chapter 4 hazardous materials transportation regulations

Chapter 4

Hazardous MaterialsTransportation Regulations

Contents

Page

The Federal Role. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......................145Early History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............................145ICC and the Bureau of Explosives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .146Formation of the Department of Transportation . ............................147The Hazardous Materials Transportation Act of 1975. . .......................147The Current Regulatory Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ...149Related Federal Agencies and Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...169

State and Local Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .................172Evolution of State Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. ... ... ....I72Current State and Local Activities . . . . . . . . . . . . . . . . . . . . . . . ...............,..176Regulatory Consistency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......190

Conclusions and Policy Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..........196

List of Tables

Table No. Page

4-1. Federal and International Regulatory Framework forTransportation of Hazardous Materials . . . . . . . . . . . .........................149

4-2. Summary of U.S. Department of Transportation Hazardous MaterialsRegulations in Title 49 of the Code of Federal Regulations . .................151

4-3. Sample Page From the Hazardous Materials Table . . . . . . . . . . . . . .............1534-4{

4-5<

4-6.4-7

4-8.4-9*

Department of Transportation Hazard Classes . ............................154Department of Transporation Placarding Table 1 ........................,..162Department of Transportation Placarding Table 2 . . . . . . . . . . . . . . . . . . . . . . . . . .162States With Proposed or Existing Hazardous Wastes TransportationFee or Registration Requirements, 1986 . . . . . . . . . . . . . . . . . . . . .. .............178Commodities Covered by Notification Requirements, 1985 .. ................182State Right-to-Know Laws, 1985. . . . . . . . . . . . . . . . . . . . . . ....................187

List of Figures

Figure No. Page

4-1. U.S. Department of Transportation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......1504-2. Sample Shipping Document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... ... ... ..1574-3. Examples of Labels for Hazardous Materials Packages . . . . . . . . . ..............1594-4. Examples of Hazardous Materials Placards.. . ..............................1614-5. Department of Transportation Segregation and Separation Chart

for the Highway Mode . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....1644-6. States Participating in the State Hazardous Materials

Enforcement Development Program . . . . . . . . . . ..................,..,.......1744-7. States Participating in the Motor Carrier Safety Assistance Program . .........1754-8. Procedures for Inconsistency Rulings . . . . . . . . . . . ...........................1914-9. Procedures for Nonpreemption Determinations . . . . + . . . . . . . . . . . . . ...........193

Chapter 4

Hazardous MaterialsTransportation Regulations

The current Federal regulatory system governingthe transportation of hazardous materials developedover the past century with substantial industry in-volvement. Existing U.S. Department of Transpor-tation (DOT) regulations are extensive and consistof detailed engineering specifications for containers,hazard communication requirements such as vehi-cle placarding, and handling and operating require-ments for each mode of transport. Shippers and car-riers of hazardous materials must also comply withgeneral safety requirements for vehicles and vesselsand with regulations pertaining to specific types ofhazardous materials, worker safety, and environ-mental protection issued by other Federal agencies.

However, regulations contained in Title 49 of theCode of Federal Regulations (49 CFR), are not ap-plied to most intrastate highway shipments. More-over, international codes, less complex than theirU.S. counterparts, are now widely used in the airand water modes. Finally, while many States haveadopted 49 CFR wholly or in part, there is greatvariation among State regulations. Many State andlocal jurisdictions have enacted laws and regulationswhere there is an absence of Federal action or where

Federal requirements are believed to be insufficient;examples include requirements for permits and regis-tration, licensing of hazardous materials drivers, andnotification requirements. Such requirements causeconsiderable controversy, as industry compliancemay require substantial expenditures of time andmoney. Differing State and local requirements alsoimpede the development of nationally standardizedenforcement training. Although the Hazardous Ma-terials Transportation Act (HMTA) contains a pro-vision preempting State and local requirements thatare inconsistent with their Federal counterparts,there have been no comprehensive efforts to assessthe validity of existing non-Federal laws and regu-lations.

This chapter is divided into two major sections:the first part describes the development of the Fed-eral role and examines the current regulatory frame-work; the second covers State and local requirementsand questions related to regulatory consistency. Foradditional information on State and local activities,the reader is referred to OTA’s Special Report,Transportation of Hazardous Materials: State andLocal Activities, March 1986.

THE FEDERAL ROLE

Early History

In 1866, the first Federal law was passed regulat-ing the transportation of hazardous materials, spe-cifically shipments of explosives and flammable ma-terials such as nitroglycerin and glynoin oil. 1 An1871 statute established criminal sanctions againstpersons who transported specific hazardous com-modities on passenger vessels in U.S. navigablewaters in violation of Treasury Department regu-lations.2

Istat 81, July 3! 1866”

~Stat. 441, Feb. 28, 1871. See Historical Note in 46 U,S.C. 170.

Rail shipments of explosives during and after theCivil War were addressed by unmodified statutes andcontractual obligations between shippers and car-riers based on English common-law principles. Un-der the common law, common carriers were granteda public charter to operate and were obliged to pro-vide service to anyone upon reasonable request, forreasonable cost, and without unjust discrimination.Carriers could, however, prescribe conditions un-der which certain freight would be accepted. A ship-per was obliged to identify the hazards of a dan-gerous commodity, use adequate packaging, andprovide a clear warning to the carrier of the ship-ment’s hazards.

145

146 Transportation of Hazardous Materials

The establishment of the Interstate CommerceCommission (ICC) in 1887 marked the beginningof a Federal effort to impose a degree of regulatoryuniformity on all modes of transportation.3 WhileICC requirements were first developed for rail trans-portation, they were eventually extended to othermodes. As described below, ICC was the primaryregulatory agency with authority over hazardous ma-terials transportation through 1966.

ICC and the Bureau of Explosives

In 1908, Congress passed a law that would gov-ern hazardous materials transportation for morethan six decades. The Explosives and CombustiblesAct (later called the Explosives and Other Danger-ous Articles Act, or EODA) authorized ICC to is-sue regulations covering the packing, marking, load-ing, and handling of explosives and other dangeroussubstances in transit.4 The statute also prescribedcriminal penalties for shippers or carriers who vio-lated ICC regulations. EODA codified many of thecontractual obligations that had developed commer-cially between shippers and rail carriers.

Regulations adopted by ICC in 1911 to implementEODA were based on rail safety standards devel-oped by the Bureau of Explosives, a division of theAssociation of American Railroads (AAR). Foundedin 1905, the Bureau of Explosives developed stand-ards for handling explosives and other dangerousmaterials by the railroads and assisted with the man-agement of private contracts between shippers andrail carriers to promote development of uniform re-quirements. EODA amendments enacted by Con-gress in 1921 authorized ICC to utilize the servicesof groups such as the Bureau of Explosives in its haz-ardous materials safety programs Subsequently,ICC delegated extensive rulemaking and enforce-ment responsibilities to the Bureau.

Under EODA, all hazardous materials transpor-tation activity was barred unless specifically author-ized by ICC. As a consequence, ICC regulationswere developed on a case-by-case basis in response

‘The Interstate Commerce Commission was created by the Inter-state Commerce Act, 24 Stat. 529, Feb. 4, 1887.

418 U.S. C. 831-835 (831 has been substantially rewritten, and 832-835 have been repealed).

541 Stat. 144, Mar. 4, 1921. See 18 U.S.C. 834, Historical and Re-vision Notes.

to specific industry initiatives. Each time a new com-modity or container was produced, a special per-mit had to be approved by ICC. This process is stillused, and new permits are now known as exemp-tions. (For more information, see chapter 3.) Peri-odically, if ICC had granted a series of requests per-taining to a particular section of the regulations, thatsection would be revised and streamlined, usuallyfor specific commodities. This pattern has continued,so that today’s packaging authorizations are ad hocand individual in character.

Over the next 40 years, the roles of ICC and theBureau of Explosives continued to grow as rulesoriginally designed for the railroads were applied toother modes of transport. 6 The U.S. Coast Guardwas required to adopt ICC regulations for classi-fication of hazardous materials and for marking,labeling, packing, and certification of portable con-tainers. 7 Regulatory authority over highway trans-portation was given to ICC in the 1930s. The CivilAeronautics Board (CAB), in conjunction withsafety officials in the U.S. Department of Com-merce, developed the first regulations for transpor-tation of hazardous materials by air in the early1940s. This was also done through wholesale adop-tion of ICC rules. s

ICC relied heavily on the technological expertiseof nongovernmental groups for the development of

dln addition t. the ~xtensic~n of Interstate Commerce Commission(ICC) rules to other modes of transport, other amendments to the Ex-plosives and Other Dangerous Articles Act passed after 1921 increasedthe list of hazardous materials addressed by ICC and regulated ship-pers and common carriers (for rail and highway). See Historical andRevision Notes in 18 U.S.C. Chapter 39.

746 U.S.C. 170(7)(a). Additional laws were passed that applied tovessels carrying dangerous cargoes, some of which covered internationalshipments. See, for example, The International Convention for Safetyof Life at Sea, 50 Stat. 1121, 1929; Tank Vessel Act of 1936, Chapter729, 49 Stat. 1889, June 23, 1936; and the Dangerous Cargo Act of1940, 54 Stat. 1023, Oct. 9, 1940. The influence of international regu-lations is discussed more fully later in this chapter. The U.S. CoastGuard was established by an act of Congress on Jan. 28, 1915 (14U.s.c. 1).

BThe Civil Aeronautics Board (CAB) was created in 1938 by theCivil Aeronautics Act. The purpose of the law was to regulate air car-riers and promote the development of safe air commerce. The FederalAviation Act, Public Law 85-726, Aug. 23, 1958, contained provisionsauthorizing the assessment of penalties for violations of the hazardousmaterials regulations and allowing exemptions from existing rules andregulations. See 49 U.S. C. 1472(h) and 142 l(c). The Federal AviationAdministration was established by this statute and assumed the noneco-nomic regulatory functions of CAB. CAB was continued as an eco-nomic regulatory agency.

Ch. 4—Hazardous Materials Transportation Regulations . 147

new regulations, because the size and professionalknowledge of in-house staff was limited.9 In 1960,Congress extended ICC’S ability to use the servicesof outside organizations by authorizing the use ofcarrier and shipper associations in addition to theBureau of Explosives.]” As a result of this action,the Tank Car Committee of AAR was given theauthority to approve applications submitted to ICCfor designs, materials, construction, conversions, oralterations of tank cars.

Formation of the Departmentof Transportation

In 1966, authority to regulate the transportationof hazardous materials was transferred from ICC,the Department of the Treasury, and CAB to a newFederal agency, DOT.1l Within DOT, separatemodal administrations were retained to preserve or-ganizational continuity. Moreover, modal admin-istration functions specified by the act could not bedelegated to other Department administrations bythe Secretary of Transportation.12 Thus, althoughthe Secretary had Cabinet-level responsibility forall transportation safety standards (including haz-ardous materials), each modal administration wasallowed to promulgate independent regulations.

Under the new organization, the Federal Avia-tion Administration (FAA) was responsible for airtransportation, the Federal Highway and RailroadAdministrations for land, and the Coast Guard forwater, Regulations for each mode of transport werepublished in different parts of the Code of FederalRegulations (CFR), The National TransportationSafety Board (NTSB) was also established to deter-mine and report the cause of transportation acci-dents and conduct special studies related to safety

“See U.S. Congress, Senate Committee on Commerce, Science} andTransportation, Hazardous Mareriah Transportation (Washington, DC:U.S. Government Printing Office, 1979), pp. 24-25.

‘“18 U.S.C. 834(e).1 IThe ~1 s Department of Transportation was created by the De-

partment ~~f Transportation Act, Publlc Law 89-670, 49 U.S.C. 1651.Economic regulatory functions stayed with the Interstate CommerceCommws[on, the C[\rIl Aeronautics Board, and the Federal MaritimeCommission.

‘: The Department of Transportation Act states that: “The func-tions, powers, and duties specified in this Act to be carried out by eachadministrator shall not be transferred elsewhere in the Department un-less subm]tted pursuant to prowslons of Chapter 9 of Title 5, U. S, C.,or by Statute.” See 49 U.S.C. 1652(e).

and accident prevention. A separate entity, the Haz-ardous Materials Regulations Board, was created bythe Secretary of Transportation to coordinate allhazardous materials activities within the Depart-ment. The Office of Hazardous Materials, whichserved as the staff for the Board, proposed revisionsto the existing hazardous materials regulatory pro-gram.13 However, each proposed change had to beconsidered and approved first by the affected mo-dal administrations. Some of the major revisionsplanned by the Board, such as the development ofcontainer performance standards, have still not beenimplemented by DOT, although a rulemaking forsuch standards is now in progress.

Legislation pertaining to hazardous materialstransportation was passed in 1970 imposing mod-est requirements on DOT.14 However, DOT wasunable to implement the statute as staff increasesrequested by the Department were not approved by

Congress. 15 The provisions of this law were incor-porated into the HMTA of 1975.

The Hazardous MaterialsTransportation Act of 1975

Persistent administrative and organizational dif-ficulties in the early 1970s led DOT to seek legisla-tion that would consolidate hazardous materials reg-ulatory authority. However, little happened untilthe crash of a 707 cargo jet hauling several tons ofhazardous materials in 1973. ” The accident in-quiry clearly showed a general lack of compliance

1 IRegu]atory revisions proposed by the Hazardous Materials Regu-lations Board in 1968 addressed the following topics: modal require-ments, international consistency, container performance standards,labels for packages, and vehicle placards. In addition, the Board rec-ommended the establishment of a centralized system for data collec-tion, an increase in shipper and manufacturer inspections, and the de-velopment of training programs for emergency response personnel. SeeU.S. Congress, op. cit., pp. 31-32.

‘%e Hazardous Materials Transportation Control Act of 1970, Ti-tle 111 of Public Law 91-458, 49 U.S. C. 1761. The Secretary of Trans-portation was required to establish facilities and technical staff for evalu-ating hazards associated with hazardous materials; establish a centralreporting system for hazardous materials accidents; conduct a reviewof all aspects of hazardous materials transportation and recommendappropriate steps to be taken immediately to provide greater controlover shipments; and prepare an annual report for Congress on regula-tory, enforcement, and exemption activities as well as accident andcasualty statistics.

15u.s. congress, O p . cit., P. 33’lbNational Transportation Safety Board, Aircrafi Accident Report,

NTSB-AAR-?4-16 (Washington, DC: 1974).


with existing requirements due to fragmentation ofthe regulatory authorities, complexity of the regu-lations, lack of industry familiarity at the workinglevel with Federal regulations, and inadequate gov-ernment surveillance.17 These findings echoed theconclusions of studies conducted by the NationalResearch Council, the Comptroller General to Con-gress, and DOT.18

The HMTA was finally passed in 1975.” The in-tent of the law was to improve regulatory and en-forcement activities by providing the Secretary ofTransportation with broad authority to set regula-tions applicable to all modes of transport. Specifi-cally, the HMTA:

expanded DOT’s potential jurisdiction to anytraffic “affecting” interstate commerce (49U.S.C. 1802);authorized the designation of hazardous mate-rials, defined as materials or classes of materi-als in quantities and forms that the Secretary

of Transportation determines may pose an un-reasonable risk to health and safety or prop-erty (49 U.S.C. 1803);authorized DOT to issue regulations related topacking, repacking, handling, labeling, mark-ing, placarding, and routing; and expanded theregulated community to include those whomanufacture, test, maintain, and reconditioncontainers or packages used to transport haz-ardous materials (49 U.S.C. 1804);authorized the establishment of a registrationprogram for shippers, carriers, and containermanufacturers and reconditioners (49 U.S.C.1805);codified DOT procedures for granting regula-tory exemptions (49 U.S.C. 1806);provided the Secretary with the ability to con-duct surveillance activities (e.g., hold hearingsand conduct investigations), establish record-

“Ibid., p. 37.18* National Academy of Sciences, National Research Council, A

Srudy of Transportation of Hazardous Materials (Washington, DC:National Academy Press, 1969); and U.S. Congress, Senate Commit-tee on Commerce, Transportation Safety Act of 1974, Report No. 93-1192 accompanying S. 4057 (Washington, DC: U.S. Government Print-ing 0ff3ce, Sept. 30, 1974).

l~it]e 1 of public Law 93-633, Jan. 3, 1975, 49 U.S.C. 1801. Title

II addressed rail safety and Tide 111 made the National TransportationSafety Board an independent agency. The Explosives and Other Dan-gerous Articles Act was repealed by this statute.

keeping requirements, and conduct inspections.Provisions of the 1970 Act were also includedin this section of the HMTA, such as submis-sion of an annual report to Congress (49 U.S.C.1808);authorized DOT to assess civil and criminalpenalties for violations of the HMTA (49U.S.C. 1809); anddefined the relationship between the Federalregulations and those of State and local gov-ernments, preempting non-Federal rules foundto be inconsistent with the Federal program andestablishing a procedure whereby DOT couldwaive preemption (49 U.S.C. 181 1).

