMR 
markings, placards, and labels, and any other information as may be 
required by the HMR, on a package, container, motor vehicle, rail 
freight car, aircraft, or vessel until the hazardous materials have 
been removed. See P.L. 101-615, Sec. 29, 104 Stat. 3277.
    The County of Los Angeles Fire Department opposes preemption of the 
LACoC classification requirement, stating that the classification 
system required under Sec. 80.201 is based on the OSHA classification 
system at Title 29 CFR.
    (3) Analysis. The classification of hazardous materials for 
purposes of transportation in commerce is exclusive to the Federal 
Government. See 49 U.S.C. 5125(b)(1)(A). Federal hazmat law preempts 
State, local and Indian tribe requirements that are not substantively 
the same as the Federal classification requirements, or not otherwise 
authorized by Federal law. Id.
    The Department of Transportation has an exclusive role in defining 
hazard classes for materials that are offered or transported in 
commerce. The HMR classification system is used to determine the type 
of packagings that must be used to transport hazardous materials in 
commerce, and the applicable placarding, labeling and marking 
requirements necessary for that transportation. The HMR classification 
of hazardous materials does not apply to materials that are not in 
transportation in commerce. The movement of hazardous materials by a 
consignee exclusively on private property, for purposes related to a 
manufacturing process, is not transportation in commerce under Federal 
hazmat law.
    Section 80.101(a) exception 1 states that off-site hazardous 
materials transportation in accordance with DOT requirements is 
excepted from the requirements of LACoC Article 80 (which includes the 
classification system under Sec. 80.201, Sec. 80.202, Sec. 80.203 and 
Appendix VI-A). HASA does not dispute that the LACoC classification 
system applies only to HASA's on-site transportation of hazardous 
materials. Consequently, Federal hazmat law does not preempt the LACoC 
classification requirements, as they pertain to the on-site 
transportation of hazardous materials exclusively within a chemical 
manufacturing facility, because the LACoC requirements do not apply to 
hazardous materials that are in transportation in commerce.
    d. Storage. (1) LACoC Requirement. HASA challenges the following 
provision of LACoC Title 32:
    Sec. 80.301(a)(2) prohibits the use of tank vehicles and railroad 
tank cars as storage tanks.
    (2) HASA's Arguments and Summary of Comments.
    Section 80.301(a)(2) states that tank vehicles and railroad tank 
cars shall not be used as storage tanks. HASA argues that neither 
Federal hazmat law nor the HMR ``prohibit storage--incidental to 
transportation or otherwise--of hazardous materials in either tank 
vehicles or in tank cars.'' HASA states that 49 CFR 174.204(a)(2) 
specifically permits storage of specified gases on both private and 
carrier track. HASA notes that Sec. 174.204(a)(2) states, in part, 
``such cars may be stored on private track * * * or on carrier tracks 
designated by the carrier for such storage.'' HASA believes that the 
LACoC's prohibition of storage in tank vehicles and railroad tank cars 
is an obstacle to accomplishing and carrying out Federal hazmat law and 
the HMR, and should be preempted.
    No commenter addressed this issue specifically.
    (3) Analysis. HASA states that it receives railroad tank cars 
containing liquefied chlorine from manufacturers engaged in interstate 
commerce. HASA unloads the tank cars on a private siding adjacent to 
its facility. HASA asserts that Sec. 80.301(a)(2) prohibits it from 
storing hazardous material, for use in its manufacturing process, in 
the tank cars in which the material arrives at HASA's facility. There 
is no indication in the record that HASA stores hazardous materials in 
cargo tank motor vehicles, and there is no information in the record 
regarding how this requirement is applied and enforced when hazardous 
materials are stored in cargo tank motor vehicles.
    Federal hazmat law and the HMR apply to hazardous materials that 
are in transportation in commerce, and loading, unloading and storage 
that is incidental to that transportation. Federal hazmat law and the 
HMR do not apply to storage activities not incidental to 
transportation, such as storage activities at consignees' facilities. 
See IR-28, 55 FR 8884 (Mar. 8, 1990). As a result, hazardous materials 
that are stored at a manufacturing facility awaiting consumption in the 
manufacturing process are not stored incidental to transportation in 
commerce, and are beyond the reach of Federal hazmat law. Federal 
hazmat law, therefore, does not prevent Los Angeles County from 
prohibiting the use of tank cars for storage purposes, where that 
storage is not incidental to transportation in commerce.
    Section Sec. 174.204(a)(2) of the HMR, which HASA relies on to 
support the proposition that the HMR authorize a consignee to store 
hazardous materials in tank cars, is 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.
    Thus, Federal hazmat law does not preempt Sec. 80.301(a)(2).
    e. Unloading. (1) LACoC Requirements. HASA challenges the following 
provisions of LACoC Title 32:
    Sec. 80.301(a)(2) requires that containers, cylinders and tanks 
containing hazardous materials be unloaded in accordance with the 
requirements for flammable and combustible liquids at Sec. 79.809.
    Sec. 79.809(b) states that flammable and combustible liquids may be 
transferred from a tank car only into an approved atmospheric tank or 
approved portable tank.
    Sec. 79.809(c) states that, unless otherwise approved by the fire 
chief, a tank car may not remain on a siding at point of delivery for 
more than 24 hours while connected for transfer operations.
    Sec. 79.809(f) states that the operator or other competent person 
must be in attendance at all times while a tank car is discharging 
cargo.
    Sec. 80.402(c)(8)(A) states that when tank cars regulated by DOT 
are used outdoors, gas cabinets or a locally exhausted enclosure must 
be provided. Installation and design must be in accordance with the 
requirements of Title 32.
    Sec. 80.402(b)(3)(G)(i) states that when portable or stationary 
tanks are ``utilized in use or dispensing,'' they must be within a 
ventilated separate gas storage room or placed within an exhausted 
enclosure.
    (2) HASA's Arguments and Summary of Comments. Section 79.809 
addresses unloading operations for flammable and combustible liquids. 
Section 80.301(a)(2) makes the unloading requirements in Sec. 79.809 
applicable to the unloading of railroad tank cars containing hazardous 
materials regulated under Title 32. HASA states that ``many of the 
requirements in Sec. 79.809 are not only inappropriate but unsafe for 
unloading compressed and [[Page 8788]] liquefied gases, including 
chlorine.'' HASA offers, as examples, the requirements to transfer 
flammable and combustible materials only to an approved atmospheric 
tank or approved portable tank (Sec. 79.809(b)), the prohibition 
against remaining on a siding for more than 24 hours while connected 
for unloading operations (Sec. 70.809(c)), and the tank car unloading 
attendance requirement (Sec. 79.809(f)).
    HASA states that liquefied and nonliquefied compressed gases cannot 
be unloaded into a tank ``open to the atmosphere'' because they will no 
longer be contained or compressed. HASA, therefore, believes that this 
LACoC requirement conflicts with Federal hazmat law and the HMR and 
should be preempted.
    HASA further explains that liquefied gases, including chlorine, are 
unloaded ``under their own vapor pressure, at a finite rate,'' to 
prevent the liquefied gas remaining in the tank car from freezing as 
heat is withdrawn by gas vaporization. HASA maintains that liquefied 
chlorine gas has a normal unloading rate of 3,600 to 7,200 pounds per 
hour. HASA concludes that it takes between 25 and 50 hours to unload 
each tank car containing 90 tons of liquefied chlorine. As a result, 
HASA believes that the 24-hour time limit on unloading conflicts with 
Federal hazmat law and the HMR and should be preempted.
    HASA notes that 49 CFR 174.67 (i) and (j) pertain to tank car 
unloading. HASA applied for, and obtained from RSPA, an exemption (E-
10552) from the requirements in 174.67 (i) and (j), including the 
requirement that a person physically attend a tank car while cargo is 
discharged. HASA states that the local attendance requirement at 
Sec. 79.809(f) is similar to the Federal attendance requirement set out 
at 49 CFR 174.67(i). Nevertheless, HASA asserts that Los Angeles County 
refuses to recognize that HASA's exemption from Federal attendance 
requirements prevents the County from enforcing the local attendance 
requirement. Consequently, HASA asserts that Sec. 79.809(f) conflicts 
with E-10552 and should be preempted.
    HASA further requests a preemption determination regarding 
Sec. 80.402(b)(3)(G)(i) and Sec. 80.402(c)(8)(A), which it states 
require secondary containment for the ``use'' of railroad tank cars 
which contain highly toxic or toxic compressed gases. HASA states that 
``use'' is defined at LACoC Sec. 9.123 as ``the placing in action or 
making available for service by opening or connecting anything utilized 
for confinement of material whether a solid, liquid or gas.'' HASA 
contends that this definition of the term ``use'' encompasses the 
unloading of tank cars. HASA, therefore, alleges that tank car 
unloading must take place in accordance with Sec. 80.402(b)(3)(G)(i) 
and Sec. 80.402(c)(8)(A). HASA believes these requirements conflict 
with unloading requirements under Federal hazmat law and the HMR, and 
should be preempted.
    In summary, HASA asks RSPA to compare several aspects of the LACoC 
unloading requirements with (1) the general unloading requirements for 
tank cars set out at 49 CFR 174.67; (2) the specific unloading 
requirements for compressed gases in Title 49, Subpart F of the CFR (49 
CFR 174.200-174.204, 174.208, 174.280, and 174.290); and (3) the 
requirements in E-10522 with respect to chlorine.
    The Chlorine Institute supports preemption of LACoC Secs. 79.809, 
80.402(b)(3)(G)(i) and 80.402(c)(8)(A). It agrees with HASA's assertion 
that several requirements under these provisions are obstacles to 
accomplishing and carrying out HMR provisions regarding handling and 
unloading of chlorine tank cars on private property. Specifically, the 
Chlorine Institute supports preemption of: (1) the requirement that 
unloading be to an approved atmospheric tank only; (2) the prohibition 
against remaining on a siding for more than 24 hours while connected; 
(3) the requirement that someone physically attend the unloading 
process; and (4) the requirement for special unloading equipment. The 
Chlorine Institute believes that these LACoC requirements conflict with 
E-10552 and with 49 CFR 174.600, which it believes enable a tank car of 
chlorine to be received at a private siding with no maximum holding 
time.
