8774 Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices

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 Onsite 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.

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:

§ 25501.3

§ 25503.7

PD–9(R) (Docket PDA–7(R))—

Title 2 Los Angeles County Code:

§ 2.20.140

§ 2.20.150

§ 2.20.160

§ 2.20.170

Title 32 Los Angeles County Code:

§ 4.108.c.7

Table 4.108–A

§ 79.809 (b), (c) and (f)

§ 80.101(a) exception 1

§ 80.101(b)

§ 80.103(a)

§ 80.103(b)(1)

§ 80.103(b)(2)

§ 80.103 (c), (d) and (e)

§ 80.201

§ 80.202 (a) and (b)

§ 80.203

Appendix VI–A

§ 80.301(a)(2)

§ 80.301(b)(1)

§ 80.402(b)(3)(G)(i)

§ 80.402(c)(8)(A)

PD–10(R) (Docket PDA–10(R))—

Title 32 Los Angeles County Code:

§ 4.108(c)(8)

§ 9.105

§ 75.101

§ 75.103(a)

Table 75.103–A

§ 75.104

§ 75.105 (a) and (b)

§ 75.108

§ 75.205

§ 75.602 (a), (b) and (c)

PD–11(R) (Docket PDA–11(R))—

Title 32 Los Angeles County Code:

§ 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) § 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 §§ 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

§§ 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) §§ 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 § 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 § 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
Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices 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 ‘‘onsite’’ 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

Pen ̃ a, Congressman George Miller (DCA), 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 Pen ̃ a, California State

Assemblyman Robert J. Campbell and

23 other State legislators requested that

the Department deny SPCMA’s request

for a preemption determination in
8776 Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices

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 (§§ 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 (§ 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

(§ 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 (§ 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 § 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

§ 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 § 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 § 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 § 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 ‘‘cleanup’’ 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
Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices 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, § 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).
8778 Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices

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,

§§ 25501.3 and 25503.7

Summary: Federal hazardous material

transportation law (Federal hazmat law),

49 U.S.C. 5101–5127, does not preempt

§ 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. §§ 11001, et

seq. (also known as the Emergency

Planning and Community Right to

Know Act of 1986 (EPCRA)), and

§ 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 § 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 § 25501.3 and

§ 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 CarpinteriaSummerland 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, § 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 § 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 § 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
Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices 8779

operating in California that is in

compliance.

SPCMA concludes that § 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. §§ 11001, et seq., and § 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 § 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. § 1 et seq.

(repealed by Act, October 17, 1978, P.L.

95–473, § 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 § 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 § 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

§ 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 § 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

§§ 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
8780 Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices

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. §§ 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 § 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 § 302 list. A facility

is subject to the requirements of SARA

Title III if a substance on the § 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 § 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 § 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,
Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices 8781

issued pursuant to § 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 § 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 § 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 § 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 § 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

§ 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 § 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 § 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 § 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

§ 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 § 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.
8782 Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices

Pursuant to § 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

§ 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

§ 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

§ 112(r).

There is insufficient evidence in the

record to substantiate SPCMA’s claim

that § 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 § 25501.3 because it is

otherwise authorized by Federal law—

specifically, § 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, § 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 § 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 § 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 § 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 § 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

§ 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

§ 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 § 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 § 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 § 25503.7 is an

obstacle to accomplishing and carrying

out Federal hazmat law. However,

SPCMA presents no evidence that

§ 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 § 25503.7 does not prohibit storage,

but simply requires facilities to comply

with Chapter 6.95 requirements when
Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices 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 § 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 § 112(r) of the CAA Amendments.

There is insufficient information in the

record to determine whether Federal

hazmat law preempts § 25503.7.

Although SPCMA requests that RSPA

review the remaining 63 provisions of

the CHSC in the event that RSPA does

not preempt § 25501.3 and § 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:

§ 2.20.140

§ 2.20.150

§ 2.20.160

§ 2.20.170

Title 32 LACoC:

§ 4.108.c.7

Table 4.108–A

§ 79.809(b), (c) and (f)

§ 80.101(a) exception 1

§ 80.101(b)

§ 80.103(a)

§ 80.103(b)(1)

§ 80.103(b)(2)

§ 80.103(c), (d) and (e)

§ 80.201

§ 80.202(a) and (b)

§ 80.203

Appendix VI–A

§ 80.301(a)(2)

§ 80.301(b)(1)

§ 80.402(b)(3)(G)(i)

§ 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 §§ 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 § 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 § 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,

§§ 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: § 4.108.c.7, Table 4.108–A,

§ 79.809(b), § 80.101(a) exception 1,

§ 80.101(b), § 80.103(a), § 80.103(b)(1),

§ 80.103(b)(2), § 80.103(c), § 80.103(d),

§ 80.201, §§ 80.202(a) and (b), § 80.203,

Appendix VI–A, and § 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 ‘‘onsite’’ 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:

§ 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

§ 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.
8784 Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices

§ 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 § 2.20.150.