Shortly after the HMTA was enacted, the Secre-tary created the Materials Transportation Bureau(MTB) within the Research and Special ProgramsAdministration (RSPA), which was designated thelead DOT agency for hazardous materials regula-tion.* MTB was delegated responsibility for issuingall hazardous materials transportation regulationsexcept those governing bulk transport by water;these remained with the Coast Guard. However,the modal administrations continued to be respon-sible for safety regulations, including the develop-ment of hazardous materials regulations, applicableto each mode. Inspection and enforcement author-ity was divided between MTB and the modal ad-ministrations.

In 1976, MTB consolidated and amended the haz-ardous materials regulations based on changes origi-nally proposed in the late 1960s, prior to passageof the HMTA.20 FAA and part of the Coast Guardregulations, contained in Titles 14 and 46 of CFR,were incorporated into 49 CFR which already con-tained the highway and rail regulations. Regulationsfor bulk transport by water remained in 46 CFR.In addition, MTB amended existing requirementsfor shipping papers, marking, labeling, and placard-ing, and added new hazard classes. The format ofthe regulations has essentially remained the samesince 1976. Subsequent regulatory amendments,though numerous, have been narrowly focused.

*The Hazardous Materials Board was terminated and the responsi-bilities of the Office of Hazardous Materials were transferred to thenewly formed Materials Transportation Bureau.

*“See footnote 13. Proposed rules were published on Jan. 24, 1974(Docket HM-103, 39 F.R. 3164 and Docket HM-112, 39 F.R. 3022).Final rules were published on Apr. 15, 1976, 41 F.R. 15972.

— —

Ch. 4—Hazardous Materials Transportation Regulations 149

The Current Regulatory

Overview

While RSPA issues most of the

Framework

hazardous mate-rials regulations under the HMTA, DOT modaladministrations, other Federal agencies, private do-mestic groups, and international organizations sig-nificantly influence the movement of hazardous ma-terials in the United States.21 Table 4-1 indicatesthe modes of transport addressed by the major reg-ulatory and standard-setting bodies concerned withthe transportation of hazardous materials.

The regulatory responsibilities of RSPA and thefour modal administrations within DOT are indi-cated in figure 4-1.22 Regulations issued by RSPAcover activities of both shippers and carriers of haz-. .ardous materials for all four modes of transport (ex-cept for bulk shipments by barge or ship, which aregoverned by Coast Guard regulations) as well as con-tainer manufacturers. RSPA also carries out inspec-tion and enforcement activities for multimodal ship-pers and container manufacturers. RSPA regula-tions, summarized in table 4-2, are located in 49CFR. More than 30,000 hazardous materials are sub-ject to these regulations. Although the HMTA au-thorized DOT to regulate both interstate and in-trastate transportation of hazardous materials byall modes, the regulations have not been appliedto most intrastate highway shipments.23 Thus,unless State and local governments adopt 49 CFRand specifically apply it to intrastate highway trans-

‘iIn 1985, the Research and Special Programs Administration(RSPA) was reorganized. The Materials Transportation Bureau was abol-ished and its responsibilities were transferred to the Office of PipelineSafety and the Office of Hazardous Materials Transportation withinRSPA. RSPA has both rulemaking and enforcement functions pertain-ing to the transportation of hazardous materials. See 50 F.R. 45728,NOV. 1, 1985.

2249 CFR 1.46, 1.47, 1.48, 1.49, and 1.53 contain delegations of au-thority for the U.S. Coast Guard, the Federal Aviation Administra-tion, the Federal Highway Administration, the Federal Railroad Ad-ministration, and the Research and Special Programs Administration,respectively.

‘Intrastate shipments of hazardous wastes and substances (desig-nated by the U.S. Environmental Protection Agency) and flammablecryogenic liquids in portable tanks and cargo tanks are covered by Fed-eral regulations. See 49 CFR 171.1.

Table 4-1 .—Federal and International RegulatoryFramework for Transportation of Hazardous Materials

Type of regulatoryor standard-setting body Highway Rai l A i r Water

Department of TransportationAdministration:

Research and SpecialPrograms Administration . .

Federal Highway Administra-tion—Bureau of MotorCarrier Safety. . . . . . . . . . . .

Federal RailroadAdministration a . . . . . . . . . .

Federal AviationAdministration . . . . . . . . . . .

United States CoastGuard b. , . . . . . . . . . . . . . . . .

Other Federal agencies:Environmental Protection

Agency . . . . . . . . . . . . . . . . .Nuclear Regulatory

Commission . . . . . . . . . . . . .Occupational Safety and

Health Administration . . . .

International organizations:United Nations—Committee of

Experts on the Transport ofDangerous Goods . . . . . . . .

International Atomic EnergyAgency . . . . . . . . . . . . . . . . .

International Civil AviationOrganization. . . . . . . . . . . . .

International Air TransportAssociation . . . . . . . . . . . . .

International MaritimeOrganization. . . . . . . . . . . . .

x x

x

x

x x

x x

x x

x x

x x

x

x

x

x

x

x

x

x

x

x

x

x

x

x

x

x

xaThe Tank Car Committ- of the Association of American Railroads iS autho-

rized to approve new tank car designs.%he National Cargo Bureau, Inc., is authorized by the Coast Guard to assist with

the administration of international regulations for cargo loading and storage.

SOURCE: Office of Technology Assessment.

port, most local shipments of gasoline and other haz-ardous materials are not subject to Federal regu-lation.

Data collection is another activity undertaken byRSPA, other DOT administrations, and other Fed-eral agencies. Chapter 2 describes these activities inmore detail, focusing on the limitations of existingefforts to obtain commodity flow and accident in-formation, It is significant from a regulatory perspec-tive that although the HMTA allows DOT toestablish a registration program, current registra-tion requirements are limited to certain groups ofshippers, carriers, and container manufacturers

Figure 4-1 .—U.S. Department of Transportation

t

t 1 I 1

. Issues general safety rules and regulations regarding themanufacture, operation, and maintenance of aircraft.

● Develops hazardous materials regulations for airtransport.

. Responsible for enforcing regulations pertaining to airtransportation of hazardous materials.

t

● Issues regulations for rail safety including equipmentstandards and operating practices and requirements fortrack maintenance.

● Develops hazardous materials regulations for railtransport.

. Responsible for enforcing regulations pertaining to railtransportation of hazardous materials including thosegoverning the manufacture and maintenance of tank

1 cars,

+

BuralJa$

C8rrf@rsar!sy

● Issues regulations for the design, construction, equlp- . Issues and enforces aeneral motor carrier safety regula-ment, anti maintenance of commercial vessels includingbulk containers used to transport hazardous materials,

. Develops hazardous materials regulations for nonbulkmarine transport.

. Responsible for enforcing regulations pertaining to watertransportation of hazardous materials.

. Operates the National Response Center and responds tospills of hazardous materials.

aFomerly Ihe Materials Transportation Bureau

SOURCE Off Ice of Technology Assessment

tions covering motor ~arriers, drivers, and vehicles.● Develops hazardous materials regulations for highway

transpon.. Administers the Motor Carrier Safety Assistance

Program.. Responsible for enforcing regulations pertaining to high-

way transportation of hazardous materials, including re-quirements for tank truck manufacture and maintenance.

t● Issues intermodal regulations designating and classifying

hazardous materials; prescribing safety standards forcontainers (except those used for bulk water ship-ments); establishing requirements for markings, labels,and placards; and specifying handling and other in-transit requirements including routing.

● Issues specific packaging exemptions.. Responsible for inspection and enforcement of container

manufacturers and multimodal shippers,. Serves as Department of Transportation liaison to other

Federal regulatory agencies.● Administers the State Hazardous Materials Development

Enforcement Program.


and reconditioners.24 A more comprehensive reg-istration program would provide DOT with basicdata on the industry it regulates.

The modal administrations are also responsiblefor developing and enforcing hazardous materialsregulations applicable to each mode. In addition,they have jurisdiction over general safety regulationsfor operations, vehicles, and vessels under other Fed-eral statutes. 25 Despite monthly intermodal meet-ings, there is little coordination among the DOTagencies.

Two other Federal agencies, the U.S. Environ-mental Protection Agency (EPA) and the NuclearRegulatory Commission (NRC), establish transpor-tation-related requirements for hazardous substancesand wastes and radioactive materials. The Occupa-tional Safety and Health Administration (OSHA)is responsible for the safety of workers employed byshippers and carriers of hazardous materials. Whilethe regulatory role of ICC has been diminished, car-riers are required to publish rates and obtain oper-ating certificates. The Department of Defense (DOD)and the Department of Energy (DOE), as majorshippers and carriers of hazardous materials, havealso established some additional transportation re-quirements for their own shipments. In addition,packages containing hazardous materials sent bymail must comply with DOT and U.S. Postal Serv-ice regulations; chapter 5 describes training avail-able for Postal Service employees.

z~he following are examples of registration requirements that havebeen established by the U.S. Department of Transportation (DOT):shippers and carriers of flammable cryogenic liquids must comply withregistration and driver training requirements (see 49 CFR 173.11,177.816, and 177.826); reconditioners of steel drums (DOT specifica-tions 17C, 17E, and 17H) must obtain registration numbers from DOTand mark drums qualified for reuse with such numbers (see 49 CFR173.28(m)(3)(ii)); manufacturers of DOT specification containers mustregister a symbol with DOT if their full names are not provided oncontainers (see “marking sections” for each specification in 49 CFR178); independent inspection agencies who wish to perform cylinderinspections and verifications must obtain DOT approval (see 49 CFR300(a)); and shippers of highway route controlled quantities of radio-active materials, such as spent fuel, must file specified information withDOT within 90 days after a package is accepted by a carrier (see 49CFR 173.22(d)).

‘sFor example, Bureau of Motor Carrier Safety activities are author-ized by the Motor Carrier Safety Act of 1980 (Public Law 96-296), theSurface Transportation Act of 1982 (Public Law 97-424), and the Mo-tor Carrier Assistance Act of 1984 (Public Law 98-554). Federal Rail-road Administration activities are authorized by the Federal RailroadSafety Act of 1970, as amended (45 U.S.C. 431 et seq.). Federal Avia-tion Administration activities are authorized by the Federal AviationAct of 1958 (72 Stat. 744).

Table 4-2.—Summary of U.S. Department ofTransportation Hazardous Materials Regulationsin Title 49 of the Code of Federal Regulations

Part 106 prescribes general rulemaking procedures for adopt-ing Office of Hazardous Materials Transportation regu-Iations.a

Part 107 contains procedures for the submission and reviewof packaging exemption applications, inconsistency rul-ings, and nonpreemption determinations. Enforcement au-thorities are also described.

Part 171 is a general introduction to the hazardous materi-als regulations. Special requirements for hazardouswastes are included, as well as definitions of terms anda list of technical documents incorporated by referenceinto the regulations. Reporting requirements for hazardousmaterials accidents are also specified.

Part 172 contains the Hazardous Materials Table. The tablelists the hazardous materials and hazard classes subjectto regulation; appropriate requirements for labels, pack-aging, and air and water shipments are referenced. In ad-dition, Part 172 includes detailed regulations for shippingpapers, markings, labels, and placards.

Part 173 indicates the types of packaging that maybe usedby shippers of hazardous materials. General shipment andpackaging regulations are followed by more specific re-quirements for certain hazard classes. Hazard class defi-nitions are also contained in Part 173.

Part 174 prescribes regulations for rail transport. Generaloperating, handling, and loading requirements are speci-fied, as well as detailed requirements for certain hazardclasses.

Part 175 applies to passenger and cargo aircraft shipmentsof hazardous materials. The regulations include quantitylimitations, loading and handling requirements, and spe-cial requirements for certain hazard classes.

Part 176 addresses nonbulk transportation of hazardous ma-terials by waterborne vessels. Requirements for accept-ing freight, handling, loading, and stowage are prescribed.Coast Guard regulations for bulk shipments of hazardousmaterials are contained in Title 46 of the Code of FederalRegulations.

Part 177 contains regulations for the highway mode; they ap-ply to common, contract, and private carriers. In additionto regulations for handling, loading, and stowage, rout-ing rules for high-level radioactive materials and other in-transit requirements are specified.

Part 178 presents detailed specifications for the fabricationand testing of packaging described in Part 173.

Part 179 prescribes detailed specifications for rail tank cars.Procedures for obtaining Association of American Rail-roads approval of new tank car designs or changes to ex-isting ones are provided.

%he Off Ice of Hazardous Materials Transportation was formerly the MaterialsTransportation Bureau.


RSPA serves as the DOT liaison with other Fed-eral agencies for hazardous materials. Memorandaof Understanding have been signed with EPA,NRC, and DOE delegating responsibilities underspecific laws. One Federal coordinating group doesexist, the National Response Team (NRT), but it

152 . Transportation of Hazardous Materials

is concerned primarily with emergency responseactivities. Aside from these agreements and NRT,however, there are no formal mechanisms for in-teragency coordination of regulatory matters. Whilethe division of responsibilities among multiple Fed-eral agencies means that modal safety concerns andquestions relating to radioactive or hazardous wastematerials are addressed by those with appropriateexpertise, it also means that when issues arise thatrequire the attention of more than one agency, amethod of ensuring effective coordination does notexist. Interagency regulatory issues generally takeyears to resolve, and the range of options consid-ered by one agency to address a problem is oftenlimited because actions involving others are notstudied. Chapters 2, 3, and 5 illustrate some inter-agency coordination problems that exist.

Private domestic organizations continue to playan influential role in the development and imple-mentation of regulations governing the transporta-tion of hazardous materials. Such reliance on in-dustry for technical input is inevitable in light ofRSPA’s small staff and budget restrictions. For ex-ample, staff levels have decreased from 143 positionsin 1979 to 111 in 1985.26 These decreases have oc-curred despite increasing regulatory demands onRSPA staff and rising public concerns about safety.

Other organizations, like AAR, develop standardsand testing requirements, conduct inspections, andprovide their members with information on exist-ing and proposed regulations.27 Moreover, a num-ber of international regulatory bodies have estab-lished recommendations and standards affecting allmodes of transport. At an accelerating pace, inter-national regulations governing the transportationof hazardous materials are being used instead of

2%taff levels are for both hazardous materials transportation andpipeline safety offices. There have not been any significant trends inthe U.S. Department of Transportation’s budget. Funding appropri-ated by Congress in 1985 was $6.114 million. Data provided by theResearch and Special Programs Administration, Apr. 15, 1986.

~Tvarious organizations publish genera] standards for hazardous ma-terials that are applied to the transportation field. These groups in-clude the American Society of Mechanical Engineers, the AmericanSociety for Testing and Materials, the Compressed Gas Association,the Institute of Makers of Explosives, the National Association of Cor-rosion Engineers, and the National Fire Protection Asscxiation. 49 CFR171,7 indicates the organizations and standards incorporated into thehazardous materials regulations by the U.S. Department of Transpor-tation.

DOT regulations. This is particularly true for theair and water modes where international require-ments that must be followed for overseas shipmentsare recognized by DOT for domestic use.

State and local governments also regulate mattersthat can be classified as accident prevention and pro-tection of public safety, such as routing, permits,or licenses. Requirements set by States and locali-ties focus primarily on highway and rail transportand often vary from those established by the Fed-eral Government and other jurisdictions. Interjuris-dictional issues are addressed later in this chapter.

The following sections describe existing hazard-ous materials regulations relevant to all four modes(intermodal) and those applicable only to the high-way, rail, air, or water mode. Each section also dis-cusses the private domestic and international orga-nizations active in the regulatory process. Theresponsibilities of other Federal agencies are pre-sented in a separate section at the end of the chap-ter. Enforcement activities and training are discussedin chapter 5.