    The County of Orange Fire Department, the County of Los Angeles 
Fire Department, and the California Fire Chiefs' Association do not 
agree with HASA that Secs. 79.809, 80.402(b)(3)(G)(i) and 
80.402(c)(8)(A) conflict with Federal hazmat law and the HMR. 
Consequently, they oppose preemption of those provisions.
    (3) Analysis. (a) Unloading to Storage Tanks. Section 80.301(a)(2) 
makes the unloading requirements for flammable and combustible liquids 
at Sec. 79.809(b) applicable to the unloading of tank cars containing 
hazardous materials. Section 79.809(b), which pertains to unloading to 
storage tanks, requires that flammable and combustible liquids be 
transferred from a tank car only into an approved atmospheric tank or 
approved portable tank. HASA states that it cannot comply with this 
requirement when unloading liquefied and nonliquefied compressed gases 
because those materials cannot be stored in a tank ``open to the 
atmosphere.'' HASA, therefore, asks that RSPA preempt this LACoC 
requirement. HASA does not indicate why storage in approved portable 
tanks is not possible. Furthermore, there is no evidence in the record 
that Los Angeles County has cited HASA for failure to comply with 
Sec. 79.809(b) while unloading compressed gases.
    Tank car unloading is not regulated under Section 79.809(b). 
Section 79.809(b) dictates the type of storage tanks that may be used 
when unloading a tank car. RSPA does not regulate consignee storage, 
including the types of containers used to store hazardous materials 
that are no longer in transportation in commerce. HASA's storage of 
hazardous materials at its facility, for use in its manufacturing 
process, is beyond the scope of Federal hazmat law and the HMR. 
Consequently, Federal hazmat law does not preempt LACoC Sec. 79.809(b), 
which applies to consignee storage.
    (b) 24-Hour Time Limit. Section 79.809(c) states that ``unless 
otherwise approved by the chief, a tank car shall not be allowed to 
remain on a siding at point of delivery for more than 24 hours while 
connected for transfer operations.'' HASA states that this restriction 
on the amount of time a tank car may remain connected for transfer 
operations should be preempted because there is no similar restriction 
under Federal hazmat law or the HMR.
    Certain consignee tank car unloading activities fall under the term 
``handling,'' a covered subject. Unless substantively the same as 
Federal regulation, or otherwise authorized by Federal law, non-Federal 
regulation of a covered subject area is preempted. Section 174.67 of 
the HMR applies to the mechanics of the tank car unloading process by 
dictating unloading procedures to be followed prior to, during and 
after unloading, e.g., brake requirements; posting of caution signs; 
procedures for breaking seals and removing manhole covers; prohibition 
against unloading connections remaining attached after unloading is 
completed or discontinued; attendance requirements. Nowhere do the HMR 
limit the amount of time a tank car may remain on a siding at point of 
delivery while connected for transfer operations. The 24-hour time 
restriction is not substantively the same as the Federal requirements 
and, therefore, is preempted by Sec. 5125(b)(1)(B) of Federal hazmat 
law, 49 U.S.C. 5125(b)(1)(B).
    Local time restrictions, if properly crafted, may serve a 
legitimate purpose. Under certain circumstances, however, time 
restrictions may not promote [[Page 8789]] safety. For example, time 
restrictions on tank car unloading may prompt a chemical manufacturing 
facility to unload tank cars at higher pressures, at greater risk, in 
order to expedite the unloading process. Also, facilities may be forced 
to discontinue unloading a tank car and to disconnect the transfer 
lines between the tank car and the storage receptacle, or manufacturing 
process, simply to meet the local time restriction. This results in the 
more frequent exposure of employees to product remaining in the 
disconnected lines.
    Consequently, a request for a waiver from preemption may be granted 
if it can be shown that a local time restriction provides an equal or 
greater level of protection to the public than the HMR, and does not 
unreasonably burden commerce.
    (c) Attendance. Section 79.809(f) requires that the operator or 
another competent person attend a tank car at all times while the tank 
car is discharging cargo. Tank car unloading is an aspect of 
``handling,'' a covered subject. Nevertheless, Sec. 79.809(f) is 
substantively the same as 49 CFR 174.67(i), which requires that a tank 
car be attended throughout the entire unloading process and, therefore, 
is not preempted except as it is applied and enforced.
    A consignee that unloads tank cars containing hazardous materials 
may obtain a DOT exemption from the Federal attendance requirement. The 
DOT exemption allows the consignee to use an alternative monitoring 
procedure. HASA holds such an exemption (E-10552). Specifically, E-
10552 permits HASA to use electronic surveillance to monitor tank car 
unloading, under certain conditions and restrictions, in lieu of a 
human observer at the unloading site.
    Exemptions from Federal hazmat law and HMR requirements are issued 
by the Associate Administrator for Hazardous Materials Safety pursuant 
to 49 U.S.C. 5117 and 49 CFR 107.101-107.123. Exemptions may be issued 
on a showing by the applicant that procedures it proposes to adopt will 
achieve a level of safety that is at least equal to that specified in 
the regulation from which the exemption is sought. See 49 U.S.C. 
5117(a)(1)(A). If the regulations do not specify a level of safety, the 
applicant must show that its proposed procedures will be consistent 
with the public interest. See 49 U.S.C. 5117(a)(1)(B).
    Exemption applications are published in the Federal Register, and 
all interested parties, including States, localities and Indian tribes, 
are invited to submit comments. Once issued, DOT exemptions are binding 
on State, local and Indian tribe authorities, and on regulated 
entities. See 49 CFR 171.2. To avoid conflict with Federal hazmat law 
and the HMR, State, local and Indian tribe authorities must implicitly 
or explicitly recognize a DOT exemption. See IR-31, 55 FR 25572 (June 
21, 1990).
    HASA claims that Los Angeles County fails to recognize that E-10552 
exempts HASA not only from the Federal attendance requirements but also 
from the local attendance requirements (which are substantively the 
same as the Federal requirements). Los Angeles County's failure to 
recognize a DOT exemption undermines the exemption authority granted to 
the Secretary of Transportation under 49 U.S.C. 5117. Section 5117(A) 
explicitly authorizes DOT to issue exemptions when the applicant can 
demonstrate that it will transport or ship hazardous materials in a 
manner that achieves a safety level at least equal to that required 
under Federal hazmat law, or that the exemption is consistent with the 
public interest.
    Los Angeles County's continued enforcement of Sec. 79.809(f) 
against HASA, in spite of the fact that HASA holds DOT exemption E-
10552, is an obstacle to accomplishing and carrying out Federal hazmat 
law and the regulations issued thereunder. Consequently, 
Sec. 5125(a)(2) of Federal hazmat law, 49 U.S.C. 5125(a)(2), preempts 
LACoC Sec. 79.809(f) as it is applied and enforced. However, California 
has incorporated the HMR by reference into its regulations (see, Title 
13 California Code of Regulations, Division 2, Chapter 6). If Los 
Angeles County finds at any time that HASA is not in compliance with 
its DOT exemption, it can enforce the HMR and its own regulations.
    (d) Ventilation. HASA asks that RSPA preempt 
Sec. 80.402(b)(3)(G)(i) and Sec. 80.402(c)(8)(A) because they apply to 
the unloading of hazardous materials in a manner that conflicts with 
Federal hazmat law and the HMR. Specifically, these LACoC provisions 
require the use of a gas cabinet or locally exhausted enclosure when a 
tank car is unloaded outdoors, and the use of a ventilated separate gas 
storage room or an exhausted enclosure when a portable or stationary 
tank is unloaded indoors.
    There is insufficient information in the record regarding how the 
LACoC ventilation requirements are applied and enforced. RSPA, 
therefore, is unable to determine whether the requirements are 
preempted by Federal hazmat law.
    f. Packaging Design and Construction. (1) LACoC Requirement. HASA 
challenges the following provision of LACoC Title 32:
    Sec. 80.301(b)(1) states that containers and tanks must be designed 
and constructed in accordance with nationally recognized standards. 
Title 32, Sec. 2.304(b) sets forth the national standards and 
publications recognized under that title. The most recent edition of 
Title 49 CFR Chapter 1 (which includes the HMR) is referenced.
    (2) HASA's Arguments and Summary of Comments. HASA provides no 
explanation or arguments regarding how Sec. 80.301(b)(1) is applied and 
enforced, or why HASA believes that it should be preempted.
    (3) Analysis. Section 80.301(b)(1), on its face, requires that 
containers and tanks be designed and constructed in accordance with 
nationally recognized standards. ``Nationally recognized standards'' is 
defined at Title 32, Sec. 2.304(b) to include the most recent edition 
of the HMR. There is no evidence in the record that design, 
construction, and performance standards other than those contained in 
the HMR are being applied and enforced under the LACoC, or that the 
containers and tanks at issue are being used to transport hazardous 
materials in commerce. Furthermore, LACoC Sec. 80.101(a) exception 1 
exempts ``off-site hazardous materials transportation in accordance 
with DOT requirements'' from the requirements of LACoC Article 80, 
including Sec. 80.301(b)(1).
    Thus, there is insufficient evidence in the record to determine 
whether Federal hazmat law preempts Sec. 80.301(b)(1).
3. Ruling
    Based on the above, Federal hazmat law preempts the following 
provisions of LACoC Titles 2 and 32:
    (1) Title 2 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 materials transportation;
    (2) Title 32 LACoC Sec. 79.809(f), as applied and enforced by Los 
Angeles County. Los Angeles County fails to recognize the validity of a 
DOT exemption that authorizes HASA to employ alternative methods of 
compliance with certain Federal tank car unloading requirements; and
    (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 
[[Page 8790]] ``substantively the same'' as Federal tank car unloading 
requirements.
    Based on a lack of information in the record, RSPA is unable to 
determine whether Federal hazmat law preempts LACoC Title 32, 
Secs. 80.103(e), 80.301(b)(1), 80.402(b)(3)(G)(i) and 80.402(c)(8)(A).
    Federal hazmat law does not preempt the following provisions of 
LACoC Title 32: Sec. 4.108.c.7, Table 4.108-A, Sec. 79.809(b), 
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), Sec. 80.103(d), 
Sec. 80.201, Secs. 80.202(a) and (b), Sec. 80.203, Appendix VI-A, and 
Sec. 80.301(a)(2).