§ 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.

§ 2.20.170 sets out the formula for

calculating annual adjustments to the

schedule of fees contained in § 2.20.140

through § 2.20.160.

(2) HASA’s Arguments and Summary of

Comments

HASA states that §§ 2.20.140,

2.20.150, 2.20.160, and 2.20.170

establish fees applicable to ‘‘handlers’’

of hazardous materials. HASA notes that

§ 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 § 25513 and

§ 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 §§ 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 § 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 § 2.20.100(D),

includes storage that is incidental to

transportation in commerce, or that the

term ‘‘package’’ as used in § 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 §§ 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:

§ 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.

§ 80.103(a) states that the permit

requirement in § 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 § 4.108.

§ 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, § 2.20.130 requires the applicant

to follow the requirements of CHSC

Chapter 6.95 when preparing an HMBP.

§ 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.

§ 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.
Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices 8785

§ 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.

§ 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 § 4.108.c.7 and

§ 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 onsite storage, transportation, dispensing,

use or handling of compressed gas in

railroad tank cars.

HASA indicates that § 80.103(b) and

§ 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

§ 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 § 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, § 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. §§ 11001 et seq., and § 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 § 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
8786 Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices

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 § 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:

§ 4.108.c.7, Table 4.108–A, § 80.103(a),

§ 80.103(b)(1), § 80.103(b)(2), and

§§ 80.103 (c) and (d). There is

insufficient information in the record to

determine whether Federal hazmat law

preempts LACoC § 80.103(e).

c. Hazard Classification. (1) LACoC

Requirements. HASA challenges the

following provisions of LACoC Title 32:

§ 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.

§ 80.101(b) states that the

classification system referenced at

§§ 80.202 and 80.203 applies to all

hazardous materials, including those

materials regulated elsewhere in the

LACoC.

§ 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.

§ 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

§ 80.202(b)). Chlorine is listed, in

Appendix VI–A to Title 32, as a toxic

compressed gas that constitutes a

physical hazard.

§ 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.

§ 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
Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices 8787

by the HCS, except pursuant to a federallyapproved state plan. California is a federallyapproved 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, § 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 § 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 § 80.201, § 80.202,

§ 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:

§ 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 § 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 § 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 § 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 § 80.301(a)(2).

e. Unloading. (1) LACoC

Requirements. HASA challenges the

following provisions of LACoC Title 32:

§ 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

§ 79.809.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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 § 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

§ 79.809 are not only inappropriate but

unsafe for unloading compressed and
8788 Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices

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 (§ 79.809(b)), the

prohibition against remaining on a

siding for more than 24 hours while

connected for unloading operations

(§ 70.809(c)), and the tank car unloading

attendance requirement (§ 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 § 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 § 79.809(f) conflicts

with E–10552 and should be preempted.

HASA further requests a preemption

determination regarding

§ 80.402(b)(3)(G)(i) and

§ 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

§ 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 § 80.402(b)(3)(G)(i) and

§ 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 §§ 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 §§ 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 § 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

§ 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 § 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 § 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
Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices 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, § 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 § 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, § 5125(a)(2) of Federal

hazmat law, 49 U.S.C. 5125(a)(2),

preempts LACoC § 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 § 80.402(b)(3)(G)(i) and

§ 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:

§ 80.301(b)(1) states that containers

and tanks must be designed and

constructed in accordance with

nationally recognized standards. Title

32, § 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

§ 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,

§ 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

§ 80.101(a) exception 1 exempts ‘‘off-site

hazardous materials transportation in

accordance with DOT requirements’’

from the requirements of LACoC Article

80, including § 80.301(b)(1).

Thus, there is insufficient evidence in

the record to determine whether Federal

hazmat law preempts § 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 §§ 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 § 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 § 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
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‘‘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, §§ 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: § 4.108.c.7, Table 4.108–A,

§ 79.809(b), § 80.101(a) exception 1,

§ 80.101(b), § 80.103(a), § 80.103(b)(1),

§ 80.103(b)(2), § 80.103(c), § 80.103(d),

§ 80.201, §§ 80.202(a) and (b), § 80.203,

Appendix VI-A, and § 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 :

§ 4.108(c)(8)

§ 9.105

§ 75.101

§ 75.103(a)

Table 75.103–A

§ 75.104

§ 75.105 (a) and (b)

§ 75.108

§ 75.205

§ 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: § 4.108(c)(8), § 9.105, § 75.101,

§ 75.103(a), Table 75.103–A, § 75.104,

§§ 75.105 (a) and (b), § 75.108, § 75.205,

and §§ 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:

§ 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.)

§ 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.

§ 75.104 indicates that a permit must

be obtained to store, handle or transport

‘‘cryogens,’’ and references § 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 § 4.108.c.8,

§ 75.101, and § 75.104, SPCMA

concludes that, in the LACoC, the terms

‘‘handling’’ and ‘‘transportation’’ are

synonymous. SPCMA points out that

‘‘handling’’ is defined in LACoC § 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 abovedescribed 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:

§ 9.105 defines cryogenic fluids as

those fluids that have a normal boiling

point below 150 degrees fahrenheit.