Intermodal

Regulations applicable to all modes of transportconsist of two basic types of requirements set byRSPA: use of authorized packaging to ensure effec-tive containment during transport; and clear com-munication of the hazards of the cargo through ship-ping papers, markings, labels, and vehicle placards.Shippers begin the regulatory process by identify-ing the hazards of their cargo.

Classification of Hazardous Materials.–Hazard-ous materials subject to RSPA regulations are listedin the Hazardous Materials Table in Part 172.101of 49 CFR. A sample page of the table is shown intable 4-3. The Hazardous Materials Table indicatesthe hazard class to which each material belongs andreferences the packaging, labeling, and special re-quirements applicable to rail, air, and water trans-portation that must be met by shippers and carriers.The hazard classes designated by RSPA are definedin table 4-4.

In those instances where a material is not listedin the Hazardous Materials Table, the shipper mustevaluate it against the criteria for all of the hazardclasses. However, the regulations contain no explicit


Table 4.3.—Sample Page From the Hazardous Materials Table

A

+E

[

i

1E,

1

El

I

EI

(?)

tluz~rdeus m~lentil$ dcscnpt,ons md p r o p e r

sh, ppmg “MIW,

ICC(YI cycluhecancsulfonyl pcromde, morefhan 82%, wetnd with ku [han 12% wafer

LceIyl cyclohcxmesulphonyl pcroxltle, nofmore than 82% werttd with not k than/2% warer .% Organtc pcroxlde, sohd.no$

uxtyl cyclohcxanetul honyl pcroxfldc, notrm o r e lhan J2% m m u(ion see C)runmc

peronde. liquid or tolutton, n o s -

tcetylcnc

lCC@i7# (hqutd)Icelylrne salter nllrcweicetylenc tetrabromt&tCCt Yl td}dc

4CCIYI Peroxldc, not more fhon 2S% mdurmn &e Ac.etyl pcro~ldc $cduuon, noIover 15% pemmdr

fcetylprroxide whd, or more rhan 23% msolulton

\cctyl pcromde $oIutton, noI owr 25%prroxdde

4cld bu[yl phosphate

kc)d carboy. empty Sec Csrboy, empty\c)d, Ilqu!d, n o s

Icrolcm, mhtbl!ed (RQ-// 4M)

Acryltc ● cid

Acrylomlnle (R@/02/4J 41

Actuat ing carlrtdge, c~plostve (@cxfmgwsher, 0? W/W)

Adhewvt

Adttewe

Adlptc wad (RQM12fV2270)Aero$olproduct tie htlpKS4Cd W. n 0.S.Aw, compressed

AIr condmonmg machme See Re(ngeratmmachmc

Awcrafl rocket cngmc (Co?nmettwf)

Atrcraft rocket cngme lgmler (Commercu?l,

Auplancj7arc k Fweworks, SPCCUIAlco!mhc tXVtlS&

Alcohohc beverage

Alcohol, n os

Alcohol, n os

Aldnn (R@ f/(14M)Aldnn, cast toltd (RQ//LI4X)Aldno mmturc, dry (wh mm than 65%

aldnn) (R@l/(14S4)Aldnn IIwlure, dry , with 65% or less aldrt

{RQ1/t24MAldn; mmture, hqutd (wtth MLWU than @%

aldnn) (RQ1/t14W)Aldnn mmturc, hqutd, with 60% or ku

aldnn (R@l/f24J4)AlbfIne (cor?vmv) Iqmd, n o s

Alkanemlfomc ad

Alkyl dummum Ad&x see PyropboncIquld, n o i

Allc~hnoAllyl slcohol (R@)(XV4$ 4)

Allyl brotmdc

E Allyl chloride (R@100Q/4M)

AHyl chlorocwbonate

Allyl chlorofomrmte Se Allylchkmwubmmte

Allyl tnchlorosdane

Alummum dkyl Set Pyrophorw Iqutd,nos

(3)

Hazard

CIU9

orbtidrn

Iumnuhlegas

orbtdden‘orbtddemIRM .4‘orromve

muted

‘orbdden

hgamcPeruxlde

orrwmemalend

Orros!ve

nutan.1

IunmableItqu,d

omomvenmlend

kmmableItqu)d

‘Ian Cexpkmve

‘otnbu.ttblehq”]d

I-bleliquid

IRM.E

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l~mm.bledid

?amm~blesold

qsmm~bkIqwd

)omlmtobhhquid

I-blehad

Iiquld‘owcm B)RM-A‘OIMM B

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‘oiwn B

)RM-A

;OtlwlveItUteMl

:OrrmwaIlmtend

)RM-AFlsmmWe

llqunl

Flamtm8blebqtud

F1-bkeIqutd

PlammnbkoI)qu)d

Cmloawem~tend

(3A)

.ienw

croon

umber

N208:

‘N2w!

fNIOO

IN250IN 18!N

‘N.20&

TN’#3&

TN171

iAll13

JNI09

JN221

rNtOB

IN I )3

JNI13

VASOI

UNtOC

WA!479

IJN279

LJNt17

LWI17

uN19k

UN19E

NA27fNA27t

NA27t

NA27t

NA27f

NA27(

NA171

UN251

NA’29(f.JNlol

UNlot

ml 1(

IJN17’

lJN17

(4)

IAMMs)reqmred

(J ntiexcepwd)

%mmablep

time‘orrouve

)rgmtcPf;oxdeJmosive

:Orro,,veFhmmable

hqu)d andPcuwm

L%tToswe

Fiammsblebqu]d dP.UXI

Exp&mve C

None

mmtltlbkcIiqutd

Now

Nomflunnubkcm

FlmmmsM4MM

Flammablesold

ma-wIiquld

None

khmllmkkeIiqwd

Notte

PolwtlNowPoimn

None

Pomml

None

Corromve

Corrwlve

NOWF1-bke

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FhmmbleIqtttd

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(d

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io”e

7950573 2U

179 15s

179244

179244

Vo”e

179244

N o m

179114

1’73 IISa

17s till

179.305

None

None

t79 118

1731 lb

179118

179 I l%

179.864179 50s179204

17s 505

17s 345

179Mb

179.2u

179.244

17$ L5a5NatM

179118

None

Natn

Nom

m

$pwdii

79209

79 5to73247

79222

73245

73245

72 122

73245

79 t 18

low

7$ 1s2

7s 5m

79.802

173 22s

179 2s8

I?a 125

%XM

179125

173876173610179876

173510

178.861

173510

17 S.240

179245

179510179119

179 I 10

179,119

179 2s8

179 28C

(6)

bxtmum net quututy

m one ~ck~e

(d

bqer

M-ryulg

.Crdt w

mdcu

wbidden

) gdlottlquart

orkdden

quart

quut

orbtdden

quart

orbtddet

0 pound,

0 hmll

qw-1

10 Ikmil

60 pun

Mddm

be178 II

to limit

w

40 Itmtt

U1 pottmVo hmi4K3 pod

Vo limit

I quart

No hmit

I quut

\ ptnu

No Iimtt1 quart

Forbddt

Forbta

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Fwbtd&

(a)

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urcrdt

only

M3 pnundl

} galbm@OIl

quart

~lona

pmta

quut

pmu

quu’t

50 pound,

m lam)!

o pfktu

10 lttmn

oop0Un4

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5 POUndo

o@flmM

h bmtt

o gso.nn

Vo Ilntlt

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!00 pound

Vo hmll

}5 g800w

No Itm!t

5 @lolls

I pllotl

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10 gdklol

10 @Onl

5 pmtm

10 @mU

—a)

up

,Wel—

,2

,2

,2

,2

,2

.2

,2

,2

,2

1,s

1,3

1,2

1,2

1,2

1,2

1,21,21,2

1,2

1,2

1,2

1,2

1,2

1,2

1,2

1,3

I

I

—bl

m.

Uer

aml

,2

,2

,2

,2

,2

,2

1,2

1,21,2

1,2

1,2

1,2

1,2

1,2

1

1

1

5

5

1

Otber requirements

eep dry that cwbq: not pcrmmed on PS8.genaer vessels

II*M cm+toyi m tmmptrs not pcrntt[md u n d e rdeck

;OEp COOl

:eep cod Slow twsy f r o m Iwmg quartcri

Leep cool

:eep cool d dry

U flub pmnt less dun 141 deg F, tegregtlmamnw u Ior flammdAe Iqutds

Keep dq

SOURCE: 49 CFR 172.101


Table 4-4.—Department of Transportation Hazard Classes

Hazard class Definition Examples

Flammable liquid

Combustible liquid

Flammable solid

Oxidizer

Organic peroxide

Corrosive

Flammable gas

Nonflammable gas

Irritating material

Poison A

Poison B

Etiologic agents

Radioactive material

Explosive

Blasting agent

Any liquid having a flash point below 100° F as determined by testslisted in 49 CFR 173.115(d). Exceptions are listed in 49 CFR173.1 15(a).

Any liquid having a flash point at or above 100° and below 200° Fas determined by tests listed in 49 CFR 173.115(d). Exceptionsare listed in 49 CFR 173.115(b).

Any solid material, other than an explosive, liable to cause firesthrough friction or retained heat from manufacturing or process-ing, or which can be ignited readily creating a serious transpor-tation hazard because it burns vigorously and persistently (49CFR 173.150).

A substance such as chlorate, permanganate, inorganic peroxide,or a nitrate, that yields oxygen readily to stimulate the combus-tion of organic matter (49 CFR 173.151).

An organic compound containing the bivalent -O-O- structure andwhich may be considered a derivative of hydrogen peroxide whereone or more of the hydrogen atoms have been replaced by organicradicals. Exceptions are listed in 49 CFR 173.151(a).

Liquid or solid that causes visible destruction or irreversible altera-tions in human skin tissue at the site of contact. Liquids that se-verely corrode steel are included (49 CFR 173.240(a)).

A compressed gas, as defined in 49 CFR 173.300(a), that meets cer-tain flammability requirements (49 CFR 173.300(b)).

A compressed gas other than a flammable gas,

A liquid or solid substance which on contact with fire or when ex-posed to air gives off dangerous or intensely irritating fumes. Poi-son A materials excluded (49 CFR 173.381).

Extremely dangerous poison gases or liquids belong to this class.Very small amounts of these gases or vapors of these liquids,mixed with air, are dangerous to life (49 CFR 173,326).

Substances, liquids, or solids (including pastes and semi-solids),other than Poison A or irritating materials, that are known to betoxic to humans. In the absence of adequate data on human toxi-city, materials are presumed to be toxic to humans if they are tox-ic to laboratory animals exposed under specified conditions (49CFR 173.343).

A viable micro-organism, or its toxin, which causes or may cause hu-man disease. These materials are limited to agents listed by theDepartment of Health and Human Services (49 CFR 173.386,42 CFR 72.3).

A material that spontaneously emits ionizing radiation having a spe-cific activity greater than 0.002 microcuries per gram (pCi/g). Fur-ther classifications are made within this category according tolevels of radioactivity (49 CFR 173, subpart l).

Any chemical compound, mixture, or device, the primary or commonpurpose of which is to function by explosion, unless such com-

Ethyl alcohol, gasoline,acetone, benzene,dimethyl sulfide.

Ink, methyl amyl ketone,fuel oil

Nitrocellulose (film),phosphorus, charcoal

Potassium bromate, hydro-gen peroxide solution,chromic acid

Urea peroxide, benzoyl per-oxide

Bromine, soda lime, hydro-chloric acid, sodium hy-droxide solution

Butadiene, engine startingfluid, hydrogen, lique-fied petroleum gas

Chlorine, xenon, neon, an-hydrous ammonia

Tear gas, monochloro-acetone

Hydrocyanic acid, bromo-acetone, nitric oxide,phosgene

Phenol, nitroaniline, para-thion, cyanide, mercury-based pesticides, disin-fectants

Vibrio cholerae, clostridiumbotulinum, polio virus,salmonella, all serotypes

Thorium nitrate, uraniumhexafluoride

pound, mixture, or device is otherwise classified (49 CFR 173.50).Explosives are divided into three subclasses:Class A explosives are detonating explosives (49 CFR 173,53); Jet thrust unit, explosive

boosterClass B explosives generally function by rapid combustion rather than Torpedo, propellant ex-

detonation (49 CFR 173.88); and plosive

Class C explosives are manufactured articles, such as small arms Toy caps, trick matches,ammunition, that contain restricted quantities of Class A and/or signal flare, fireworksClass B explosives, and certain types of fireworks (49 CFR173.100).

A material designed for blasting, but so insensitive that there is very Blasting caplittle probability of ignition during transport (49 CFR 173.1 14(a)).

Ch. 4—Hazardous Materials Transportation Regulations ● 155

Table 4-4.—Department of Transportation Hazard Classes—Continued

Hazard class Definition Examples

ORM (Other Regulated Any material that does not meet the definition of the other hazardMaterials) classes, ORMs are divided into five substances:

ORM-A is a material which has an anesthetic, irritating, noxious, toxic, Trichloroethylene, carbonor other similar property and can cause extreme annoyance or dis- tetrachloride, ethylenecomfort to passengers and crew in the event of leakage during dibromide, chloroformtransportation (49 CFR 173.500(a)(l)).

ORM-B is a material capable of causing significant damage to a trans- Calcium oxide, ferric chlo-port vehicle or vessel if leaked. This class includes materials that ride, potassium fluoridemay be corrosive to aluminum (49 CFR 173.500(a)(2)).

ORM-C is a material which has other inherent characteristics not Castor beans, cotton, inflat-described as an ORM-A or ORM-B, but which make it unsuitable able life raftsfor shipment unless properly identified and prepared for trans-portation. Each ORM-C material is specifically named in the Haz-ardous Materials Table in 49 CFR 172.101 (49 CFR 173.500(a)(3)).

ORM-D is a material such as a consumer commodity which, although Consumer commodity nototherwise subject to regulation, presents a limited hazard during otherwise specified,transportation due to its form, quantity, and packaging (49 CFR such as nail polish;173.500(a)(4)). small arms ammunition

ORM-E is a material that is not included in any other hazard class, Kepone, lead iodide, hepta-but is subject to the requirements of this subchapter. Materials chlor, polychlorinated bi-in this class include hazardous wastes and hazardous substances phenyls(49 CFR 173.500(a)(5)).

SOURCE: 49 CFR 172,101 and 173.

guidance for shippers on how to classify a hazard-ous material. The criteria set by DOT for these haz-ard classes vary; some are based entirely on a quan-tifiable test, such as flash point determinations forflammable liquids, while others require shippers toexercise their judgment, as for the flammable soliddefinition. If a material falls into more than one haz-ard class, a shipper must follow a specified hierar-chy of hazards based on the quality of packagingassociated with each hazard class.28

Many of the hazard classes currently in use wereinitially established by ICC decades before theHMTA was passed. These early regulations focusedon materials likely to cause immediate injury to car-rier personnel and the public if they were unexpect-edly released during transport.29 DOT did notexpand the list of hazard classes covered by the reg-ulations until the early 1970s.

Corrosive solids were added toclasses in 1974, and when DOT

the list of hazardconsolidated the

2649 CFR 173.2.~~he Explosive and Other Dangerous Articles Act made explicit

reference to explosives and other dangerous articles such as radioactivematerials, etiologic agents, flammable liquids and solids, oxidizing ma-terials, corrosive liqulds, compressed gases, and poisonous substances.See 18 U.S.C. 834(e).

hazardous materials regulations in 1976, a new clas-sification, “Other Regulated Materials” (ORM), wascreated. The ORM hazard class consisted of foursubclasses, ORM-A, B, C, and D, and was intro-duced by DOT to include materials that were en-compassed by the hazard classifications used byFAA and the Coast Guard prior to consolidationof the regulations.30

In 1980, DOT added a fifth ORM class, ORM-E,to include hazardous substances and wastes regu-lated by EPA that did not fit into one of the exist-ing DOT hazard classes. The Comprehensive Envi-ronmental Response, Compensation, and LiabilityAct (CERCLA), a statute primarily concerned withresponses to releases of hazardous substances intothe environment, required DOT to expand its listof hazardous materials to include hazardous sub-stances and wastes designated under other environ-

~OORM-A materia]s are those with the potential to impair the res-piratory and visual functions of aircraft crew members in the eventof a spill. ORM-B materials are those corrosive to aluminum, anotherconcern in air transport, ORM-C consists of materiaIs that were regu-lated by the U.S. Coast Guard as “Hazardous Articles” including thosewith the potential to heat spontaneously if kept in a closed, damp envi-ronment for an extended period of time. Finally, ORM-D materialsare consumer commodities, such as charcoal or nail polish, whichpresent limited hazards during transport because of their form, quan-tity, or packaging. See 41 F.R. 15972, Apr. 15, 1976.


mental laws.31 While DOT has listed these sub-stances in the CFR, transportation regulations forshippers and carriers are presently applicable only

to hazardous wastes under the Resource Conserva-tion and Recovery Act and hazardous substances un-der the Federal Water Pollution Control Act, not theentire list of substances defined under CERCLA.32

Underlying DOT’s current classification systemare several assumptions—that most accidents involvefire, that only acute health effects need to be con-sidered, and that only people close to the scene ofan accident will be affected. The National Trans-portation Safety Board and others have asserted thatthese considerations are insufficient and that DOT’sclassification system does not adequately indicatedegrees of hazard and does not take into accountall of the potential dangers posed by a hazardousmaterials accident.33 For example, releases that donot involve fires may be just as dangerous as thosethat do and can affect people miles from the scene.

