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Frazer C. HilderAttorney, Office of Chief Counsel

HazardousMaterials

Preemption

Pipeline and Hazardous Materials Safety Administration U.S. Department of Transportation

January 2010

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Introduction

More than a century of

Federal hazmat regulation

Explosives and Combustibles

Act of 1908

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Definition

Preempt –

to take precedence over, supplant

Preemption –

displacement, supersedence

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Federal Preemption

Supremacy Clause

This Constitution, and the Laws of

the United States, which shall be

made in Pursuance thereof . . .

shall be the supreme Law of the

Land

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Federal Preemption

Two doctrines

“Field” preemption

“Conflict” preemption

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Purpose

Uniformity promotes safety

Other incentives besides preemption

• MCSAP grants to States which adopt and enforce motor carrier requirements consistent with FMCSR and HMR. 49 CFR parts 350, 355

• State inspector program for rail transportation. 49 CFR part 212

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Federal Hazmat Law

49 U.S.C. 5125 - Standards

Dual Compliance

Obstacle

Five subject matters

Highway routing

State fees

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Authority Under Another U.S. Law

Other Federal Agencies

DHS/TSA

EPA

OSHA

ATF

NRC

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Waiver of Preemption

DOT may waive preemption if it finds that the non-Federal State, local or Indian tribe requirement

• Provides the public with as equal or greater level of protection

• Does not create an unreasonable burden on commerce

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Other Statutes

Highway - 49 U.S.C. 31141

State law that

--has the same effect, may be enforced

--is less stringent may not be enforced

--is more stringent, may be enforced unless it (a) has no safety benefit, (b) is incompatible with a DOT regulation, or (c) causes an unreasonable burden on commerce.

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Other Statutes

Rail – 49 U.S.C. 20106

Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable.

When DOT has issued a regulation, or order on the subject matter, a State may have an additional or more stringent law, requirement, or order that (a) addresses a local safety hazard, (b) is not incompatible with a Federal law, regulation, or order, and (c) does not unreasonably burden commerce.

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Reaching a Decision

Defense to a citation

Lawsuit in court

DOT administrative determination

– any “directly affected” person may apply

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Administrative Process

49 CFR part 107, subpart C.

• Application

• Federal Register notice

• Public comments

• Determination

• Petition for reconsideration/judicial review

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Recent Cases

• Routing of HM shipments

• Package marking

• Hazardous waste

• Periodic vehicle inspections

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Applicability of Hazmat Law & HMR

Transportation

In Commerce

Persons

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Transportation

“Transports” or “transportation” means the movement of property and loading, unloading, or storage incidental to the movement.

49 U.S.C. 5102(13); 49 CFR 171.1

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Commerce

“Commerce” means trade or transportation in the jurisdiction of the United States—

• between a place in a State and a place outside of the State;

• that affects trade or transportation between a place in a State and a place outside of the State; or

• on a United States-registered aircraft.

49 U.S.C. 5102(1)

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Persons

Individual, corporation, company, association, firm, partnership, society, joint stock company.

Government, Indian tribe, or authority that

-offers hazardous material for transportation in commerce;

-transports hazardous material to support a commercial enterprise; or

-designs, manufactures, maintains, repairs, tests, etc. a packaging or component for hazmat

49 U.S.C. 5102(9)

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Government Authorities

• United States Postal Service has its own law, regulations, and civil penalty authority.

• Civil and criminal penalties do not apply to a department, agency, or instrumentality of the Government.

• Regulations apply to government contractors.

• Exception from HMR for certain U.S. governmental activities (DOD, DOE, ATF).

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Enforcement

Criminal prosecutions

• Investigation by IG and/or FBI

• Prosecution by Dept. of Justice

• Fine up to $250,000/$500,000

• Imprisonment up to 5 years – or 10 years when the violation involves a release of hazmat resulting in death or bodily injury.

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Enforcement

Civil penalty process

• Federal Aviation Administration

• Federal Motor Carrier Safety Administration

• Federal Railroad Administration

• Pipeline and Hazardous Materials Safety Administration

• United States Coast Guard

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Enforcement

Civil penalties

• $55,000 maximum, or $110,000 when a violation results in death, serious illness, severe injury, or substantial destruction of property.

• $275 minimum, except $495 for a violation related to training.

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Enforcement

Other actions

• Compliance Order

• Safety Advisory

• Suspension or termination of special permit or approval

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Enforcement

PHMSA procedures

• Inspection (usually unannounced)

• Exit briefing – opportunity to respond

• Violations

– Warning letter

– Ticket

– Enforcement case

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Enforcement

Enforcement cases

• Notice of probable violation

• Response

– Pay proposed penalty

– Informal conference

– Formal hearing

• Attempt to reach compromise

• Order

• Appeal

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Enforcement

Some areas of focus

– Batteries – new and recycled

– Aerosols – green gas

– Nurse tanks

– Package testing

– Systems Integrity Safety Program (SISP)

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Information

• Hazardous Materials Safety Program Website

http://www.phmsa.dot.gov/hazmat

• Hazardous Materials Information Center

1-800-467-4922

infocntr@dot.gov

• Office of Chief Counsel – 1-202-466-4400

http://www.phmsa.dot.gov/about/org/chief-counsel

phmsachiefcounsel@dot.gov

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Conclusion

Questions?