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

Los Angeles County, California Requirements Applicable to the 
Transportation and Handling of Hazardous Materials on Private Property
Applicant: Swimming Pool Chemical Manufacturers' Association (SPCMA)
Local Laws Affected:
    Los Angeles County Code (LACoC) Title 32 :
    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)

    Summary: Federal hazardous material transportation law (Federal 
hazmat law), 49 U.S.C. 5101-5127, does not preempt the following 
provisions of LACoC Title 32: Sec. 4.108(c)(8), Sec. 9.105, 
Sec. 75.101, Sec. 75.103(a), Table 75.103-A, Sec. 75.104, Secs. 75.105 
(a) and (b), Sec. 75.108, Sec. 75.205, and Secs. 75.602 (a), (b), and 
(c).
1. Application For Preemption Determination
    SPCMA filed its application with the Research and Special Programs 
Administration (RSPA) on January 20, 1993, asking that certain 
provisions of Title 32 of the 1990 LACoC be preempted. SPCMA states 
that preemption is warranted because the LACoC applies to the 
transportation of cryogenic liquids, including unloading and storage. 
Furthermore, SPCMA asserts that the LACoC applies to the construction 
of containers used for the transportation of cryogenic liquids, a 
covered subject area.
    On February 12, 1993, RSPA published a Public Notice and Invitation 
to Comment on SPCMA's application. 58 FR 8480. That Notice set forth 
the text of SPCMA's application. Following publication of the Public 
Notice, comments were submitted by the American Trucking Associations 
(ATA), the County of Los Angeles Fire Department, and the Compressed 
Gas Association, Inc. Rebuttal comments were submitted by SPCMA.
    In response to RSPA's October 14, 1993 Public Notice re-opening the 
comment period in Docket PDA-10(R), comments were submitted by SPCMA, 
HASA and the County of Los Angeles Fire Department. SPCMA also updated 
its application to reflect amendments to Title 32 that were adopted by 
Los Angeles County in May 1993.
2. Discussion
    a. Permits. (1) LACoC Requirements.
    SPCMA challenges the following provisions of LACoC Title 32:
    Sec. 75.101 requires that storage, handling, and transportation of 
cryogenic fluids be in accordance with LACoC Article 75. (Article 75 
sets forth all requirements pertaining specifically to cryogenic 
fluids.)
    Sec. 4.108(c)(8) states that a permit must be obtained from the 
Bureau of Fire Prevention prior to producing, storing or handling 
``cryogens'' in excess of amounts specified in Table No. 4.108-B, 
except where Federal or State regulations apply.
    Sec. 75.104 indicates that a permit must be obtained to store, 
handle or transport ``cryogens,'' and references Sec. 4.108.
    (2) SPCMA's Arguments and Summary of Comments. SPCMA asserts that 
the permit requirements in Title 32 apply to any person, firm or 
corporation that stores, handles or transports cryogenic liquids in 
excess of the permit amounts set forth in Table No. 4.108-B. Based on 
its review of Sec. 4.108.c.8, Sec. 75.101, and Sec. 75.104, SPCMA 
concludes that, in the LACoC, the terms ``handling'' and 
``transportation'' are synonymous. SPCMA points out that ``handling'' 
is defined in LACoC Sec. 9.110 as ``the deliberate transport of 
material by any means to a point of storage or use.''
    SPCMA further contends that ``there is no assurance that a permit 
can be obtained from the Bureau of Fire Prevention and/or obtained 
without prior compliance with the LACoC, and in particular, Article 75. 
Many of the requirements contained in Article 75 are themselves 
preempted by [Federal hazmat law] and regulation[s] thereunder.'' SPCMA 
concludes that the requirement to obtain a permit prior to the storage, 
handling or transportation of cryogenic liquids is an obstacle to 
accomplishing and carrying out Federal hazmat law and the HMR and is, 
therefore, preempted.
    ATA supports SPCMA's position. ATA states that the LACoC applies to 
the transportation of cryogenic liquids, including loading, unloading, 
and storage incidental thereto, in interstate and intrastate commerce. 
ATA believes that the requirements directly conflict with Federal 
hazmat law and the HMR.
    The County of Los Angeles Fire Department disagrees with SPCMA's 
assertion that certain provisions within Title 32 apply to 
transportation in commerce, and asserts that Title 32 applies to fixed 
facilities that ``handle'' hazardous materials. It states that, under 
the LACoC, ``transport'' is defined as ``handle.'' It explains that 
cryogenic liquids arrive at a manufacturing facility via railroad tank 
car, and the contents are unloaded to a stationary storage tank at the 
facility. As the need arises, the cryogenic liquids are ``transported'' 
via either piping or containers to the site of use. The County of Los 
Angeles Fire Department explains that, in the above-described 
situation, ```transport' can mean the transport of cryogenic liquids to 
processing equipment and pressure vessels from a distant stationary 
pressure storage tank via piping or from a portable pressure tank that 
is transported to the processing area.'' It submits that the meaning of 
transport in the above example is quite different from that set forth 
under 49 CFR 107.3, which defines ``transportation'' as ``any movement 
of property by any mode, and any loading, unloading, or storage 
incidental thereto.''
    (3) Analysis. SPCMA, like HASA (in PDA-7(R), discussed above in PD-
9(R)), seeks preemption of the permit requirements under the LACoC. In 
this instance, a permit is required to produce, store, transport on 
site or handle cryogenic fluids in excess of specified amounts. SPCMA, 
like HASA, asserts that the permit requirements are preempted because 
they apply to a facility's on-site transportation of hazardous 
materials and, therefore, are an obstacle to accomplishing and carrying 
out Federal hazmat law. For the reasons enumerated above in PD-8(R), 
Federal hazmat law does not preempt the LACoC permit requirements, 
which implement the handling requirements under Chapter 6.95 of the 
California Health and Safety Code.
    b. Definition/Classification of Cryogenic Fluids. (1) LACoC 
Requirements. SPCMA challenges the following provisions of LACoC Title 
32:
    Sec. 9.105 defines cryogenic fluids as those fluids that have a 
normal boiling point below 150 degrees fahrenheit.
    Sec. 75.103(a) specifies that cryogenic fluids shall be classified 
according to Table No. 75.103-A. [[Page 8791]] 
    Table No. 75.103-A classifies specified cryogenic fluids as either 
``flammable,'' ``nonflammable,'' Corrosive/Highly Toxic'' or 
``Oxidizer.''
    (2) SPCMA's Arguments and Summary of Comments. SPCMA states that 
the definition of cryogenic fluid at LACoC Sec. 9.105 differs from the 
definition of cryogenic liquid contained at 49 CFR 173.115(g). 
Specifically, Sec. 9.105 defines ``cryogenic fluid'' as ``a fluid that 
has a normal boiling point below 150 degrees fahrenheit.'' Section 
173.115(g) defines ``cryogenic liquid'' as ``a refrigerated liquefied 
gas having a boiling point colder than -90 degrees celsius (-130 
degrees Fahrenheit) at 101.3 kPa (14.7 psi) absolute.'' SPCMA alleges 
that ``it is impossible to comply with both the definition in the LACoC 
and the definition in Title 49, because the LACoC definition includes 
additional `hazardous materials' which are not classified for shipment 
as `cryogenic liquids' in the `Hazardous Materials Table' at 49 CFR 
172.101.'' SPCMA, therefore, concludes that Sec. 9.105 should be 
preempted because it applies to a covered subject area--the designation 
of materials as hazardous--and compliance with both the Federal and 
local requirement is impossible.
    With respect to the classification of hazardous materials, SPCMA 
states that Sec. 75.103 and Table 75.103-A provide a classification 
system for cryogenic fluids that is in addition to and different from 
the HMR. SPCMA gives several examples of how the LACoC classification 
system and the HMR classification system differ. SPCMA concludes that 
Federal hazmat law preempts Sec. 75.103 and Table 75.103-A because 
those provisions apply to hazardous materials classification, a covered 
subject, and are not substantively the same as the Federal requirement.
    The County of Los Angeles Fire Department opposes preemption of 
Sec. 75.103 and Table 75.103-A. It states that ``Title 32 [of the 
LACoC] regulates the handling and not the transport[ation] (per 49 CFR 
107.3) of hazardous substances at a fixed facility. The chemical 
classification under [Federal hazmat law and the HMR] applies to 
transportation and does not apply to `handling' of cryogenic liquids 
within a fixed facility.''
    (3) Analysis. The designation of materials as hazardous and the 
classification of hazardous materials, for purposes of transportation 
in commerce, are exclusive to the Federal Government. See 49 U.S.C. 
5125(b)(1)(A). Federal hazmat law provides that State, local and Indian 
tribe requirements pertaining to hazardous materials designation and 
classification for purposes of transportation in commerce are preempted 
if they are not substantively the same as the Federal requirements or 
are not otherwise authorized by Federal law. Id. The Federal 
Government's exclusive role in hazardous materials designation and 
classification is limited, however, to materials that are in 
transportation in commerce. Federal hazmat law provides that ``[t]he 
Secretary of Transportation shall designate material * * * or a group 
or class of material 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.'' 49 
U.S.C. 5103 (emphasis added).
    There is no evidence in the record that Los Angeles County, through 
LACoC Sec. 9.105, is attempting to designate additional materials as 
hazardous for purposes related to transportation in commerce. 
Furthermore, there is no evidence in the record that the LACoC's 
classification system for cryogenic fluids is applied to materials that 
are in transportation in commerce. In order for Federal hazmat law to 