JIThese statutes include the Federal Water pollution Control Act,the Resource Conservation and Recovery Act, the Clean Air Act, andthe Toxic Substances Control Act. See Section 306 (b) of the Compre-hensive Environmental Response, Compensation, and Liability Actof 1980 (42 U.S.C. 9601).

32The Comprehensive Environmental Response, Compensation,and Liability Act (CERCLA) requires that releases of designated haz-ardous substances in quantities equal to or exceeding certain amounts,called Reportable Quantities (RQs), be reported to the National Re-sponse Center (See 49 U.S.C. 9656(a)). Prior to the passage of CERCLA,the U.S. Environmental Protection Agency (EPA) established RQs fordesignated hazardous substances under the Federal Water PollutionControl Act (FWPCA); RQs were set at 1, 10, 100, 1,000, and 5,000pounds. CERCLA, enacted in 1980, assigned a statutory RQ of 1 poundto all designated hazardous substances (except those set under theFWPCA) but authorized EPA to adjust the RQs as appropriate. In April1985, EPA promulgated RQs for 340 substances and proposed adjust-ments for 105 of the remaining 358 CERCLA designated substances.DOT decided not to regulate CERCLA substances (except RCRA haz-ardous wastes and FWPCA substances) until EPA adjusts the RQs.See Advance Notice of Proposed Rulemaking, Docket HM-145E, 48F.R. 3596, Aug. 8, 1983. Several industry organizations petitioned theU.S. Department of Transportation (DOT) in 1981 to require all ship-pers of CERCLA designated substances in excess of 1 pound to pre-pare shipping papers. The petitioners believed that carriers needed tobe notified that they were transporting hazardous substances as theywere subject to liability requirements under CERCLA, The petitionwas denied by DOT. See 46 F.R. 58086, Nov. 30, 1981.

33U.S. Congress, Office of Technology Assessment, “Transcript ofProceedings-OTA Workshop on State and Local Activities,” unpub-lished typescript, May 30, 1985; Charles Batten, National Transpor-tation Safety Board, personal communication, April 1986; and Trans-portation Research Board, National Academy of Sciences,Transportation of Hazardous Materials: Toward a National Strategy:Special Report Z97(Washingon DC: National Academy Press, 1983).

Furthermore, long-term health effects and the po-tential for environmental damage, such as ground-water contamination, as well as the difficulty incleaning up released materials, should also be con-sidered in the identification and classification of haz-ardous materials. Chapter 3 discusses the classifi-cation issue in the context of packaging requirementsfor hazardous materials.

Hazard Communication.—The regulations re-quire shippers and carriers to communicate the haz-ards of their cargo by providing shipping papers,markings, labels, and placards. These requirementsare important because they are intended to furnishessential information about the cargo to emergencyresponse personnel if accidents occur.

Shipping Papers.–Most shipments of hazardousmaterials must be accompanied by shipping papersthat describe the hazardous material and containa certification by the shipper that the material isoffered for transport in accordance with applicableDOT regulations.34 For most shipments, DOTdoes not specify the use of a particular documentand the information can be provided on a bill oflading, waybill, or similar document. Figure 4-2 isa sample shipping document. The exceptions arehazardous waste shipments, which must be accom-panied by a specific document called the Hazard-ous Waste Manifest. A manifest lists EPA identifi-cation numbers of the shipper, carrier, and thedesignated treatment, storage, or disposal facility,in addition to the standard information requiredby DOT.35

Instructions for describing hazardous materials areprovided in the regulations. These descriptions in-clude the quantity of the material, its shipping name(taken from the Hazardous Materials Table in 49CFR 172) and hazard class, and the United Na-tions/North America (UN/NA) hazard identifi-

~4Certain shipments of ORM-A, B, C, and D materials do not haveto be accompanied by shipping papers. See 49 CFR 172.200. Theseexceptions do not apply if the material is a hazardous substance ora hazardous waste.

35The U.S. Department of Transportation regulations specifi thata U.S. Environmental Protection Agency manifest may be used in placeof a shipping paper. See 49 CFR 172.205. For additional informationon hazardous waste requirements, see app. A.


H

Figure 4-2.—Sample Shipping Document

Straight Biii of Ledit?g – ShortForm–Originai– Not Negotiable

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Cusr CUST / ADOR CODfPo NO

u ,10ON

R JTE:

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A

FOR PREPAID $HIPNEN1$ 1(SHOW DOCUMENT NO ON FREIGHT S111

MOII Prepo!d Fre~ght BIIIs W,th o C o p y o f he Bi l l of lodmg T o

~— I DATE PRINTEDCARRIERNo

t DESCRIPTION (00 NOT AS3REVIATE)

I● WNT[sUs. To cow

I%%

2 OENERSC/lECWKAL NAME3. OoT HAZAUD C1AS3 (sIQ* d c - )

● UN/P4A NUMBERIf Chagm a“ !0 b pmpabd, * 01 donlp

h.” 7. b. bu”4 . OoT HAZARD lAM13

s. OOT MAZARD PIACARO

6. FRffOHT ClAS3fflCAl10N COOS7. PREfOfW CIASSfPfCAIWN OE3CRWTION

I 0. RELEASE VALLE9. OOT SXEMPTtON NO,

L 1SCWWJNISI ANO!KIGHT S) INLACAIEDCN THIS ML IX LADING WCCWIEH SUSJECT TO W.RIFWATN3N BY THE wfIGHK@ MD IMWECTKM BUR

‘ ~!fwsh+pnwntmc.v.a ~ti-nWopm&.cwrwbywtw,k &rq.,rmtkttiMll& H,~skllsbt.w tfw,t,s cwr,wsmshtpswe,ghtNO~– wI! ● tho mw M d pamknt on .olua, skTfw .+”. d=cl.d VJuO 0s * pmporty h

?

MHAV1’’GJ!?’W”N ~~MMGTO@EE”w~wc r.quir,d to SIOIO spoaf,colly ,n wr(tmg the ogroed or doclor.d volue of !he proporIv

spocff cdy ctatod by Mu dtfPPM fa b. not ● xcoo41nE SSS A@VS IN DESCRWTION) F=

?THIS IS TO CERTIW TNA1 W! ASOVE NAMED MATERIALS AR.! ~OPERIV CLASSIFIED, mu !$b.v bow bmrdl dfvm.co+w. -mOESCRfSEO, PACKAGEO, MARKED ANO IASEIEO, AND ARS IN PROPER CONDITION FOR ~ c o l o r . m Ilu lpulkmbru w blrrb$2r$xfx%ll!$7RANSPEX7AWjP.J ACCORDING 70 TNE APPLtCASIE REGULATfOUS Of THE DEPARTMENT Awmn, and d OUWI rqwwnmm .af h h . - . *AIF + -.. 11.o

OF TRANSPORTATKWJ ,mn~ d !lu, dllvlmdDRIVER’S SIGNAIURE HEREON INDICATES RECEIPT OF KEWIKSO PIACAROS

P,wl-v d-ad”hw-l

Pmm d9n01nm km Ocku.kAQ99 WAF hOWOunl pmpdd)

chae91 Adward

1SHIPPER, PER:

CARRIER sAGENT, PER

PERMANENT SHIPPER ADDRESS \“~w’, Ilvm+ in k d w, r,sl * * etMl d IOdhl@ ~b~~.fr..~

DATE:PERMANENT POST OFFICE ADORESS OF SHIPPER:

CUSTOMER 1. — — — —— — — — — —.— — — — — — — — .———


cation number assigned to it.36 UN/NA identi-fication numbers, which also must be marked onpackages and bulk containers, correspond to emer-gency response information provided in a guidebookthat is published and distributed nationally byDOT.37 The DOT Guidebook contains informa-tion on potential health, fire, or explosion hazardsand basic emergency action instructions. Isolationand evacuation information is also provided for alimited number of highly hazardous substances.DOT has requested $544,000 for fiscal year 1987 torevise the Guidebook and print 750,000 copies.38

In those instances where a specific technical nameof a hazardous material is not listed in the Hazard-ous Materials Table, a proper shipping name mustbe selected from general description and n.o.s. (nototherwise specified) entries corresponding to thehazard class of the material.39 In addition, specialdescription requirements apply to certain types ofmaterials, such as toxic inhalants, radioactive ma-terials, hazardous substances, empty packaging, andeach mode of transport.40

Markings.-DOT has established marking re-quirements for packages, freight containers, andtransport vehicles. Shippers are required to markall packages with a capacity of 110 gallons or less

~United Nation~/Nofih America (UN/NA) numbers consist of theprefix “UN” or “NA” followed by a four digit number. UN/NA num-bers were adopted by the U.S. Department of Transportation in 1980to facilitate international transportation of hazardous materials. TheUN numbers are based on an international system developed by theUnited Nations Committee of Experts on the Transport of Danger-ous Goods. The NA numbers identify materials not recognized for in-ternational shipment by the U.N. Committee except for transport be-tween the United States and Canada. The change was intended tominimize the burden on shippers, avoid differing shipping paper descrip-tions and package markings for domestic and international shipments,and improve the capability of emergency response personnel to quicklyidentifj hazardous materials. See 45 F.R. 34571, May 22, 1980.

3TU s Department of Transportation, 1984 Emergency ReSPOnSe. .Guidebook, P 5800.3 (Washington, DC: 1984). Additional informa-tion on emergency response training is provided in ch. 5.

‘Paul Rothberg, Hazardous Materials Transpxtation: Laws, Reg-ulations, and Policy, Issue Brief IB76026 (Washington, DC: Congres-sional Research Service, Science Policy Research Division, Mar. 11,1985), p. 5.

3949 cFR 172.101 (c)(I3).@49 CFR 172.203. The U.S. Department of Transportation rmentlY

amended the regulations for describing a packaging that contains theresidue of a hazardous material. Placarding requirements for rail tankcars were also changed from “Empty” to “Residue.” See 50 F.R. 39005,Sept. 26, 1985. Regulations for shipping descriptions, marking, label-ing, placarding, and packaging of toxic inhalants, such as methyl iso-cyanate, were issued on Oct. 8, 1985. See 50 F.R. 41092.

with the proper shipping name of the hazardous ma-terial, including its UN/NA identification num-ber.41 This is done so that the contents of a pack-age can be identified if it is separated from itsshipping papers. Requirements for intermodal port-able tanks, highway cargo tanks, and rail tank carsspecify that the UN/NA identification number bedisplayed on a placard or an orange rectangularpanel. 42 Additional requirements are specified forliquids, packages containing ORM materials, andhazardous substances. For example, packages con-taining liquid hazardous materials must be marked“THIS SIDE UP” or “THIS END UP.”43 EPA alsorequires special markings for packages of hazardouswastes identifying the shipper and indicating thatFederal law prohibits improper disposal of wastes.44

Another type of marking requirement applies tocontainer manufacturers and other persons who test,repair, or recondition containers; DOT specificationnumbers, serial numbers, and test inspection datesmust be marked on containers as certification thatspecification requirements have been met.45

Labels.–Labels are symbolic representations ofthe hazards associated with a particular material.Figure 4-3 contains some examples of DOT labels.They are required on most packages and must beprinted on or affixed near the marked shippingname.46 The Hazardous Materials Table indicateswhich materials require labels. Shipments of limitedquantities of certain hazardous materials may notrequire labeling; these exceptions are referenced inthe Hazardous Materials Table (in column 5(a) un-der packaging exceptions). Additionally, some haz-ardous materials are exempt from labeling require-ments. Exemptions are listed in 49 CFR 172.400 andinclude materials classed as ORM-A, B, C, D, orE (if other hazardous materials that must be labeledare not contained in the same package).

4149 CFR 172.301.qz49 cm 172.326, .328, and .330. Specific instructions regarding the

display of identification number markings are provided in the regula-tions. It should be noted that identification numbers may not by dis-played on a poison gas, radioactive, or explosives placard. See 49 CFR172.332-.338.

4349 CFR 172.312, .316, and “324”4440 CFR 262.32. The U.S. Environmenta] protection Agency’s re-

quirements for hazardous waste shipments are described in app. A.4549 CFR 173, 178, and 179’%Requlrements for the placement of labels can be found in 49 CFR

172.406. Label designs by hazard class are also specified in the regula-tions. See 49 CFR 407-450.


Figure 4-3.— Examples of Labels for Hazardous Materials Packages

SOURCE: 49 CFR 172, Subpart E

160 ● Transportation of Hazardous Materials

mPhoto credit: Office of Technology Assessment based on 49 CFR 172.332

1203 is the UN/NA identification number for gasoline.

Special labels, such as “MAGNETIZED MATE-RIALS” or “CARGO AIRCRAFT ONLY,” are re-quired under appropriate circumstances. In addition,packages containing materials that meet more thanone hazard class definition may require multiplelabels. For example, a material classed as a PoisonB Liquid that also meets the definition of a Flam-mable Liquid must be labeled “POISON” and“FLAMMABLE LIQUID.”47

Placards.–Placards are symbols that are placedon the ends and sides of motor vehicles, railcars,and freight containers indicating the hazards of thecargo. UN/NA identification numbers may be dis-played on some placards, as noted above in the dis-cussion of marking requirements. Placards are ex-tremely important to emergency response personnel

4 7 4 9 CFIl 1T2.z+02, .403, .404, and .405.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

i I MATERIAL. - .- -

I.::.

a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..............:

in the event of an accident because they are highlyvisible. Sample placards are shown in figure 4-4.

DOT has developed tables, presented in tables4-5 and 4-6, that indicate the placards required foreach hazard class. For mixed loads of some hazard-ous materials (those listed in table 4-6) shipped infreight containers, motor vehicles, or railcars, a“DANGEROUS” placard may be substituted for theplacards required for each hazard class; however,if the weight of one material in a mixed load ex-ceeds 5,000 pounds, a separate placard for it mustalso be affixed.48 Placarding is the joint responsibil-ity of shippers and carriers. Placard designs and rulesfor providing and affixing placards are specified byDOT.49

Placards are not required for all shipments of haz-ardous materials, such as etiologic agents; materi-als classed as ORM-A, B, C, D, or E; or limitedquantities of hazardous materials.so Moreover, mo-tor vehicles or freight containers transported byhighway containing less than 1,000 pounds of cer-tain types of hazardous materials (those listed intable 4-6) do not have to be placarded. This exclu-sion also applies to motor vehicles or freight con-tainers carried by railcar (e.g., piggyback service).51

+849 CFR ]72. m4(t)).WRule~ for providing and affixing placards are contained in 49 cm

172.506, .507, .508, .512, and .514. Special placarding provisions forrailcars are listed in 49 CFR 172.510. Display and design specificationsare specified in 49 CFR 172.516-.558.

5049 CFR 172.500.5149 cFR 172.504(c).

L... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Photo credit: 49 CFR 172.446 and 172.446

Two examples of special labels required by the Department of Transportation.


Figure 4-4.—Examples of Hazardous Materials Placards

A v A v

SOURCE: 49 172, F.