§ 75.103(a) specifies that cryogenic

fluids shall be classified according to

Table No. 75.103–A.
Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices 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 § 9.105 differs from the

definition of cryogenic liquid contained

at 49 CFR 173.115(g). Specifically,

§ 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

§ 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

§ 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 § 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

§ 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 § 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 § 9.105, § 75.103(a), or Table

No. 75.103–A.

c. Hazard Communication. (1) LACoC

Requirements. SPCMA challenges the

following provisions of LACoC Title 32:

§ 75.108 requires that warning labels

and signs be posted on containers and

equipment at locations prescribed by

the fire chief.

§ 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

§ 2.304(b)) or DOT regulations.

§ 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 § 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

§ 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 § 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 § 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 § 75.602

are in addition to, and different from,

Federal requirements. Furthermore,

SPCMA asserts that § 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
8792 Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices

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

§ 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 § 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 § 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 § 75.602(a)

requirements ‘‘fail’’ the dual compliance

test.

The County of Los Angeles Fire

Department opposes preemption of

§ 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

§§ 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 §§ 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:

§ 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.

§ 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 § 75.602(c) that vehicles

transporting cryogenic fluid be

equipped with adequate chock blocks.

No commenter specifically addressed

§ 75.602(b) or § 75.602(c).

(3) Analysis. SPCMA does not allege

and the record does not reflect that the

requirements under § 75.602(b) or

§ 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 § 75.602(b) or

§ 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:

§ 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, § 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.

§ 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

§ 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 §§ 75.105 (a) and (b).

SPCMA specifically requests that

three issues be addressed in RSPA’s

preemption determination regarding

§§ 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 §§ 75.105 (a) and (b) should be
Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices 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 §§ 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 §§ 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:

§ 4.108(c)(8), § 9.105, § 75.101,

§ 75.103(a), Table 75.103–A, § 75.104,

§§ 75.105 (a) and (b), § 75.108, § 75.205,

and §§ 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

§ 4.108.c.7

Summary: Federal hazardous material

transportation law, 49 U.S.C. 5101–

5127, does not preempt LACoC § 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. §§ 11001 et seq. and

§ 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:

§ 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

§ 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 § 4.108.c.7. A

discussion of the LACoC permit

requirement under § 4.108.c.7, and the

rationale for RSPA’s finding that Federal

hazmat law does not preempt

§ 4.108.c.7, are at PD–8(R), above.

3. Ruling

Based on the above, Federal hazmat

law does not preempt § 4.108.7 because

the substantive permit application

requirements are otherwise authorized

by Federal law, specifically SARA Title

III and § 112(r) of the CAA

Amendments.
8794 Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices

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:

Fee group Total quantity of hazardous materials handled at any one time during the retotal quantity of hazardous materials

handled at any one time during fee group the reporting year Annual fee

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 quantity. ............................................................................................................... $110.00
Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices 8795

Fee group Total quantity of hazardous materials handled at any one time during the retotal quantity of hazardous materials

handled at any one time during fee group the reporting year Annual fee

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 § 3.1990: Ord. 89–0055 § 1.1989: Ord. 87–0001 § 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÷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 § 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 § 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 § 6, 1990.)

TITLE 32

§ 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 GASES1

Type of gas Amount

Corrosive ...................... Any amount.

Flammable (except

cryogenic fluids and

liquefied petroleum

gases).

200 cubic feet.

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.

1See Articles 74, 80 and 82 for additional

requirements and exceptions.

§ 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.

§ 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.
8796 Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices

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.

§ 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 § 100,

1993.)

§ 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.

§ 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.

§ 80.203.

For descriptions and examples of materials

included in hazard categories, see Appendix

VI–A.

Appendix VI–A—[available in RSPA Dockets

Unit]

§ 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 § 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).

§ 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

§ 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.

§ 9.105.

Cryogenic Fluid is a fluid that has a normal

boiling point below 150°F.

§ 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.

§ 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

Flammable Nonflammable Corrosive/highly toxic Oxidizer

Carbon Monoxide ...................................

Deuterium 1 .............................................

Ethylene ..................................................

Hydrogen ................................................

Methane.

Air ...........................................................

Argon ......................................................

Helium .....................................................

Krypton ...................................................

Neon .......................................................

Nitrogen ..................................................

Xenon.

Carbon Monoxide ..................................

Fluorine ..................................................

Nitric oxide.

Fluorine.

Nitric oxide.

Oxygen.

1 Heavy hydrogen is treated as hydrogen in this article.

§ 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.

§ 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
Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Notices 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.

§ 75.108.

Warning labels and signs shall be posted

on containers and equipment and at locations

prescribed by the chief.

§ 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).

§ 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

§ 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