preempt the LACoC requirements, the LACoC requirements would have to 
apply to the transportation of hazardous materials in commerce, or 
loading, unloading or storage incidental thereto.
    The LACoC's designation of certain materials as ``cryogenic 
fluids'' and its classification of those materials, in conjunction with 
the amount of the cryogenic fluid at issue, appear from the record and 
from RSPA's review of LACoC Article 75 to be used to determine, among 
other things: (1) whether a permit is required under Article 4 of Title 
32, Table 4.108-A; and (2) the required minimum separation between 
cryogenic fluids in storage on the one hand, and buildings, public 
spaces, and other hazardous materials, on the other. See Table 75.303-
A. RSPA has determined that Federal hazmat law does not preempt the 
LACoC permit requirements because the underlying substantive 
requirements are otherwise authorized by Federal law. Furthermore, 
consignee storage of hazardous materials is not regulated under Federal 
hazmat law.
    Thus, Federal hazmat law does not preempt Sec. 9.105, 
Sec. 75.103(a), or Table No. 75.103-A.
    c. Hazard Communication. (1) LACoC Requirements. SPCMA challenges 
the following provisions of LACoC Title 32:
    Sec. 75.108 requires that warning labels and signs be posted on 
containers and equipment at locations prescribed by the fire chief.
    Sec. 75.205 states that containers must be identified by the 
attachment of a nameplate in an accessible place marked as authorized 
by nationally recognized standards (as set forth at Sec. 2.304(b)) or 
DOT regulations.
    Sec. 75.602(a) indicates that vehicles transporting cryogenic 
fluids and subject to Title 32 must be ``placarded at the front, rear 
and on each side identifying the product.'' Placards must have letters 
not less than two inches high using approximately a \5/8\ inch stroke. 
Abbreviations are not permitted. Vehicles also must bear other placards 
required by DOT.
    (2) SPCMA's Arguments and Summary of Comments. SPCMA states that 
Sec. 75.108 requires fixed facilities to post warning labels and signs 
on containers and equipment and at locations prescribed by the fire 
chief. SPCMA asserts that the phrase ``warning labels and signs'' 
includes labeling, marking and placarding of cryogenic liquid 
containers. SPCMA further asserts that the LACoC does not specify the 
particular requirements for labeling, marking and placarding and that, 
therefore, SPCMA cannot compare the LACoC requirements with Federal 
hazmat law and HMR requirements in order to ascertain whether they are 
substantively the same. SPCMA also alleges that different fire chiefs 
in different jurisdictions ``are likely to have different 
requirements.'' SPCMA concludes that the requirements under Sec. 75.108 
are preempted because they apply to a covered subject--labeling, 
marking and placarding of hazardous materials--and are an obstacle to 
accomplishing and carrying out Federal hazmat law and the HMR.
    SPCMA states that Sec. 75.205 requires that nameplates be attached 
to containers ``as authorized by nationally recognized standards or DOT 
regulations.'' SPCMA asserts that ``nationally recognized standards'' 
may or may not be substantively the same as requirements under the HMR. 
SPCMA states that Sec. 75.205 is preempted because it applies to 
containers used for the transportation of cryogenic liquids--a covered 
subject area.
    SPCMA states that the vehicle placarding requirements under 
Sec. 75.602 are in addition to, and different from, Federal 
requirements. Furthermore, SPCMA asserts that Sec. 75.602(a) confuses 
the requirements for ``marking'' and ``placarding.'' SPCMA states that 
```[p]lacarding' is required in the LACoC where neither `placarding' 
nor `marking' is required by Federal regulation. In the LACoC, 
placarding is required for all [[Page 8792]] shipments of cryogenic 
liquids, irrespective of quantity being transported. [Under the HMR,] 
placarding is not required for shipments of 1,000 pounds or less for 
2.1 and 2.2 materials. All shipments--irrespective of quantity--of 2.3 
material require placarding.''
    SPCMA also states that the ``placarding'' requirement at 75.602(a) 
actually appears to be a ``marking'' requirement addressed in Subpart D 
of 49 CFR Part 172. SPCMA states that Sec. 75.602(a) requires 
```placarding' on all vehicles transporting any quantity of cryogenic 
liquids, and that `placarding' includes `placards' and `markings.''' 
SPCMA concludes that the requirements at Sec. 75.602(a) are in addition 
to and different from Federal requirements, in that placarding is 
required under the LACoC ``at times when and at places where there is 
no Federal requirement.'' SPCMA asserts that Sec. 75.602(a) 
requirements pertain to a covered subject area and are not 
substantively the same as the Federal requirements. SPCMA, therefore, 
requests that the requirements be preempted. SPCMA also alleges that 
the Sec. 75.602(a) requirements ``fail'' the dual compliance test.
    The County of Los Angeles Fire Department opposes preemption of 
Sec. 75.602(a), stating that the placarding requirements under the 
LACoC apply to the on-site handling of hazardous materials and not the 
transportation of hazardous materials in commerce.
    (3) Analysis. The record does not reflect that the labeling, 
nameplating and placarding requirements under Secs. 75.108, 75.205, and 
75.602(a), respectively, are applied to hazardous materials that are in 
transportation in commerce and, consequently, regulated under Federal 
hazmat law and the HMR. These regulations appear to apply to hazardous 
materials stored and transported at facilities for consumption in 
manufacturing processes. As stated throughout this determination, 
Federal hazmat law and the HMR do not apply to: (1) hazardous materials 
that are stored at a consignee's facility; or (2) the transportation of 
hazardous materials exclusively on private property. Therefore, to the 
extent that the requirements in Secs. 75.108, 75.205 and 75.602(a) 
pertain to hazardous materials that are stored at a consignee's 
facility or that are being transported exclusively within that 
facility, they do not conflict with Federal hazmat law and are not 
preempted.
    d. Motor Vehicles. (1) LACoC Requirements. SPCMA challenges the 
following provisions of LACoC Title 32:
    Sec. 75.602(b) requires that vehicles transporting cryogenic fluid 
be equipped with not less than one approved-type fire extinguisher, 
with a minimum rating of 2-A:20-B:C.
    Sec. 75.602(c) requires that vehicles transporting cryogenic fluid 
be equipped with adequate chock blocks.
    (2) SPCMA's Arguments and Summary of Comments. SPCMA notes that 49 
CFR 177.804 requires motor carriers and other persons subject to 49 CFR 
Part 177 to comply with Federal Motor Carrier Safety Regulations 
(FMCSR). SPCMA states that the FMCSR, at 49 CFR 393.95, requires a host 
of safety equipment on all power units, e.g., fire extinguishers, spare 
fuses, flares, red flags. SPCMA asserts that because ``there is no 
requirement [under the LACoC] for emergency equipment other than fire 
extinguishers * * * the [LACoC] fire extinguisher requirement is 
inconsistent with the Federal requirements contained in * * * 49 CFR 
393.95(a).'' SPCMA concludes that the fire extinguisher requirement 
``fails both the `obstacle' and `dual compliance' tests'' and should be 
preempted.
    SPCMA does not address the requirement in Sec. 75.602(c) that 
vehicles transporting cryogenic fluid be equipped with adequate chock 
blocks.
    No commenter specifically addressed Sec. 75.602(b) or 
Sec. 75.602(c).
    (3) Analysis. SPCMA does not allege and the record does not reflect 
that the requirements under Sec. 75.602(b) or Sec. 75.602(c) are 
applied to motor vehicles that transport hazardous materials on other 
than private property. As stated earlier, Federal hazmat law and the 
HMR apply to transportation in commerce. Ground transportation is ``in 
commerce'' when it takes place on, across, or along a public way. 
Ground transportation of hazardous material that takes place entirely 
on private property is not transportation ``in commerce,'' and is not 
regulated by Federal hazmat law and the HMR.
    Thus, Federal hazmat law does not preempt LACoC Sec. 75.602(b) or 
Sec. 75.602(c) to the extent that each applies to motor vehicles that 
are transporting hazardous materials exclusively on private property.
    e. Packaging Design and Construction. (1) LACoC Requirements. SPCMA 
challenges the following provisions of LACoC Title 32:
    Sec. 75.105(a) requires that containers, equipment and devices used 
for the storage, handling and transportation of ``cryogenic fluids'' be 
of a type, material and construction approved by the fire chief as 
suitable for that use. Approval is based on satisfactory evidence that 
design, construction and testing are in accordance with nationally 
recognized standards. Title 32, Sec. 2.304(b) lists various national 
standards and publications, and indicates that the most recent edition 
or supplement may be used; included in that list is Title 49, Code of 
Federal Regulations, Chapter 1, which contains the HMR.
    Sec. 75.105(b) states that containers, equipment or devices that 
are not in compliance with recognized standards for design and 
construction may be approved by the chief on presentation of 
satisfactory evidence that they are designed and constructed for safe 
operation.
    (2) SPCMA's Arguments and Summary of Comments. SPCMA notes that the 
term ``container'' is defined at Sec. 75.102(b) as ``any cryogenic 
vessel used for transportation, handling or storage.'' SPCMA believes 
the term ``container'' includes all containers used for both storage 
and on-site transportation of cryogenic liquids, including portable 
tanks, cargo tanks and rail cars. SPCMA further notes that the fire 
chief has discretionary approval authority under Secs. 75.105 (a) and 
(b).
    SPCMA specifically requests that three issues be addressed in 
RSPA's preemption determination regarding Secs. 75.105 (a) and (b):