Packaging Requirements.–The historical sum- ages authorized for each hazard class as well as reg-mary at the beginning of this chapter underscoresulations governing the reuse and reconditioning ofthe fact that current packaging regulations, pub- packagings and qualification, maintenance, and uselished in 49 CFR 173, 178, and 179, are a compila-requirements for rail tank cars, highway cargo tanks,tion of detailed specifications developed over a 70- intermodal portable tanks, and cylinders. Smallyear period. Part 173 indicates the types of pack-quantities of some hazardous materials maybe trans-


Table 4-5.—Department of Transportation Placarding Table 1

It the moto( Vehicfe, MM car, y=uMaJmf contains a mateiis! ctsaaad The motor Vahicle, rail car, or freightcontainer Mtib&ti_arI each aide

Uase A ~.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . EXPLOSIVES A. ‘aaaa 0 ~.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . EXPLOSIVES 8.’Poison A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. POISON GAS. ‘Rammabb did (DANGEROUS WHEN ~ labeI only) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FLAMMABLE SOLID W.’n~ maw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RADOACTIVE.’. 8RadomXhm mstAak

uranium hoxafkmride fissile (containing more than 1.0 pet u =9... . . . . . . . . . . . . . . . . . RADIOACTIVE ‘ ANO COFtROSIVE.’Warlium Mxd@ide: low epacmc Sclhiity (Cs’ntakllng 1.0 pet of m u 9.. RADOACTIVE ‘, S AND CORROSIVE.’

‘Sac # 172510(4.%XPLOSJVES B @scard twt raqukad if the fraight contahw,

@ac@ed EXPLOSIVES A se required.MOtOf ~, of rail car @ntaina dass A aS#@VOS ~ b

~~ma=~b’-”y-m ~ER~S~ENmHbaFfAMMASLE SOLID ‘W’ apocMed in # 172.101 for ●

‘-* tom q~m of paciqes bearing the RADl&A~8E YELLWNl#abel. (See ~ 172.402.)Woe f 173.403, for fuWoad shipnwnts of mdioadve defidon of bwspec+fk adivitywherr

t to ~ 173.425(b).%ORR=_ not requirad for ahipments of less than 1000 pounds woes weight

SOURCE: 49 CFR 172.504.

Table 4=6.-Department of Transportation Placarding Table 2

If the mokir vehicte, d car or freight corrtdner containe a material classed The motor Vehicle, M4 car, or freight(-w-d) - container nmJst be ptacardad oneactl aide

Andoscherld-

C&ae c ~.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DANGEROUS.’* ‘Blasting aim............ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . OLASTING AGENTS,*. ‘“NonflammaMe gas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . NONFUMMASLE GAS. ’NonffemmaM gas (titi)......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CHLORINE.’Nonflammable gae (fluuine) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . POISON.Nd@nma& gas (oxygen, f.xyoganic Lou@........... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . OXYGEN.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FIAMMABLE GAS. C

=Y+d........... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . COMBUSTIBLE.”. 4

I%mmaMa lw............. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FIAMMABLE.FkmmaMa w.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . FIAMMABLE SOUD.S~.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. OXIOtZER.S. ‘“w ~.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ORGANIC PEROXIDE.PobQn B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... PotsON.Grroeiw mttil.......... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CORROSIVE.’Irritating matuial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DANGEROUS.

!$i%%Yto a claaa C exp&ive required to b9 labeled with an EXPLOSIVE C label.

‘COMBUSTIBLE placard required onty when a material classed ss a combustible Iiiid is tmapmed in a paeksging havinga rated capacty of more than 110 gellona, a cargo tank, or a tank car.

‘A FIAMMABLE ptacard may be used on a cargo tank or portable tank during tmnaprla tiUWW~y, rail or water, aruton a ~mentad tank car contsinirq materrals classed as Flammable liquid andplacard may be displayed on an “empty’ Combustible liquid tank car.

Combue . . Howevar, n o E M P T Y

%xcapt wtten offered for transportation by water, a FIAMMABLE placard may bew’- ‘n Pm ‘f a ‘ u M M A B L ESOLIO placard except when a DANGEROUS WHEN WET label is epeafd for the maten m sec. 1 2.101. (see table 1. this

~.)%ee Q 173.245(b) of this subchapter for authorized exceptions.

SOURCE: 49 CFR 172.504.

ported in nonspecification packaging if specified per-. .formance tests and other requirements are met.52

The Hazardous Materials Table references the ap-propriate section of Part 173 for each hazardous ma-. -terial and packaging exceptions for limited quanti-ties of certain hazardous materials.

52The~e exception5 apply to small quantities of flammable liquids,flammable solids, oxidizers, organic peroxides, corrosive materials, Poi-son B, and ORM-A, B, C, and radioactive materials that also meetthe definition of one or more of these hazard classes. See 49 CFR 173.4.

Parts 178 and 179 contain the specifications foreach package type including test standards that mustbe followed by container manufacturers. Hundredsof packaging exemptions are still issued by RSPAstaff each year, authorizing the use of packagingthat differ from approved DOT specifications. Fora more detailed discussion of packaging regulations,see chapter 3.

International Regulations.-Two major interna-tional standard-setting bodies publish recommended


requirements for intermodal shipments of hazardousmaterials: the United Nations (U. N.) and the In-ternational Atomic Energy Agency (IAEA). RSPArepresentatives participate in the development ofthese international codes and others that deal solelywith air and water transportation (see discussion be-low). Comments are solicited from industry and thepublic on proposed international regulatory activi-ties, even though a formal public participation mech-anism, comparable to the Administrative ProceduresAct for domestic regulations, does not exist.53 Reg-ulations for the transportation of hazardous mate-rials adopted by these international agencies areapplicable to U.S. shippers and carriers that tradeabroad.

The main body of the United Nations dealingwith hazardous materials transportation policy is theEconomic and Social Council (ECOSOC), whichreports to the U.N. General Assembly in New York.ECOSOC works through specialized commissionsand committees. The primary groups concernedwith hazardous materials are the Economic Com--mission for Europe and the Committee of Expertson the Transport of Dangerous Goods. The Com-mittee of Experts is comprised of 10 members in-cluding the United States, Canada, several Euro-pean Nations, and the U. S.S.R.54

The Committee of Experts has published a set ofrecommendations regarding classification and iden-tification numbering systems for hazardous materi-als, labeling, and placarding requirements, and theuse of objective performance standards for nonbulkpackaging. 55 DOT has adopted some of the U.N.recommendations, such as the identification num-bering systems for hazardous materials. Other rec-ommendations, such as performance standards,

have not yet been adopted by DOT, although anadvance notice proposing their adoption has beenpublished in the Federal Register.56 Additional in-formation on the U.N. performance standards is pre-sented in chapter 3.

The Canadian Government has recently adoptednew rules, the Transportation of Dangerous Goods(TDG) Regulations, based on the U.N. system.57

Transport Canada, a multimodal national agencyresponsible for these requirements, issued rules inJuly 1985 covering classification, placarding, mark-ing, labeling, and shipping papers. In October 1985,DOT issued a rule permitting shipments betweenCanada and the United States in conformance withCanada’s TDG Regulations and certain additionalDOT requirements. Packaging standards, except forspecific types of hazardous materials (limited quan-tities and consumer commodities), have not yet beenpublished by Transport Canada.58

The International Atomic Energy Agency firstbecame involved with the transportation of radio-active materials in the late 1950s. The first set ofrecommendations—Regulations for the Safe Trans-port of Radioactive Materials, Safety Series No. 6–was published in 1961. The recommendations havebeen revised and updated over the years and serveas the basis for regulatory programs established byIAEA member nations. DOT has incorporatedSafety Series No. 6 into its regulations by referencewith certain modifications for application to radio-active materials being imported to or exported fromthe United States.59 Other international organiza-tions such as the International Maritime Organiza-

t~The Admlnlstratlve procedures Act (APA) prescribes rules for theadoption of regulations by Federal agencies. Agencies are required topublish proposed and final rulemakings in the Federal Register andprovide an opportumty for public comment. Any international require-ments proposed for incorporation into the U.S. Department of Trans-portation’s hazardous materials regulations are subject to APA proce-dures. See 5 U. SC. 553.

WA ~orklng group under the Committee of Experts, the Group ‘f

Rapporteurs on the Transport of Dangerous Goods, is responsible fordeveloping detailed positions on various issues for formal considera-tion by the full committee. Another subgroup is the Group of Expertson Explosives.

5jUnited Nations, Transporc of Dan~erous Goods—Recommen-dations of the Committee of Experts on the Transport of DangerousGoods, third revised edition (New York: 1984).

“47 FR 16268, Apr. 15, 1982.5pUntil the early 1970s, the U.S. Department of Transportation’s

hazardous materials regulations were adopted by the Canadian Trans-port Commission (CTC) and applied to rail transport in Canada (49CFR 173.8 stated that hazardous materials shipped in accordance withCTC regulations were acceptable for transport in the United States).CTC did not establish national regulations for the highway mode. Thus,shippers and carriers involved with transborder shipments of hazard-ous materials were not concerned with conflicting regulatory require-ments. As new regulations were adopted by the United States in thelate 1970s, CTC did not amend its code accordingly.

j~50 FR 41516, Oct. 11, 1985.49 CFR 173.8 was replaced by a newsection, 49 CFR 171. 12a, describing requirements for U.S.-Canadianshipments.

’949 CFR 171.12(e), 173.416, and 173.417. Radioactive materialspassing through the United States in the course of being shipped be-tween places outside the United States are included.

——


tion and the International Civil Aviation Organi-zation (discussed below) have incorporated IAEArequirements into their codes. IAEA recommen-dations include package design, testing, and inspec-tion procedures; requirements for limiting humanexposure to radiation; and controls for transport andstorage while in transit.

Highway

RSPA regulations for the highway mode apply tocommon, contract, and private carriers. Part 177of 49 CFR specifies regulations for accepting freight,loading and unloading, stowage, routing, and han-dling. A special chart, shown in figure 4-5, is pro-vided in the regulations indicating materials thatmust not be loaded or stored together (similar chartsare provided for other transport modes). A general

requirement applicable to all highway shipments isthat they be transported without unnecessary de-lay, from loading to arrival at their destinations.60

Recognizing the safety concerns associated withtunnels, the regulations allow State and municipalrequirements restricting hazardous materials ship-ments (except radioactive materials) through vehic-ular tunnels used for mass transport.61 Other in-transit regulations cover the actions that must betaken by carriers and shippers in the event of an

———. .q9 CFR 177.853(a),6149 CFR 177.~10, When the U.S. Department of Transportation

issued HM-164, this section was amended to exclude shipments of radio.active materials so that States would be able to: “evaluate the site-spxificrisks involved over various routes without being hampered by locallyimposed constraints which may be counterproductive. ” See 46 F.R.5308, Jan. 19, 1981.

Figure 4=5.–Department of Transportation Segregation and Separation Chart for the Highway Mode

IIx ‘x

x

/ , 1 r r 1 , , ,

g lutes 7 II I x I Im me homers. ZA I I I w

sOURCE: 49 CFR 177.S48.


accident. 62 In addition, carriers of flammable cryo-genic liquids in portable tanks or cargo tanks arerequired to register with RSPA and undergo train-ing.63

While routing regulations are generally consideredto be an appropriate local-level responsibility, RSPAhas established a national highway routing rule forradioactive materials. 64 This rule, commonly re-ferred to as DOT Docket HM-164, was promulgatedbecause a large number of States and localities hadproposed or enacted legislation banning or restrict-ing the transport of radioactive materials throughtheir jurisdictions. Following an extensive publiccomment period, DOT concluded that, “the pub-lic risks in transporting these materials by highwayare too low to justify the unilateral imposition bylocal governments of bans and other severe restric-tions. ”65 However, DOT found that certain actionscould further minimize the risks associated with suchshipments. Thus, HM-164 requires carriers of allplacarded shipments of radioactive materials, includ-ing radiopharmaceuticals and low-level wastes, tooperate on routes that minimize radiological risk.66

Carriers of high-level radioactive materials mustoperate over a “preferred” route that is selected toreduce transit time. Such a route consists of eitheran Interstate highway system (including the use ofan Interstate bypass around a city when available)or an alternative State-designated route selected bya State routing agency in accordance with DOTguidelines.67 Drivers of vehicles that transporthigh-level radioactive materials are also required toreceive written training, and carriers must preparea written route plan.

An appendix to HM-164 provides policy guidancefor State and local authorities for establishing re-quirements that are consistent with Federal law andregulations. The implementation of HM-164 byRSPA, Federal routing guidelines, and existing State

b]49 CFR 177, Subpart D.’349 CFR 177.816 and 177.826.’49 CFR 177.825. The routing rule, Docket HM-164, was published

on Jan. 19, 1981, 46 F.R. 5316.“46 F.R. 5299, Jan. 19, 1981. See also 43 F.R. 36492, Aug. 17, 1978,

and 45 F.R. 7140, Jan. 31, 1980.fi49 CFR 177.825 (a).‘;49 CFR 17?.825(b). This provision applies to highway route con-

trolled quantities of radioactive materials as defined in 49 CFR173.403(1).

and local routing restrictions are discussed later inthis chapter.

The Bureau of Motor Carrier Safety (BMCS)within the Federal Highway Administration is re-sponsible for developing some hazardous materialsregulations and enforcing RSPA regulations for thehighway mode, including requirements for tanktruck manufacture and maintenance. BMCS, un-der its general authority to set motor carrier safetystandards, also regulates motor carrier operations,drivers, and vehicles used for transporting hazard-ous materials.

Motor carrier safety regulations, incorporated by

reference into RSPA’s hazardous materials regula-tions in 1978, are located in Parts 301 to 399 of 49CFR. However, the driver qualification regulationsare limited; for example, while drivers must take awritten test, it is an open book exam and a passinggrade is not required.68 In addition, the motor car-rier regulations do not provide for driver disqualifi-cation based on a driver’s cumulative record of con-victions, and the disqualifying driver offenses apply

only when a driver operates a commercial vehicleand is on duty at the time of an offense.69 Further-more, Federal regulations cover mainly Interstatedrivers, and State driver requirements vary consider-ably.* Improvements in driver qualification andtraining requirements have been proposed; thesesuggestions and State requirements are describedlater in this chapter.

Special regulations for the transportation of haz-ardous materials, contained in Part 397, prescriberequirements for compliance with Federal, State,and local laws; parking; attendance and surveillanceof vehicles; and operating (e.g., requirements for fuel-ing and examining tires). A general routing require-ment instructs carriers to avoid routes that gothrough or near heavily populated areas, placeswhere crowds are assembled, tunnels, narrow streets,or alleys, unless a practicable alternative route doesnot exist.70 BMCS also requires written route plans

’49 CFR 391.35.%ee 49 CFR 391.15 and National Transportation Safety Board,

Safety Effectiveness Evaluation of Detection and Control of UnsafeInterstate Commercial Drivers (Washington, DC: Feb. 15, 1980), pp.15-18.

*Federa] motor carrier regulations do apply to intrastate carriers ofhazardous wastes, hazardous substances, and flammable cryogenics.

7049 CFR 397.9(a). This requirement does not apply to radioactivematerials covered by HM-164, 49 CFR 177.825.

166* ● Transportation of Hazardous Materials

for shipments of Class A or Class B explosives bymotor vehicle that comply with the general rout-ing rule.71 However, when the motor carrier safetyregulations were incorporated into the hazardousmaterials regulations, these routing rules were notincorporated. Another provision in the motor car-rier regulations, requiring compliance with State andlocal regulations unless they are at variance withmore stringent Federal regulations, was not incor-porated.

In addition, BMCS has established minimum fi-nancial responsibility requirements for private andfor-hire carriers of hazardous materials as requiredby the Motor Carrier Act of 1980. Minimum levelsof coverage have been set at $1 million and $5 mil-lion, depending on the nature of the cargo. How-ever, exemptions from these requirements have beenestablished for intrastate nonbulk carriers of haz-ardous materials except high-level radioactive ma-terials and motor vehicles with gross vehicle weightratings of less than 10,000 pounds except for vehi-cles used to transport Class A or B explosives, poi-son gases, or high-level radioactive materials.72

Another BMCS activity is the administration of theMotor Carrier Safety Assistance Program (MCSAP),which provides assistance to States for enforcementof motor carrier regulations, including some of thosegoverning hazardous materials transportation onpublic roads.73 MCSAP is discussed later in thischapter.

In addition to the DOT regulations, the NationalMotor Freight Traffic Association, a division of theAmerican Trucking Association, publishes the Na-tional Motor Freight Classification (NMFC) whichprescribes packaging to be used to ship all goods byhighway, including hazardous materials. Except inone instance, the NMFC rules are not referencedin the Federal regulations, but they do provide guid-ance for shippers handling materials that do nothave to be transported in DOT specification con-tainers. In addition, noncompliance with the NMFCrequirements may limit the ability of a shipper to

collect from a motor carrier in the event of damagesarising during transport.