    (1) Can the chief prohibit the use of containers for the 
transportation of cryogenic liquids, which he has not approved, and 
where there are no Federal specifications?
    (2) Can the chief approve containers for the transportation of 
cryogenic liquids [when those containers] are different from those 
specified in Title 49 of the CFR?
    (3) Can the chief approve containers for the transportation of 
cryogenic liquids which are not in compliance with Federal 
specifications where Federal specifications exist?

    SPCMA states that the fire chief is authorized to approve 
containers prior to the on-site transportation of cryogenic liquids, 
including type, material, and construction, absent any Federal 
requirements. Furthermore, SPCMA alleges that requirements and 
specifications are likely to vary from district to district, depending 
on requirements and specifications established by the local fire chief. 
SPCMA also asserts that the fire chief is authorized to approve any 
container for on-site transportation without regard to whether the 
container is constructed in accordance with DOT specifications. 
Consequently, the fire chief can approve specifications and 
construction of containers that are in addition to, different from, or 
not approved by DOT. SPCMA concludes that the requirements under 
Secs. 75.105 (a) and (b) should be [[Page 8793]] preempted by the 
Federal hazmat law because they: (1) are an obstacle to accomplishing 
and carrying out Federal hazmat law and the HMR; and (2) apply to a 
covered subject area and are not substantively the same as the Federal 
requirements.
    ATA agrees with SPCMA's position and arguments regarding the LACoC 
packaging design and construction requirements to the extent that the 
requirements ``pertain to actual transportation of hazardous 
materials.'' Nevertheless, ATA believes that the LACoC requirements are 
not in conflict with Federal hazmat law and the HMR where 
transportation has concluded. ATA notes that ``strict storage of 
materials for use on the consignee's property is not governed by 
[Federal hazmat law] and HMRs. Regulations pertaining to storage of 
materials are within the purview of [OSHA] at the Federal level and 
similar agencies within the states.''
    (3) Analysis. Federal hazmat law and the HMR apply to the design 
and construction of containers used to transport hazardous materials in 
commerce. This authority is exclusive to the Federal Government. See 49 
U.S.C. 5125(b)(1)(E). Federal hazmat law provides that the ``design, 
manufacturing, fabricating, marking, maintenance, reconditioning, 
repairing, or testing of a package or container represented, marked, 
certified or sold as qualified for use in transporting hazardous 
material'' is a covered subject area. Id. A State, local or Indian 
tribe requirement that is not substantively the same as the Federal 
requirements, therefore, is preempted unless otherwise authorized by 
Federal law.
    The packaging design and construction requirements under the LACoC 
apply to packagings used to transport hazardous materials within the 
gates of a facility. Federal hazmat law and the HMR do not apply to 
packagings that are intended for use solely on private property, i.e., 
packagings that are not intended for the transportation of hazardous 
materials in commerce. The record does not reflect that the containers, 
equipment and devices regulated under Secs. 75.105 (a) and (b) are used 
to store, handle or transport cryogenic fluids that are in 
transportation in commerce.
    Consequently, Federal hazmat law does not preempt Secs. 75.105 (a) 
and (b).
3. Ruling
    Based on the above, Federal hazmat law does not preempt any of the 
following provisions of Title 32 LACOC: Sec. 4.108(c)(8), Sec. 9.105, 
Sec. 75.101, Sec. 75.103(a), Table 75.103-A, Sec. 75.104, Secs. 75.105 
(a) and (b), Sec. 75.108, Sec. 75.205, and Secs. 75.602 (a), (b) and 
(c).