Rail

Hazardous materials regulations for rail transportappear in 49 CFR 174. The regulations contain gen-eral operating, handling, and loading and unload-ing requirements, as well as detailed requirementsfor various hazard classes. For example, specific re-quirements for segregating hazardous materials ina car and for the placement of cars containing cer-tain types of material are included.74 Carriers arealso instructed to forward shipments of hazardousmaterials within 48 hours after acceptance at theoriginating point, or receipt at any yard, transferstation, or interchange point.75 Special loading andbracing requirements for container-on-flatcar, trail-er-on-flatcar, and portable tanks are provided, andprocedures for unloading tank cars are alsospecified. 76

The Federal Railroad Administration (FRA) en-forces regulations pertaining to the transportationof hazardous materials by rail, including those gov-erning the manufacture and maintenance of tankcars used to ship hazardous materials. Additionally,FRA has jurisdiction over all areas of rail safety suchas track maintenance, equipment standards, andoperating practices. Rail safety regulations are pub-lished in 49 CFR Parts 209 to 236.

As noted previously, AAR has been involved indeveloping hazardous materials regulations since theearly 1900s. However, the organization currentlyplays a less prominent role in the regulatory proc-ess. Prior to the formation of DOT, counsel for ICCrecommended withdrawal of the broad delegationof authority that had been granted to the Bureauof Explosives, a legal opinion reiterated by DOTwhen it took over ICC’s functions in 1967. In thelate 1970s, DOT assumed responsibility for approv-ing regulatory exemptions, a task performed by theBureau of Explosives for decades.77 In 1985, the

7149 cm 397.9(b), The carrier must furnish a coPY of the Plan ‘0

the driver. Drivers may prepare written plans when trips begin at loca-tions other than the carrier’s terminal.

7249 CFR 387.T~he Motor Carrier Safety Assistance Program was authorized bY

the Surface Transportation Act of 1982, Public Law 97-424.

‘+See 49 CFR 174.81 for cargo segregation requirements; a table,similar to the one for highway shipments (see figure 4-5) is provided.Regulations regarding the placement of cars can be found in 49 CFR174.83-.93.

7’49 CFR 174.14.‘A49 CFR 174.61, 174.63, and 174.67.‘7U.S. Department of Transportation Docket No. HM-163.


Photo credit: Research and Special Programs Administration, DOT

Inadequate blocking and bracing of containers for railtransportation can cause damage and spills.

Bureau of Explosives was renamed Hazardous Ma-terials Systems; it continues to classify and reviewnew explosives and other materials.

Other AAR groups publish equipment standardsand specifications, and engineering offices certifyconstruction and repair shops. The AAR Tank CarCommittee is involved in all aspects of tank car con-struction, maintenance, and repair, including thoseused for hazardous and nonhazardous materials.The committee must approve new tank car de-signs before they are submitted to DOT. The DOThazardous materials regulations specify proce-dures for securing AAR approval of tank cars orchanges to existing specifications, and providingcertificates of construction.78

Another organization involved with rail transportis the Uniform Classification Committee, whichpublishes the Uniform Freight Classification (UFC).The UFC serves a similar function to that of theNMFC for the highway mode.

‘s49 CFR 179.3, .4 and .5.

Air

RSPA regulations for the air mode are specifiedin 49 CFR 175. They cover special requirements forcertain hazard classes as well as general loading, un-loading, and handling requirements. The Hazard-ous Materials Table in 49 CFR 172 indicates thequantities per package of materials that may betransported on passenger and cargo aircraft as wellas those materials, such as Class A explosives, for-bidden from being offered or accepted for trans-port.79 The regulations also require that pilots beinformed of any hazardous materials carried in an

aircraft. 80

Responsibility for the enforcement of hazardousmaterials regulations for the air mode lies with FAA.Inspections of hazardous materials packages on do-mestic and foreign carriers are conducted at U.S.airports and in airport cargo-handling areas. FAAalso issues and enforces general safety rules and reg-ulations, such as manufacture, operation, and main-tenance requirements for aircraft.

The Air Transport Association represents the con-

cerns of domestic airlines. Its Restricted ArticlesBoard was responsible for publishing “CAB Re-stricted Articles Tariff No. 6-D” in 1965. Tariff 6-Doriginally contained a restatement of the DOT haz-ardous materials regulations for air shipments as wellas additional requirements established by air car-riers. In 1977, Tariff 6-D was replaced by Circular6-D in response to a CAB order prohibiting the pub-lication of portions of the CFR in tariffs; Tariff 6-Dwas rewritten to include only more restrictive car-

rier regulations.81 Federal regulations were effec-tively replaced by Circular 6-D, because it was morereadable and useful as a daily tool and could beupdated more easily to accommodate regulatoryamendments.

79Quantity limitations aboard aircrafi are specified in 49 CFR175.75. No person may carry more than 50 pounds net weight of haz-ardous materials (and in addition thereto, 150 pounds net weight ofnonflammable compressed gas) on a passenger-carrying aircraft in anaccessible cargo compartment or freight container, an accessible cargocontainer, or an accessible cargo compartment in a cargo-only aircrafi.Hearings were held by the U.S. Department of Transportation during1985 in response to a petition for rulemaking submitted by Japan Air-lines to remove current weight limitations of 50 pounds allowed onpassenger aircraft. See 50 F.R. 6013, Feb. 13, 1985.

8049 CFR 175.33.Sjcivil Aeronautics Board Order 77-2-59.


The role of the Restricted Articles Board has beendiminished in recent years due to deregulation ofdomestic air carriers and the increasing influenceof international organizations such as the Interna-tional Air Transport Association (IATA). IATApublishes restricted articles regulations for interna-tional use similar to those in Circular 6-D. Increas-ing numbers of domestic carriers are relying exclu-sively on the IATA regulations instead of Circular6-D, as carriers prefer to follow only one set of in-structions, 82 The Restricted Articles Board contin-ues to work with carriers in restricting the types ofhazardous materials accepted for transport beyondthe limitations set by DOT.

In 1982, the International Civil Aviation Orga-nization (ICAO), an affiliate of the United Nations,adopted Technical Instructions (TI) based on theU.N. recommendations for air transportation ofdangerous goods. All air shipments from the UnitedStates and all U.S. flag carriers must adhere to theTI, as the United States is a signatory to the con-vention under which they were adopted. In addi-tion, DOT has authorized the use of the TI fordomestic air transportation and for any highwaytransportation related to the air distribution of amaterial. 83 IATA has revised its regulations so thatthey are based primarily on the ICAO requirements.

Water

RSPA regulations for the water mode apply onlyto nonbulk shipments. 84 Promulgated in 49 CFR176, the regulations address requirements for accept-ing freight, loading and unloading, stowage, andhandling. Carriers or agents are also required to pre-pare a dangerous cargo manifest, which must be keptin a designated holder on or near the vessel’sbridge. 85

The Coast Guard regulates bulk transport bywater. Requirements for the design, construction,equipment, maintenance, and inspection of com-

82 Frank Black, Alr Transprt Association of America, written com-munication, Feb. 12, 1986.

8349 cm 171.11.~ve~~ls Subjwt t. regulation are s~ified in 49 cm 176.5. For ex-

ample, public vessels not engaged in commercial service and vesselsof 500 gross tons or smaller, engaged in fisheries are not covered.

85The manifest includes information about the vessel and the cargoand is prepared based on information from shipping papers. 49 CFR176.30.

Photo credit: Sea/and, provided by Railway Age

Hazardous materials travel by all modes of transportation.

mercial vessels, including those used for bulk haz-ardous material shipments are contained in 46 CFRParts D, I, N, and ‘O. Additional requirements forcertain ships and barges that carry bulk oil ship-ments are prescribed in 33 CFR 157. Coast Guardrequirements for dangerous cargo require vessels to

notify the appropriate captain of the port in advance86of arrivals and departures.

~33 cm 21 I and 213. Dangerous cargo includes Class A explosives,oxidizing materials or blasting agents, large quantity radioactive ma-terials or certain fissile radioactive materials, and bulk shipments ofa specified list of materials (see 33 CFR 160.203 and 46 CFR 153 (table1)). General prenotification requirements have also been establishedfor all vessels on voyages of 24 hours or more destined for the UnitedStates and for vessels bound for ports on the Great Lakes (33 CFR160.207 and 160.209).


Coast Guard inspection and enforcement activi-

ties are carried out in port areas and on domestic

and foreign ships and barges operating in the naviga-

ble waters of the United States. The National CargoBureau , inc . , has been authorized by the CoastGuard to assist with the administration of the haz-ardous materials regulations applicable to the safeloading of vessels. Surveyors employed by the Bu-reau inspect vessels to determine their suitability forloading and stowing hazardous materials, recom-mend stowage requirements, and issue certificatesof loading.’;

The Safety of Life at Sea convention of 1960 out-lined requirements for ship construction and safetythat set the stage for the development of an inter-national maritime code pertaining to the movementof hazardous materials. The International MaritimeOrganization (IMO), formerly called the Intergov-ernmental Maritime Consultative Organization,worked with the U.N. Committee of Experts to es-tablish requirements addressing classification, iden-tification, documentation, labeling, marking, andpackaging.” These requirements, referred to as theInternational Maritime Dangerous Goods (IMDG)Code, may be followed, with certain limitations, byshippers and carriers who import to or export fromthe United States.89 In addition, RSPA has au-thorized the use of IMDG requirements for pack-aging, marking, labeling, classification, description,certification, and placarding for most domestic ship-ments by vessel, as well as for transportation by mo-tor vehicle used in connection with the dischargeor loading of a vessel if the vehicle does not oper-ate on a public street or highway.’’” TO facilitatethe use of the IMDG Code, RSPA has incorporated

——. .—‘-49 CFR 176.18. The National Cargo Bureau IS a nonprofit orga-

n]zatton e>tabl]<hed ~n 1 g52 to perform ~’essel inspm tions. The direc-torship of the hurc>au IS ct)mpt)wxl c~f go~ernmcnt and industry reprc-~entatlkei. SLY L’ , S . (;cncral A~counting Office, .IlanagemencImprotcment C<)uld Enhar](-e Enh>r, cmcnt of Coast Guard h!arlneSah~t\ Programs, J[’AO\RC~ED-85-59 (N’ashlngton, DC: Aug. 15, 1985).

‘“The Inttirgo\ernmental hf~rltime Organization (Ih40) created bva con~wntlon adoptwl b} tht’ United NatIons hlaritirnc Conferencein Gene\’a ]n 1948, M ,i the first rcgulatort hodl. to adopt the U,N.standards. Llore than 1 {!q countrle~ arc membcr~ of Ihf O.

““49 CFR 171.12.“49 CFR 171.12 and 176.11. Internatlc~nal hfaritime Dangerous

Goods (lMDG) regulations ma~’ nc~t he applied to transport of certainexplosi~w, radloacrl~’c mater (al~, or materials that are hazardtlus u n-rider U.S. Department of Transpcxtatlon regulations hut nre nt>t u(j\-cred hv the IMDG C(dc,

an optional Hazardous Materials Table into 49 CFRbased on IMO classifications and requirements.91

Related Federal Agenciesand Programs

While DOT has primary jurisdiction over thetransportation of hazardous materials, three otherFederal agencies have overlapping regulatory respon-sibilities—EPA, NRC, and OSHA. In addition, ICCgrants motor carriers authorization to operate andrequires carriers subject to its jurisdiction to pub-lish rates. DOE and DOD as shippers of hazardousmaterials have also established transportation pro-grams and requirements. Another agency, NTSB,is concerned with investigations of transportationaccidents.

Environmental Protection Agency

EPA manages several programs that affect thetransportation of certain hazardous materials. TheResource Conservation and Recovery Act (RCRA)requires EPA to establish requirements for transportersof hazardous wastes; EPA has adopted DOT’s regu-lations for hazard communication, packaging, andreporting discharges and has enacted additionalnotification, marking, manifest, and cleanup require-ments. However, the characteristics used by EPAto identify a waste are different from DOT’s haz-ard classes. Thus, shippers and carriers of hazard-ous wastes must understand and comply with bothclassification systems. A Memorandum of Under-standing between EPA and DOT refers to inves-tigation, enforcement, and information-sharingresponsibilities under RCRA.92 Appendix A con-tains additional information on EPA and DOT reg-ulations for the transportation of hazardous wastes.

In 1981, a guidance manual for shippers and car-riers of hazardous wastes was prepared by EPA andDOT to explain the interface between the regula-

“]49 CFR 172.102. The U.S. Department of Transportation notedthat this optional table is included in the interest of providing consis-tency \\’ith the Intmnatlonal h4arItime Dangerous Goods Code andalerting persons ahout the international requirements.

’45 F.R. 51645, Aug. 4, 1980.


Photo credit: Waste Age Magazine

Personnel wearing appropriate equipment sample hazardous wastes in drums before transferring the wastes to a tank truck.

tions of the two agencies.93 Since then, amend-ments to RCRA have been passed extending thescope of the law to include more than 100,000 smallgenerators of hazardous wastes. Given the complex-ity of DOT and EPA regulations, the potential forconfusion and inappropriate use of containers fortransport is immense. However, the 1981 guidancedocument has not been updated, and informationdistributed by EPA to small generators in 1985 didnot cover DOT’s transportation regulations.

The Toxic Substances Control Act (TSCA) pro-vides EPA with broad authority to regulate chemi-cal substances and mixtures whose manufacture,processing, distribution in commerce, use, or dis-posal may present an unreasonable risk of injuryto health or the environment.94 One regulatory

option available to EPA is to require that such sub-stances or mixtures be accompanied by clear andadequate warnings and instructions when they aredistributed, used, or disposed.95 However, EPAregulatory action under TSCA has been limited; reg-ulations for polychlorinated biphenyls require spe-cial markings on containers, equipment, articles, andtransport vehicles.%

In addition to the designation of hazardous sub-stances, CERCLA (or Superfund) and the CleanWater Act authorize EPA and the Coast Guard toprovide technical information and advice to emer-gency response personnel and to respond to severetransportation accidents (see chapter 5). Data onaccidents involving hazardous substances and wastesare also collected by EPA (see chapter 2).

Environmental Protection Agency, Hazardous Waste Trans-portation Manual, prepared for the U.S. Depart-ment of Transportation, (Springfield, VA: National Tech-nical Information Service, November 1981).

9415 U.S. C. 2601

9515 2605(a)(3). CFR 761, Subpart


Nuclear Regulatory Commission

NRC regulates the receipt, possession, use, andtransfer of byproduct, source, and special nuclearmaterials. 97 A Memorandum of Understanding be-tween DOT and NRC identifies the responsibilitiesof each agency. 98 NRC sets standards for the de-sign and performance of packages used to transporthigh-level radioactive materials and conducts inspec-tions of its licensees. Other NRC regulations requireadvance notification to States of certain shipmentsand provide for physical security measures. DOThas regulatory authority over the design and per-formance of packages used to ship low-level radio-

active materials and transportation operations for

h igh- leve l mater ia l s inc luding h ighway rout ing .

Chapter 3 contains a detailed examination of the

requirements for containers for transporting radio-active materials.

Occupational Health andSafety Administration

OSHA of the U.S. Department of Labor is re-sponsible for safety and health in the workplace.However, the Occupational Safety and Health Actprohibits OSHA from acting where another Fed-eral agency has already exercised its regulatory au-thority.” A Memorandum of Understanding be-tween DOT and OSHA delineates those areas inwhich DOT has exercised its authority. Transpor-tation presents two major regulatory areas of con-cern—vehicle operator safety and the protection ofworkers handling packages containing hazardousmaterials at shipping or transfer facilities. DOT hasestablished requirements for vehicle operators, soOSHA has not taken any regulatory action. OSHAhas generally accepted DOT’s packaging rules, al-though there have been instances where packagesmeeting DOT transport requirements could not behandled in the workplace.l00

OSHA also requires chemical manufacturers andimporters to develop or obtain Material Safety DataSheets (MSDSs) for hazardous substances and to la-bel containers that are used in or leave the work-place in a manner that does not conflict with DOTregulations.

101 Although the contents of MSDSs

vary, they can provide basic information about haz-ardous materials present in a State or locality; how-ever, they rarely provide any transportation-relatedinformation.

Interstate Commerce Commission

The regulatory role of ICC has been limited sincethe establishment of DOT. ICC requires carriers ofhazardous materials to publish rates.102 In addition,ICC is required to investigate whether safe and ade-quate service, equipment, and facilities are providedby carriers subject to ICC jurisdiction.103 Commonand contract motor carriers of hazardous materialsmust obtain ICC operating authority, although safe-ty ratings for certifications are provided by BMCS.The safety rating is based on a number of factorsincluding violations over the past 5 years, discov-ered by BMCS during safety management audits,and driver equipment compliance reviews; the car-rier’s improvement or lack thereof during the sametime period; and the carrier’s accident record. WhileBMCS currently has information stored in a com-puterized database on more than 200,000 interstatecarriers and 25,000 hazardous materials shippers, lessthan 15 percent of the entries contain sufficient in-formation for providing initial safety ratings.

Department of Energy

Under the provisions of the Nuclear Waste Pol-icy Act (NWPA) of 1982, DOE acquired responsi-

bility for high-level nuclear waste movement, stor-

age , and d i sposa l . DOE wi l l be respons ib le for

‘TThe Nuclear Regulatory Commission authority is derived from theAtomic Energy Act of 1954, 42 U.S.C. 2011.

9H44 F.R. 38690, July 2, 1979.’29 U.S.C. 653 (b)(l).‘wSee the Occupational Safety and Health Administration (OSHA)

regulations for container and portable tank storage (29 C F R1910. lo). The OSHA regulations require use of U.S. Departmentof Transportation (DOT) approved metal containers and portable tanksfor flammable or combustible liquids; these requirements were basedon N’ational Fire Protection Association (NFPA) standards. Howm’er,DOT permits the use of fiber and plastic containers for certain flam-

mable materials. NFPA has amended their standards to conform toDOT regulations, but OSHA has not yet changed its regulation. How-ever, industry has been advised that any appro~’ed DOT container isacceptable.

lo] ?9 CFR 1910 1200 The Occupational Safety and Hea~?~ Adm~n-. . .istration (OSHA) standard also requires employers in the manufac-turing sector to develop written hazard communication programs toinform and train workers about hazardous substances. OSHA IS con-sidering the expansion of this standard to include employees in otherIndustrial sectors.

1(’J49 U,S.C. 10702 and l@i61.‘“49 U.s.c, 11101.


moving the waste from utility reactor sites to a geo-logic repository, targeted for completion in 1998, or

a monitored retrievable storage facility if one is ap-proved by Congress. DOE is authorized by DOTto approve packaging and certain operational aspects

of its own research, defense, and contractor ship-

ments, provided that DOE complies with NRCstandards and employs procedures equivalent tothose of NRC in the container certification proc-ess. 104 In the past, DOE has often chosen to use

procedures equivalent to but not identical to N R Cregulations for its shipments; however, DOE has in-dicated that all NWPA shipments will be conductedin accordance with NRC and DOT regulations.105

Chapter 3 provides more information on the NWPAshipments.

Department of DefenseDOD transports many hazardous materials. When

government contractors or other commercial par-ties transport DOD materials, DOT and NRC reg-

ulations apply. Shipments undertaken by DOD it-self, however, are subject to their own requirements,which are similar to those developed by DOT andNRC.l06 DOD requirements and operations werenot reviewed for this study.

National Transportation Safety Board

NTSB was created in 1966 as an arm of the De-partment of Transportation. A 1975 legislative ac-tion made NTSB an independent agency that re-ports directly to Congress. NTSB has a hazardousmaterials branch that investigates accidents for allmodes and determines the probable cause. In addi-tion, NTSB has conducted studies on topics suchas hazardous materials regulatory compliance, riskanalysis, railroad yard safety, and hazard classifica-tion. Although NTSB is not a regulatory agency,its recommendations have influenced DOT programs.

‘~49 CFR 173.7.105 Memorandum of Understanding between the Research and SPe-

cial Programs Administration of the U.S. Department of Transporta-tion and the Office of Civilian Radioactive Waste Management of theU.S. Department of Energy for the Transportation of Radioactive Ma-terials Under the Nuclear Waste Policy Act, September 1985.

1’%f.S. Department of Defense regulations are recognized by the Re-search and Special Programs Administration. See 49 CFR 173.7 and177.806.

STATE AND LOCAL REGULATION

Evolution of State Programs

The entry of State governments into the field ofhazardous materials transportation safety began inearnest in the early 1970s. A series of episodes in-volving radioactive materials prompted States to callfor more vigorous efforts to monitor and control theshipment of hazardous materials. Since it was appar-ent that the resources committed by the FederalGovernment to police shipments of radioactive ma-terial—much less other, more common, forms of haz-ardous materials—were limited, the States began toseek ways to develop inspection and enforcementcapabilities. The task was formidable since Statesthen had virtually no organizational structure, le-gal authority, or personnel with specialized compe-tence in the area of hazardous materials control.

In 1973, DOT and NRC’s predecessor, the AtomicEnergy Commission, undertook a program in co-operation with nine States to collect data on theamount and type of radioactive material originat-ing in and passing through selected locations. Thiseffort, known as the State Surveillance of Radio-active Materials Transportation (SSRMT) program,was directed at determining the magnitude of theproblem posed by radioactive materials and the de-gree of regulatory noncompliance by shippers andcarriers. The SSRMT study identified needed im-provements in data collection, recordkeeping, andenforcement and pointed to the need to strengthenState-level prevention and enforcement mechanismsfor all types of hazardous materials. SSRMT find-ings thus helped form the basis for a more substan-tial Federal program to aid in the development ofState hazardous materials safety programs.


State Hazardous Materials EnforcementDevelopment Program

Shortly after the SSRMT study was completed,responsibility for administering Federal-State coop-erative programs was transferred to RSPA. UnderRSPA, the programs were broadened to include allclasses of hazardous materials, and emphasis shiftedfrom data collection to regulatory enforcement, espe-cially development of State organizations that couldassume a greater share of inspection and enforce-ment functions.l07

In 1981, RSPA initiated the State Hazardous Ma-terials Enforcement Development (SHMED) pro-gram, designed to assist States in the enforcementof hazardous materials safety standards and regula-tions, primarily those pertaining to highway trans-portation. SHMED had two objectives: 1) decreas-ing the number of hazardous materials transpor-tation accidents by strengthening State enforcementcapabilities, and 2) promoting uniformity in Statehazardous materials safety regulations and enforce-ment procedures. The SHMED program offered par-ticipating States contracts to conduct a three-phaseprogram. The first phase, funded at a maximum of$20,000 per State, concentrated on data gathering,passage of enabling legislation, and adoption of Fed-eral regulations. The second phase had a fundinglimit of $40,000 and required States to develop andimplement an inspection program. In the thirdphase, with funding of up to $60,000, States hadto establish enforcement procedures. In all, 25 Stateshave participated in SHMED (see figure 4-6).

Compared to most Federal-State programs, SHMEDis small. The 1984 budget was $1.1 million, and over-all expenditures through 1986, when the programexpires, will amount to just over $3 million. None-theless, it has had a significant influence in shap-ing State enforcement programs and in definingwhat constitutes an effective program. While someStates, such as New Jersey, have established enforce-ment programs without SHMED support, the ma-jority of existing State programs have had SHMEDfunding. Indeed, New Jersey enforcement officers par-ticipated in Maryland SHMED training programs.

]o~stephen N. Sa]omon, .$tate Surveillance of Radioactive Materi-

als Transportation: Final Report, NUREG-1015 (Washington, DC: U.S.Nuclear Regulatory Commission, Office of State Programs, 1984).

Motor Carrier Safety Assistance Program

When the SHMED program ends this year, Fed-eral support of State multimodal hazardous mate-rials enforcement capabilities will diminish, andthere will be no programs specifically targeted to haz-ardous materials transportation by rail, water, andair. However, Federal funds for State inspection andregulatory enforcement on the highways will beavailable through MCSAP, authorized under theSurface Transportation Assistance Act of 1982. ’08

The MCSAP grant program, administered byBMCS, is designed to improve State capabilities toenforce motor carrier safety regulations and to en-able States to increase safety inspections of intrastateand interstate commercial vehicles in terminals andalong roadsides. The development of an accuratedatabase on compliance with safety regulations isa secondary goal of MCSAP, and funds may be usedfor data collection, storage, and analysis. The actspecifically indicates that MCSAP may apply to en-forcement of rules pertaining to vehicles used totransport hazardous commodities. Figure 4-7 showsthe States participating in MCSAP.

Under MCSAP, States may apply for two typesof grants. Development grants, available for a max-imum of 3 years, provide funding for States need-ing to establish or substantially modify an enforce-ment program. Implementation grants providefinding for States ready to initiate or enhance estab-lished enforcement programs. To qualify for an im-plementation grant, a State must:

●

●

●

agree to adopt and enforce the Federal MotorCarrier Safety Regulations (49 CFR 390-399) in-cluding highway-related portions of the FederalHazardous Materials Regulations (49 CFR 171-173 and 177-178) or compatible State rules, reg-ulations, standards, and orders applicable tomotor carrier safety;submit an enforcement and safety program planand designate a lead agency for administeringthe plan;agree to devote adequate resources to adminis-tration of the program and enforcement of rules,regulations, standards, and orders; and

IJgPublic Law 97-+24. Motor Carrier Safety Assistance Programgrant regulations are spelled out in 49 CFR 350.


Figure 4-6.—States Participating in the State Hazardous Materials Enforcement Development Program

Key:States participating in the State Hazardous MaterialsEnforcement Development (SHMED) program. H...States not participating in the State Hazardous MaterialsEnforcement Development (SHMED) program.


have established statutory authority to regulateprivate and for-hire motor carriers and providefor right of entry into vehicles and facilities.

MCSAP is financed through the Highway TrustFund under a 5-year authorization: $10 million wasauthorized for fiscal year 1984, and $10 million wasto be added each year up to a maximum of $50 mil-lion by fiscal year 1988. The Federal grants were tobe matched by States on an 80:20 basis. To date,actual appropriations have been significantly lower.The projected total amount of development and im-plementation grants under MCSAP is estimated tobe $13 million for 1985; approximately $17.4 mil-

lion is authorized for 1986.109 However, the Secre-tary of Transportation has requested that the $50million maximum funding level for MCSAP be au-thorized in fiscal year 1987.

State officials committed to expanding hazardousmaterials enforcement have expressed concern thatMCSAP gives priority to general motor carrier safetyprograms and that hazardous materials enforcementactivities—especially those for nonhighway modes—

l~Gary Curtis, Chief, Operations Division, Bureau of Motor Car-rier Safety, personal communication, Feb. 13, 1986.


Figure 4=7.—States Participating in the Motor Carrier Safety Assistance Program

\

u. I I I 4

Key:States participating in the Motor Carrier Safety AssistanceProgram (M CSAP).

States not participating in the Motor Carrier Safety AssistanceProgram (MCSAP). u


are being slighted. Since MCSAP funds are re-stricted to highway safety purposes, the broaderquestion arises of how States are to develop or im-prove inspection, regulation, and enforcement forother modes of transportation, because no similarFederal programs exist for water, rail, or air. Par-ticular concern has been expressed by States withhigh concentrations of nonhighway hazardous ma-terials shipments. In an effort to continue the workbegun under the SHMED program, RSPA andBMCS recently sponsored four regional conferences,referred to as the Cooperative Hazardous Materi-als Enforcement Development Program, to helpStates promote uniform enforcement practices.

Commercial Vehicle Safety Alliance

In an initiative independent of the Federal Gov-ernment, 26 States and the Canadian Provinces ofAlberta and British Columbia have become mem-bers of the Commercial Vehicle Safety Alliance(CVSA), formed in 1980. Created under the leader-ship of California, Idaho, Oregon, and Washing-ton, CVSA seeks to foster interstate cooperationin establishing uniform safety inspection standardsfor trucks. Under the terms of the alliance, mem-bers agree to use common inspection standards andout-of-service criteria and to honor the inspectionsof other jurisdictions. In this way, CVSA hopes to


secure greater acceptance of motor carrier inspec-tion programs by the trucking industry and to re-duce delays caused by duplicative inspections of in-terstate truck shipments.

CVSA inspection standards and procedures havebeen developed in cooperation with BMCS andRSPA. The inspection process concentrates on thecritical items (brakes, steering, tires, wheels, couplers,and suspension) most frequently identified as causesof truck accidents. In addition, the driver’s qualifi-cations and log book are checked. CVSA has re-cently added hazardous materials inspection stand-ards and out-of-service criteria to its procedures. Onpassing inspection in a CVSA jurisdiction, the ve-hicle receives a decal valid for 3 months allowingit to travel through member States without furtherinspection unless a visible or audible defect is de-tected. Reciprocity, uniformity, and consistency arethe key concepts of the alliance.

A CVSA associate membership program has re-cently been formed through which industry mem-bers serve in an advisory and nonvoting capacityto contribute their views, experience, and concerns.Since many of the States participating in CVSA areinvolved in SHMED and MCSAP as well, Stateagencies and personnel are developing a nationwideprogram of State-level hazardous materials transpor-tation inspection and enforcement capability. Thethree organizations now hold joint national and re-gional meetings. CVSA sees its role as providinga link between Federal and State agencies respon-sible for motor carrier and hazardous materials in-spection and enforcement.

Current State and Local Activities

A condition of State participation in MCSAP ispassage of legislation adopting Federal motor car-rier safety regulations and those portions of Federalhazardous materials regulations pertaining to high-way shipments. MCSAP also requires States to con-duct inspections of both intrastate and interstatemotor carriers. As of August 1985, all but two Stateshad adopted 49 CFR wholly or in part; however,legal processes allowing extension of 49 CFR to in-trastate motor carriage have only just begun in manyStates.

Despite this strong encouragement for uniformregulations and enforcement policies, great regula-

tory variation remains from State to State. Familiar-ity with numerous State laws is thus a necessity forinterstate carriers, and development of nationallystandardized training is difficult. Some States exemptspecific commodities, such as agricultural fertilizers;others exclude private carriers from regulation. InIllinois, hazardous materials regulations apply onlyto quantities that require placarding by Federal law,while in South Dakota, shipments of flammable andcombustible liquids are exempt. 110 According to a1985 survey of 47 States, 46 States indicated thatthey regulate common and contract carriers, whileonly 43 said that private carriers are regulated. 1ll

Moreover, the extent to which intrastate shipmentsof hazardous materials are regulated also varies. Forexample, some jurisdictions have established morestringent container requirements for intrastate trans-port, while in others, second- or third-hand cargotanks that no longer meet Federal standards maybe used. 112

Restrictive State and local legislation is frequentlypassed in an attempt to regulate the transportationof hazardous materials perceived as posing a highrisk to public safety. Many of these laws establishrequirements in areas not presently covered by Fed-eral regulations; others are enacted because Stateand local governments believe that existing Federalrequirements are inadequate. A recent DOE reportidentified 513 State and local laws that affect thetransportation of radioactive and other hazardousmaterials. 113 Moreover, faced with increasing re-

: IJLI $. Department of Tr:lnspcJrtatl~n, Matenak Transportation ‘u-

reau, ‘:&ate Hazardous Liaterials Enforcement Development (SHMED)Prograln Workshop Proceechngs,” unpublished typescript, 1983, pp.121 and 183.

I I 1(-], s+ ~epartment of Transportation, Research and Special pro-grams Administration, “State Hazardous Materials Enforcement andDevelopment (SHMED) Hazardous Materials Survey,” unpublishedtypescript, Sept. 30, 1%5.

i I:New, York City rcgu]ati[>ns require the use of ~teel cargo tanks for

\hlpmcnts of flnmmable materials; Federal regulations permit the useof steel or alumlnurn. N’ew York City Fire Department Dlrectlve 7-?-I,hlar. 23, 1984, and rcfislons. Ch. 3 ~c)ntains additional informationon cargo tanks.

‘ ] ‘N.P. Knox, et al., Transportation of Rad~oacr]te and Hazardous,~laterlals: A Summar\ ot Srate and Local Leg/dati~e Requ)rcmentsfor the ,%iodEnding De~-twdx’r JJ, 1984, ORNL/’TM-9563 (Oak Ridge,TN: U.S. Department of Energy, Septemhm 1985). The tvpes of re-quirements ldent]fied by the survey include transport apprc)~als, con-ditional bans on transportation, documcmtatlon, escorts, Federal/Statect>mpliance, legal and finam la] requirements, notification, permits, pla-carding, transport prwhibitlons, routing restrll’tlons, and vch icle speci-fications. Most State and local laws apply to highway and rail ship-ments; however, several address ports and one deals with alr transport.