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

Los Angeles County, California Requirements for The On-Site 
Transportation of Compressed Gases
Applicant: Swimming Pool Chemical Manufacturers' Association (SPCMA)
Local Laws Affected: Los Angeles County Code (LACoC), Title 32 
Sec. 4.108.c.7

    Summary: Federal hazardous material transportation law, 49 U.S.C. 
5101-5127, does not preempt LACoC Sec. 4.108.7 because the substantive 
permit application requirements are 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. and 
Sec. 112(r) of the Clean Air Act Amendments of 1990 (CAA Amendments), 
42 U.S.C. 7412(r).
1. Application for Preemption Determination
    On January 12, 1993, SPCMA applied for a determination that Federal 
hazmat law preempts the permit requirement under LACoC Title 32 as it 
applies to the on-site transportation of compressed gases. On February 
12, 1993, the Research and Special Programs Administration (RSPA) 
published a Public Notice and Invitation to Comment on SPCMA's 
application in the Federal Register, 58 FR 8488. That Notice set forth 
the text of SPCMA's application. Following publication of this Public 
Notice, comments were submitted by the American Trucking Associations, 
the County of Los Angeles Fire Department, and the Compressed Gas 
Association. Rebuttal comments were submitted by SPCMA.
    In response to RSPA's October 14, 1993, Public Notice re-opening 
the comment period in Docket PDA-11(R), comments were submitted by 
SPCMA, HASA and the County of Los Angeles Fire Department.
2. Discussion Regarding Permits
    a. LACoC Requirement. SPCMA challenges the following provision 
under LACoC Title 32:
    Sec. 4.108.c.7 requires a permit to be obtained from the Bureau of 
Fire Prevention prior to engaging in the storage, on-site 
transportation, dispensing, use or handling of a compressed gas, at 
normal temperatures and pressures, in excess of specified amounts 
listed in Table 4.108-A.
    b. SPCMA's Arguments and Summary of Comments. SPCMA states that a 
permit is required ``for the `on-site' transportation of compressed 
gases, i.e., movement on property owned, leased, or otherwise under the 
control of the consignor, consignee, manufacturer, transporter, etc.'' 
SPCMA further asserts that ``[i]n almost all cases, both `loading' and 
`unloading' of compressed gases occur `on-site.' Therefore, the permit 
requirement in the LACoC is applicable to such activities.''
    SPCMA asserts that ``there is no assurance in the LACoC that a 
permit can be obtained from the bureau of fire prevention and/or 
obtained without prior compliance with the LACoC. Moreover, a permit 
can be revoked or cancelled where a change in ownership of the business 
occurs, change in use of the property, noncompliance with the fire 
code, change in operations, etc.'' SPCMA believes that ``the permit 
system is an unauthorized prior restraint on shipment of compressed 
gases in commerce which are presumptively safe based on compliance with 
[Federal hazmat law and the HMR], and therefore, constitutes an 
obstacle to the accomplishment and execution of [Federal hazmat law].''
    The County of Los Angeles Fire Department opposes preemption of 
Sec. 4.108.c.7, stating that the permit requirement does not apply to 
the transportation of hazardous materials in commerce. It asserts that:

    ``transportation'' as stated in 49 CFR 107.3, means any movement 
of property by any mode, and any loading, unloading or storage 
incidental thereto, as related to intrastate and interstate 
commerce. Under [Title 32 of the LACoC] the * * * meaning of 
transport is defined as `handle.' Title 32 * * * regulates the 
`storage,' `handling' and `use' of hazardous substances, materials 
and devices that may prove to be hazardous to life or property in 
the use or occupancy of buildings or premises. [The permit 
requirement for compressed gases] specifically states the exemption 
of the permitting requirement for those facilities [where] Federal 
or State regulations apply.

    c. Analysis. In PDA-7(R), HASA challenged LACoC Sec. 4.108.c.7. A 
discussion of the LACoC permit requirement under Sec. 4.108.c.7, and 
the rationale for RSPA's finding that Federal hazmat law does not 
preempt Sec. 4.108.c.7, are at PD-8(R), above.
3. Ruling
    Based on the above, Federal hazmat law does not preempt 
Sec. 4.108.7 because the substantive permit application requirements 
are otherwise authorized by Federal law, specifically SARA Title III 
and Sec. 112(r) of the CAA Amendments. [[Page 8794]] 

III. Appeal Rights

    In accordance with 49 CFR 107.211(a), ``[a]ny person aggrieved'' by 
these decisions may file a petition for reconsideration within 20 days 
of service of this decision. Any party to these proceedings may seek 
review of RSPA's decisions ``by the appropriate district court of the 
United States * * * within 60 days after such decision becomes final.'' 
49 App. U.S.C. 1811(e).
    These decisions will become RSPA's final decisions 20 days after 
service if no petition for reconsideration is filed within that time. 
The filing of a petition for reconsideration is not a prerequisite to 
seeking judicial review of the decision under 49 U.S.C. 5125(f).
    If a petition for reconsideration of these decisions is filed 
within 20 days of service, the action by RSPA's Associate Administrator 
for Hazardous Materials Safety on the petition for reconsideration will 
be RSPA's final decision. 49 CFR 107.211(d).

    Issued in Washington, D.C. on February 7, 1995.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.

Appendix A--Statutory and Regulatory Provisions at Issue in PD-8(R), 
PD-9(R), PD-10(R) and PD-11(R)

A. PD-8(R)--(Docket PDA-9(R)) California Health and Safety Code, 
Chapter 6.95

25501.3. Additional definition of ``Handle''

    ``Handle'' also means 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.

25503.7. Railroad car, marine vessel, or tank truck at same facility 30 
days; stored

    (a) When any hazardous material contained in any rail car, rail 
tank car, rail freight container, marine vessel, or marine freight 
container remains within the same railroad facility or business 
facility for more than 30 days, or a business knows or has reason to 
know that any rail car, rail tank car, rail freight container, 
marine vessel, or marine freight container containing any hazardous 
material will remain at the same railroad facility, marine facility, 
or business facility for more than 30 days, the hazardous material 
is deemed stored at that location and for purposes of this chapter 
and subject to the requirements of this chapter.
    (b) Subdivision (a) does not apply to a marine vessel while 
under construction, repair, modernization, or retrofitting while 
located in a ship repair facility.
    (c) Notwithstanding Section 25510, a business handling hazardous 
materials or hazardous substances which are stored in a manner 
subject to subdivision (a) shall 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. (Amended by Stats. 1991, Ch. 1128.)

B. PD-9(R)--(Docket PDA-7(R)) Los Angeles County Code, Titles 2 and 
32

Title 2

    Section 2.20.140 Annual fees to be paid by handlers of hazardous 
materials.
    The annual fee required to be paid to the county by every 
handler of hazardous materials for the administration and 
enforcement of the provisions of the Act shall be as follows:

------------------------------------------------------------------------
                   Total quantity of hazardous materials                
                handled at any one time during the retotal              
  Fee group     quantity of hazardous materials handled at    Annual fee
                any one time during fee group the reporting             
                                   year                                 
------------------------------------------------------------------------
I............  Minor Handler...............................      $110.00
               55-500 gallons or                                        
               500-5,000 pounds or                                      
               200-2,000 cubic feet                                     
II...........  Moderate Handler............................       330.00
               501-2,750 gallons or                                     
               5,001-25,000 pounds or                                   
               2,001-10,000 cubic feet                                  
III..........  Major Handler...............................       770.00
               2,751 and over gallons or                                
               25,001 and over pounds or                                
               10,0001 and over cubic feet                              
IV...........  Major Handler--Large Volume.................     2,650.00
               (a) 50,000 gallons and over or                           
               (b) 500,000 pounds and over or                           
               (c) 200,000 cubic feet and over or                       
               (d) A total quantity of two or more                      
                hazardous materials when expressed in or                
                converted to pounds that is 500,000 pounds              
                or greater, AND                                         
               (e) Which is either a refinery, chemical                 
                plant, distillery, bulk plant, or terminal              
                as defined herein.                                      
                                                                        
------------------------------------------------------------------------
The following definitions govern the construction of this Section       
 2.20.140:                                                              
  ``Refinery'' means a plant in which flammable or combustible liquids  
   are produced on a commercial scale from crude petroleum, natural     
   gasoline, or other hydrocarbon sources.                              
  ``Chemical plant'' means a large integrated plant or that portion of  
   such a plant other than refinery or distillery where liquids are     
   produced by chemical reactions or used in chemical reactions.        
  ``Distillery'' means a plant or that portion of a plant where liquids 
   produced by fermentation are concentrated, and where the concentrated
   products may also be mixed, stored, or packaged.                     
  ``Bulk plant or terminal'' means that portion of a property where     
   liquids are received by tank vessel, pipelines, tank car, or tank    
   vehicle, and are stored or blended in bulk for the purpose of        
   distributing such liquids by tank vessel, pipeline, tank car, tank   
   vehicle, portable tank, or container.                                
                                                                        
------------------------------------------------------------------------
V............  Exempt Handler..............................       No fee
               Less than 55 gallons and                                 
               Less than 500 pounds and                                 
               Less than 200 cubic feet                                 
Exception:...  ............................................   Annual fee
               Underground fuel tanks regardless of              $110.00
                quantity..                                              
                                                                        
------------------------------------------------------------------------
[[Page 8795]]                                                           
                                                                        
Exemption: Every governmental agency shall comply with the reporting    
 requirements established by the county administering agency relating to
 hazardous materials under the Act, but every governmental agency is    
 exempt from the annual fee required to be paid under this Section      
 2.20.140.                                                              
(Ord. 90-0109 Sec. 3.1990: Ord. 89-0055 Sec. 1.1989: Ord. 87-0001 Sec. 1
 (part), 1987.)                                                         
                                                                        
------------------------------------------------------------------------

2.20.150  Additional fees--Acutely hazardous substances.

    Every handler of an acutely hazardous material, shall in 
addition to the fee specified in Section 2.20.140, be required to 
pay an annual fee to the county for the administration and 
enforcement of acutely hazardous materials registration, risk 
assessment, and risk mitigation in accordance with compliance under 
the Act. This fee shall be calculated as follows:

AHM Fee = Base Administrative Fee + RMPP Risk Factor Fee
Where:
    The base administrative fee shall be charged each handler of one 
or more acutely hazardous materials or mixtures containing an 
acutely hazardous material handled in quantities equal to or greater 
than the threshold planning quantities specified in Section 25536 of 
the Act, as follows:

1-3 AHMs = $50
4 or more AHMs = $100

And
RMPP Risk Factor Fee = Rate Factor x Handler Risk Units
    Where:
    The county rate factor shall be calculated as the county RMPP 
program cost (the cost base for which is defined in Section 
2.20.170), minus the total of the handler base administrative fees, 
divided by the total county risk units.

Rate Factor = County RMPP Program Cost--Total Base Admin. 
Fees<divide>Total County Risk Units

    The total county risk units is determined by adding the risk 
units for each AHM registered in the county. The number of risk 
units for each AHM is equal to the total reported daily maximum 
quantity in pounds divided by the assigned TPQ for that AHM. For the 
1990-91 fiscal year, the county RMPP program cost is $547,871, the 
total base administrative fees is $38,650, the total county risk 
units is 885,629 and the rate factor is $0.57498
    And:
    The handler risk units are determined by adding risk units for 
each AHM required to be registered by each handler.
    Any ``Third Party Technical Review'' required by the 
administering agency shall be a cost paid by the handler.
    Exemption:
    Every governmental agency shall comply with the reporting 
requirements established by the county administering agency relating 
to AHMs under the Act, but every governmental agency is exempt from 
the annual fee required to be paid under this Section 2.20.150.

(Ord. 90-0190 Sec. 4, 1990.)


2.20.160  Late submission fee.

    A late submission fee shall apply to the filing requirements of 
both the business plan and inventory and to the AHM registration 
requirements as follows:
    Each handler submitting the required hazardous materials 
business plan or inventory documents after January 1st of each year 
or of each second year as specified in Section 2.20.130 and each AHM 
handler submitting the required AHM registration documents after 
January 1st of each year shall be levied a late submission fee 
commensurate to the additional administrative costs as determined by 
the administering agency and approved by the auditor-controller. 
Said late submission fee shall be $230 for the 1990-91 fiscal year.

(Ord. 90-0190 Sec. 5, 1990.)


2.20.170  Fee schedule--Annual adjustment procedure.

    Beginning with the 1991-92 fiscal year, the schedule of fees 
contained in Sections 2.20.140 through 2.20.160 inclusive shall be 
adjusted annually by the following procedure:
    The annual adjustment shall be the result of computing the 
change in the annualized cost to the administering agency of 
administering the program, where ``annualized cost'' is defined as 
the program cost which includes applicable salary, employee benefits 
and overhead calculated from rates contained in the administering 
agency's rate package, as approved by the auditor-controller.
    Program Cost=Hazmat Section Personnel Salaries+Employee 
Benefits+Overhead
    The program cost is annually re-allocated among handlers based 
upon:
    (A) Disclosure Unit--The number of handlers in each fee group 
and time involved in processing the required documents in each 
group.
    (B) RMPP Unit--Total county risk units and each handlers risk 
units.
    Where:
    Disclosure unit is the unit assigned to administer the hazardous 
materials disclosure program (Section 2.20.140), and RMPP unit is 
the unit assigned to administer the AHM registration and risk 
management and prevention programs (Section 2.20.150).

(Ord. 90-0190 Sec. 6, 1990.)

TITLE 32


Sec. 4.108.

    A permit shall be obtained from the bureau of fire prevention 
prior to engaging in the following activities, operations, practices 
or functions: * * *
    c.7. Compressed gases. To store, transport on site, dispense, 
use or handle at normal temperatures and pressures compressed gases 
in excess of the amounts listed in Table No. 4.108.A.

       Table No. 4.108-A.--Permit Amounts for Compressed Gases\1\       
------------------------------------------------------------------------
                  Type of gas                             Amount        
------------------------------------------------------------------------
Corrosive......................................  Any amount.            
Flammable (except cryogenic fluids and           200 cubic feet.        
 liquefied petroleum gases).                                            
Highly toxic...................................  Any amount.            
Inert..........................................  6,000 cubic feet.      
Oxidizing (including oxygen)...................  500 cubic feet.        
Pyrophoric.....................................  Any amount.            
Radioactive....................................  Any amount.            
Toxic..........................................  Any amount.            
Unstable (reactive)............................  Any amount.            
------------------------------------------------------------------------
\1\See Articles 74, 80 and 82 for additional requirements and           
  exceptions.                                                           

Sec. 79.809.

    (b) Storage Tanks. Class I, II or III liquids shall be 
transferred from a tank vehicle or tank car only into an approved 
atmospheric tank or approved portable tank.
    (c) Time Limit. Tank vehicles and tank cars shall be unloaded as 
soon as possible after arrival at point of delivery and shall not be 
used as storage tanks. Tank cars shall be unloaded only on private 
sidings or railroad siding facilities equipped for transferring the 
liquid between tank cars and permanent storage tanks. Unless 
otherwise approved by the chief, a tank car shall not be allowed to 
remain on a siding at point of delivery for more than 24 hours while 
connected for transfer operations.
    (f) Attendant. The operator or other competent person shall be 
in attendance at all times while a tank vehicle or tank car is 
discharging cargo. When practical, the tank vehicle or tank car 
shall be positioned such that the operating controls and the 
discharging end of the hoses are both in view of the operator or 
other competent person.


Sec. 80.101.

    (a) General. Prevention, control and mitigation of dangerous 
conditions related to storage, dispensing, use and handling of 
hazardous materials and information needed by emergency response 
personnel shall be in accordance with this article.
    Exceptions: 1. Off-site hazardous materials transportation in 
accordance with DOT requirements. * * *
    (b) Material Classification. Hazardous materials are those 
chemicals or substances defined as such in Article 9. See Appendix 
VI-A for the classification of hazard categories and hazard 
evaluations. [[Page 8796]] 
    Exception: For the purpose of this article, carcinogens, 
irritants and sensitizers do not include commonly used building 
materials and consumer products which are not otherwise regulated 
elsewhere in this code.
    The classification system referenced in Division II shall apply 
to all hazardous materials regulated elsewhere in this code.


Sec. 80.103.

    (a) General. Permits are required to store, dispense, use or 
handle hazardous material in excess of quantities specified in 
Section 4.108.
    A permit is required when a material is classified as having 
more than one hazard category if the quantity limits are exceeded in 
any category.
    Permits are required to install, repair, abandon, remove, place 
temporarily out of service, close or substantially modify a storage 
facility or other area regulated by this article. See also Sections 
80.110 and 80.111.
    (b) Hazardous Materials Business Plan. 1. Application. Each 
application for a permit required by this article shall include a 
hazardous materials business plan (HMBP) in accordance with Part 2 
of Chapter 2.20 of Title 2 of this code. (2)--Reporting. Every 
business shall comply with the reporting requirements as set forth 
in Part 2 of Chapter 2.20 of Title 2 of this code.
    (c) Hazardous Materials Inventory Statement. Each application 
for a permit required by this article shall include a hazardous 
materials inventory statement (HMIS) in accordance with Part 2 of 
Chapter 2.20 of Title 2 of this code.
    (d) Risk Management and Prevention Program. Every business shall 
comply with the requirements as set forth in Part 2 of Chapter 2.20 
of this code.
    (e) Emergency Information. Hazardous materials business plans, 
risk management prevention programs and hazardous materials 
inventory statements shall be posted in an approved location and 
immediately available to emergency responders. The chief may require 
that the information be posted at the entrance to the occupancy or 
property. (Ord. 93-0044 Sec. 100, 1993.)


Sec. 80.201.

    Hazardous materials shall be divided into hazard categories. The 
categories include materials regulated under this article and 
materials regulated elsewhere in this code.


Sec. 80.202.

    (a) Physical Hazards. The materials listed in this subsection 
are classified as physical hazards. A material with a primary 
classification as a physical hazard can also present a health 
hazard.

1. Explosives and blasting agents, regulated elsewhere in this code.
2. Compressed gases, regulated in this article and elsewhere in this 
code.
3. Flammable and combustible liquids regulated elsewhere in this 
code.
4. Flammable solids.
5. Organic peroxides.
6. Oxidizers.
7. Pyrophoric materials.
8. Unstable (reactive) materials.
9. Water-reactive solids and liquids.
10. Cryogenic fluids, regulated under this article and elsewhere in 
this code.

    (b) Health Hazards. The materials listed in this subsection are 
classified as health hazards. A material with a primary 
classification as a health hazard can also present a physical 
hazard.

1. Highly toxic or toxic materials, including highly toxic or toxic 
compressed gases.
2. Radioactive materials.
3. Corrosives.
4. Carcinogens, irritants, sensitizers and other health hazards.


Sec. 80.203.

    For descriptions and examples of materials included in hazard 
categories, see Appendix VI-A.

Appendix VI-A--[available in RSPA Dockets Unit]


Sec. 80.301.

    (a)(2) Quantities exceeding exempt amounts. Storage of hazardous 
materials, in containers, cylinder and tanks, in excess of the 
exempt amounts specified in Sections 80.302 through 80.315 shall be 
in accordance with this division. Tank vehicles and railroad tank 
cars shall not be used as storage tanks. Unloading operations shall 
be in accordance with Section 79.808 [sic] [Should read ``Section 
79.809'']. (Ord. 93-0044 Sec. 104, 1993.)
    (b)(1) Containers and Tanks. Design and construction. Containers 
and tanks shall be designed and constructed in accordance with 
nationally recognized standards. See Section 2.304(b).


Sec. 80.402.

    (b)(3)(G)(i) [Indoor dispensing and use] [Closed Systems] 
Special requirements for highly toxic and toxic compressed gases. 
Ventilation and storage arrangement. Compressed gas cylinders in use 
shall be within ventilated gas cabinets, laboratory fume hoods, 
exhausted enclosures or separate gas storage rooms. When portable or 
stationary tanks are utilized in use or dispensing, they shall be 
within a ventilated separate gas storage room or placed within an 
exhausted enclosure.
    (c)(8)(A) [Exterior Dispensing and Use] Special requirements for 
highly toxic or toxic compressed gases. Ventilation and storage 
arrangement. When cylinders or portable containers are used out-of-
doors, gas cabinets or a locally exhausted enclosure shall be 
provided.

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

LOS ANGELES COUNTY CODE, TITLE 32


Sec. 4.108.

    (c)(8). Cryogens. Except where federal or state regulations 
apply and except for fuel systems of the vehicle, to produce, store 
or handle cryogens in excess of the amounts listed in Table No. 
4.108-B.


Sec. 9.105.

    Cryogenic Fluid is a fluid that has a normal boiling point below 
150 deg.F.


Sec. 75.101

    Storage, handling and transportation of cryogenic fluids shall 
be in accordance with this article.
    For quantity limits for storage in buildings, see Section 
80.311.


Sec. 75.103.

    (a) Classification. Cryogenic fluids shall be classified 
according to Table No. 75.103-A.

         Table No. 75.103-A.--Classification of Cryogenic Fluids        
------------------------------------------------------------------------
                                      Corrosive/                        
    Flammable       Nonflammable     highly toxic         Oxidizer      
------------------------------------------------------------------------
Carbon Monoxide.  Air............  Carbon Monoxide  Fluorine.           
Deuterium<SUP>1......  Argon..........  Fluorine.......  Nitric oxide.       
Ethylene........  Helium.........  Nitric oxide...  Oxygen.             
Hydrogen........  Krypton........                                       
Methane.........  Neon...........                                       
                  Nitrogen.......                                       
                  Xenon..........                                       
------------------------------------------------------------------------
<SUP>1Heavy hydrogen is treated as hydrogen in this article.                 

Sec. 75.104.

    For a permit to store, handle or transport cryogens, see Section 
4.108.
    Exception: Permits are not required for vehicles properly 
equipped for and using cryogenic fluids as the primary fuel for 
propelling the vehicle or for refrigerating the lading.


Sec. 75.105.

    (a) General. Containers, equipment and devices used for the 
storage, handling and transportation of cryogenic fluids shall be of 
a type, material and construction approved [[Page 8797]] by the 
chief as suitable for such use. Approval shall be based upon 
satisfactory evidence that the design, construction and test are in 
accordance with nationally recognized standards. See Section 
2.304(b).
    (b) Unidentified Containers. Containers, equipment or devices 
which are not in compliance with recognized standards for design and 
construction may be approved by the chief upon presentation of 
satisfactory evidence that they are designed and constructed for 
safe operation.


Sec. 75.108.

    Warning labels and signs shall be posted on containers and 
equipment and at locations prescribed by the chief.


Sec. 75.205.

    Containers shall be identified by the attachment of a nameplate 
in an accessible place marked as authorized by nationally recognized 
standards or DOT regulations. See Section 2.304(b).


Sec. 75.602.

    Vehicles transporting cryogenic fluids and subject to 
requirements of this code shall:
    (a) Be placarded at the front, rear and on each side identifying 
the product. Placards shall have letters not less than 2 inches high 
using approximately a 5/8-inch stroke. Abbreviations shall not be 
used. In addition to the placard identifying the product, vehicles 
shall also bear other placards required by DOT, such as FLAMMABLE 
GAS and OXIDIZER.
    (b) Be equipped with not less than one approved-type fire 
extinguisher, with a minimum rating of 2-A:20-B:C.
    (c) Be equipped with adequate chock blocks.

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

LOS ANGELES COUNTY CODE, TITLE 32


Sec. 4.108.

    A permit shall be obtained from the bureau of fire prevention 
prior to engaging in the following activities, operations, practices 
or functions: * * *
    c.7. Compressed gases. To store, transport on site, dispense, 
use or handle at normal temperatures and pressures compressed gases 
in excess of the amounts listed in Table No. 4.108-A.

[FR Doc. 95-3590 Filed 2-14-95; 8:45 am]
BILLING CODE 4910-60-P