. —


sponsibilities for the enforcement of hazardous ma-terials regulations and emergency response activi-ties and a general trend of decreasing Federalfinancial support, some State and local governmentshave turned to permit, licensing, and registrationfees to help cover the costs of their programs. Un-like States, local governments do not receive Fed-eral grants for enforcement programs and must relyon alternate sources of funding.

Bridge, tunnel, and turnpike authorities also estab-lish regulations governing shipments of hazardousmaterials. The potential catastrophic consequencesof an accident inside a tunnel or on a bridge under-score the need for safety precautions and emergencyresponse planning. A recent survey conducted bythe International Bridge, Tunnel, and Turnpike As-sociation found that the three primary concerns oftheir U.S. members are: having appropriate incidentresponse systems, obtaining information on move-ments of hazardous materials, and adequate indem-nification including loss of revenue coverage. 114 Re-quirements imposed by transportation facilities ofteninclude prenotification, escorts, and prohibitionsagainst shipments of certain materials such as flam-mable gases.

Licensing, Registration, and Permits

Licensing, registration, and permit requirementsenable State and local governments to monitor andobtain information from shippers and carriers oper-ating within their jurisdictions. The three terms—permit, license, and registration—are used to de-scribe a variety of programs in different jurisdictions.However, a general distinction can be made betweenregistration programs designed to identify shippersand carriers and permitting or licensing programs,usually intended to obtain assurances of fitness andmore detailed information about company opera-tions. Fees from such programs are often used tocover only the administrative costs of processing ap-plication forms; however, they are also used to gen-erate funds for emergency response and enforcementactivities.

State and local requirements vary; some focus onspecific types of hazardous materials, while othersare broader in scope. Information requested fromshippers and carriers may include the types of ma-terials they handle, origins and destinations of ship-ments, routes followed, miles covered in a given year,proof of insurance coverage, vehicle inspection dates,and drivers employed. There are also differences inthe period of time covered by a permit and the feeslevied. For example, 34 States require transport com-panies carrying hazardous wastes to register and paya fee on a per vehicle or per company basis.115 Feesimposed range from a low of $3 up to $500 and maybe good for one trip only or for as long as a year.Some States also require special driver training orcertification, vehicle registration and inspection, andproof of liability insurance. Table 4-7 summarizesState hazardous waste permit requirements.

Local jurisdictions may also require separate per-

mits for carriers operating within their boundaries.

Denver requires carriers of hazardous materials (ex-cept radioactive materials, and diesel and gasoline

fuel in quantities under 111 gallons) to obtain an-nual permits by mail. Fees are assessed based on thenumber of trucks in a carrier’s fleet; they range from

$50 per year for a fleet of 1 or 2 trucks to $600 per

year for 500 or more trucks. A description of the

material to be transported (based on historical in-

formation), proof of l iability insurance as requiredby Federal regulations (49 CFR 397.9), and acknowl-edgment of the routes designated by the city forhazardous materials shipments must be submitted.

Funds generated are used to support the city’s haz-

ardous materials transportation enforcement activ-ities and administration of the permit program. ’16

Data obtained through permit, licensing, or regis-

tration requirements may be used to target enforce-

ment activities, plan emergency response programs,

or develop regulations. For example, emergency re-

sponse personnel would use data on the types ofmaterials they are l ikely to encounter to develop

115U.S. Congress, Office of Technology Assessment, Transportationof Hazardous Materials: State and Local Activities, OTA-SET-301(Washington, DC: U.S. Government Printing Office, March 1986).

] lqlnternatlonal Bridge, Tunnel, and Turnpike Association, “Haz- llcArticle VI of Chapter 22, Denver Municipal Code; and Tonyardous Materials Transportation Survey Results, ” unpublished type- Massaro, Office of Environmental Affairs, City and County of Den-scrlpt, June 8, 1984. ver, personal communication, Feb. 11, 1986.


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appropriate training programs. Driver or carrier in-formation is important to enforcement officials for

identifying individuals or firms with poor perform-

ance records. Regulatory agencies interested in pro-viding industry with information on new or amendedregulations must know the location of shippers and

carriers of hazardous materials. An example of astrong State program, described in box 4A, is Cali-fornia’s licensing and computerized statewide data-base and information system.

Proliferation of State and local licensing, registra-tion, and permit requirements, usually applicableto trucks, can pose hardships for carriers. Aside fromthe impact of a requirement within the regulatingState, transporters are concerned about the cumu-lative economic impact of these requirements andparticularly about permits or licenses that must beobtained per vehicle or per trip. The latter can in-crease transit time. One carrier noted that, in or-der to ensure that his driver was completely preparedto transport a load of hazardous wastes from Geor-gia to Wisconsin, he had to telephone every State

along the route, sometimes calling as many as fouror five agencies within a State, before he was fullyapprised of all the requirements. *17 Many truckingcompany officials believe that adoption of specialrequirements by different States impedes interstatecommerce and is inconsistent with the HMTA, andhave taken legal action. These court cases are de-scribed later in this chapter.

Notification

Notification requirements have been establishedby numerous local governments; transportation fa-cilities, such as bridge and tunnel authorities; andStates. A study conducted by Battelle Memorial In-stitute for DOT identified 136 notification laws per-taining to hazardous materials transportation.118

llTReW~~ at the U.S. Congess, OfYice of Technology Assessment,Workshop on State and Local Activities, May 30, 1985.

1]6Battelle Columbus Laboratories, Assessment of State and LocalNotification Requirements for Transportation of Radioactive and OtherHazardous Materials (Columbus, OH: Jan. 11, 1985).


The vast majority of these apply to trucks; a fewapply to rail. Notification requirements, as definedby the study, include notification prior to shipments,periodic summaries, and reports on individual ship-ments filed after a trip. Prenotification is requiredby 23 State and 77 local regulations; 14 call for peri-odic reporting and 22 concern individual trip re-ports. Transportation facilities almost universally re-quire some type of prenotification to arrange forescorts and notify emergency response agencies;these requirements focus on radioactive materialsin addition to other hazardous materials, such asexplosives and flammable materials. States and mu-nicipalities have tended to regulate spent fuel orhigh-level radioactive wastes, although some also in-clude other radioactive materials. Table 4-8 listsState and local notification laws and the types ofhazardous materials covered.

The Battelle study found that State and local gov-ernments typically give two reasons for enacting no-tification requirements: to provide data for planning(including better routing and safety regulations), andto improve emergency response. However, lack ofenforcement of notification regulations means thatthere is little reason for shippers and carriers to com-ply, and several local agencies were found to be un-aware of the notification laws they were supposedto enforce. Some community officials reported thatthey have never received a notification, even thoughit is required by local ordinance. The Battelle studyobserved that, while there are instances of conscien-tious enforcement and data collection, many localagencies charged with enforcing regulations on pre-notification give the task relatively low priority.Often when information is collected, it is simply filedand not used for planning purposes.

Transporters are concerned that proliferation ofState and local notification regulations creates sched-uling difficulties and increases paperwork and staffneeded to monitor requirements.

Hazardous Materials Driver’s Licenses

A recent insurance industry publication indicatesthat one out every three tractor-trailers can be ex-pected to crash in a year.119 While BMCS requiredments for motor carrier drivers include written

I i~n~urance In5titute for Highway Safety> “Big Trucks and HighwaySafety, ” unpublished typescript, 1985, p. 1.

and road tests and a physical examination, thewritten test is used as an instructional tool onlyand a passing grade is not required. *20 Althoughmany States have established classified commerciallicenses, drivers in 19 States are allowed to operatelarge trucks with a general commercial license, anddriving a pick-up truck is very different from driv-ing a large cargo tanker.121 Moreover, it is commonpractice for many truck drivers, including those whohandle hazardous materials, to possess driver’slicenses from more than one State to avoid multi-ple violations in any given State. A 1980 investiga-tion of drivers involved in large truck crashes byNTSB found that 44 drivers held 63 licenses, had98 suspensions, were involved in 104 previouscrashes, and had 456 traffic convictions.122 In rec-ognition of this situation, the American TruckingAssociation (ATA) has urged Congress and DOTto promote the implementation of a single licenseby all States so that truck drivers may hold licensesfrom their State of legal residence only. ATA hasalso recommended that applicants for a truckdriver’s license be given written examinations androad tests applicable to the type of vehicle that willbe driven.123

Drivers transporting hazardous materials alsoshould understand the special hazards associatedwith their cargo and the regulations governing suchshipments. Data collected by DOT indicate that 62percent of all accidents involving hazardous mate-rials are the result of human errors.124 This statis-tic underscores the importance of driver training asan accident prevention tool. Under HM-164, DOTrequires drivers of vehicles carrying high-level radio-active waste to undergo training. Driver training re-

1 2 049 CFR 391.35(b).

1211n5urance In5titute for Highway Safety, OP. cit. t P. 3.ljlNational Tran5Pfiation Safety Board, safety Eff&tiveness Eva/u-

arion of Detection and Control of Unsafe Interstate Commercial Driv-ers, PB1980-162969 (Washington, DC: Feb. 15, 1980), pp. 18-20.

]ZJThomas Donohue, president and Chief Executive officer, Amer-ican Trucking Association, Statement Before the U.S. Senate, Com-mittee on Commerce, Science and Transportation, Oct. 29, 1985. Anew National Transportation Safety Board report also calls for a licens-ing system based on vehicle types. National Transportation SafetyBoard, “Training, Licensing, and Qualification Standards for Driversof Heavy Trucks,” NTSB/SS-86/02, unpublished typescript, spring1986,

lzqMark Abkowitz and George List, “Hazardous Materials Transpor-tation: Commodity Flow and Information Systems,” OTA contrac-tor report, unpublished typescript, December 1985.


Table 4.8.–Commodities Covered by Notification Requirements, 1985

Spent fuel Other Otherand/or high- radioactive Hazardous hazardouslevel waste materials wastes materials

state:Arkansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . .California. . . . . . . . . . . . . . . . . . . . . . . . . . . . .Colorado . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Connecticut . . . . . . . . . . . . . . . . . . . . . . . . . .Florida . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Georgia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Maine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Massachusetts . . . . . . . . . . . . . . . . . . . . . . . .Michigan . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Mississippi . . . . . . . . . . . . . . . . . . . . . . . . . . .Nevada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .New Hampshire . . . . . . . . . . . . . . . . . . . . . . .New Jersey . . . . . . . . . . . . . . . . . . . . . . . . . . .New Mexico . . . . . . . . . . . . . . . . . . . . . . . . . .North Carolina . . . . . . . . . . . . . . . . . . . . . . . .Ohio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Oregon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Rhode Island . . . . . . . . . . . . . . . . . . . . . . . . .South Carolina . . . . . . . . . . . . . . . . . . . . . . . .Tennessee . . . . . . . . . . . . . . . . . . . . . . . . . . . .Vermont . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Virginia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

x x. . . . . . . . . .x

. . . . . . . . . .xxx

. . . . . . . . . .

. . . . . . . . . .

. . . . . . . . . .xxxx

. . . . . . . . . .xxxx

. . . . . . . . . .xxxxx

. . . . . . . . .

. . . . . . . . .

. . . . . . . . .xxx

. . . . . . . . .

. . . . . . . . .x

. . . . . . . . .xxx

. . . . . . . . .xx

. . . . . . . . .x

. . . . . . . . .xx

. . . . . . . . .xx

. . . . . . . . .x

. . . . . . . .

. . . . . . . .. . . . . . . . . . . . . . . . .. . . . . . . . .

xxxxx

. . . . . . . .x

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .. . . . . . . . .. . . . . . . . .. . . . . . . . .. . . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .x

. . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . .x. . . . . . . . .

x . . . . . . . .. . . . . . . .. . . . . . . .. . . . . . . .. . . . . . . .

. . . . . . . . .

. . . . . . . . .

. . . . . . . . .x

Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

LocalChickaswa, AL . . . . . . . . . . . . . . . . . . . . . . . .Phoenix, AZ . . . . . . . . . . . . . . . . . . . . . . . . . .Tempe, AZ....... . . . . . . . . . . . . . . . . . . . . .Tucson, AZ . . . . . . . . . . . . . . . . . . . . . . . . . . .Morro Bay,CA . . . . . . . . . . . . . . . . . . . . . . . .New London, CT . . . . . . . . . . . . . . . . . . . . . .Garden City, GA.. . . . . . . . . . . . . . . . . . . . . .Lawrence, KS . . . . . . . . . . . . . . . . . . . . . . . . .Covington, KY . . . . . . . . . . . . . . . . . . . . . . . .Kenner LA . . . . . . . . . . . . . . . . . . . . . . . . . . .Kent County, MD . . . . . . . . . . . . . . . . . . . . . .Prince George’s County, MD . . . . . . . . . . . .Newton, MA . . . . . . . . . . . . . . . . . . . . . . . . . .Ypsilanti, Ml . . . . . . . . . . . . . . . . . . . . . . . . . .Missouli, MT . . . . . . . . . . . . . . . . . . . . . . . . . .Binghamton, NY. . . . . . . . . . . . . . . . . . . . . . .Geneva, NY . . . . . . . . . . . . . . . . . . . . . . . . . . .Ithaca, NY . . . . . . . . . . . . . . . . . . . . . . . . . . . .Jefferson County, NY . . . . . . . . . . . . . . . . . .New York, NY . . . . . . . . . . . . . . . . . . . . . . . . .Rockland County, NY . . . . . . . . . . . . . . . . . .St Lawrence County, NY . . . . . . . . . . . . . . .Syracuse, NY . . . . . . . . . . . . . . . . . . . . . . . . .Tompkins County, NY . . . . . . . . . . . . . . . . . .Vestal NY . . . . . . . . . . . . . . . . . . . . . . . . . . . .Yates County, NY . . . . . . . . . . . . . . . . . . . . .

Facilities:Golden Gate Bridge, CA . . . . . . . . . . . . . . . .Delaware Memorial Bridge, DE . . . . . . . . . .Francis Scott Key Bridge, MD. . . . . . . . . . .Harry W. Nice Memorial Bridge, MD . . . . .John F. Kennedy Memorial Highway, MD.

17 14 9 4

xx

. . . . . . . . . .

. . . . . . . . . .. . . . . . . . .. . . . . . . . .. . . . . . . . .

xxxxxx

. . . . . . . . .

. . . . . . . . .x

. . . . . . . . .xx

. . . . . . . . .

. . . . . . . .xx. . . . . . . . . .

xxxBBx

. . . . . . . . . .xxxBxxxxxxxxxxxx

. . . . . . . . .

. . . . . . . . . . . . . . . . .. . . . . . . .. . . . . . . . .

. . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . .

. . . . . . . . .x

. . . . . . . .xx

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .xxxxxxxxx. . . . .

xxxxx

. . . . . . . .

. . . . . . . .x

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .

. . . . . . . .. . . . . . . . . . .

xxxxx

. . . . . . . . .x

. . . . . . . .xxx

. . . . . . . . .

. . . . . . . . .

. . . . . . . . . x


Table 4-8.—Commodities Covered by Notification Requirements,1985-Continued

Spent fuel Other Otherand/or high- radioactive Hazardous hazardouslevel waste materials wastes materials

Susquehanna River Bridge, MD. . . . . . . . . . x x . . . . . . . . . xWilliam Preston Lane, Jr.

Memorial Bridge, MD . . . . . . . . . . . . . . . . x x xMassachusetts Turnpike Authority, MA. . .

. . . . . . . . .x x . . . . . . . . . . . . . . . . .

Blue Water Bridge, Ml. . . . . . . . . . . . . . . . . . B B xMackinac Bridge, Ml . . . . . . . . . . . . . . . . . . .

. . . . . . . . .x x x

Garden State Parkway, NJ . . . . . . . . . . . . . .. . . . . . . . .

x x . . . . . . . . . . . . . . . . .Newark International Airport, NJ . . . . . . . . x x xNew Jersey Turnpike, NJ , . . . . . . . . . . . . . .

. . . . . . . . .x x x

Bayonne Bridge, NY . . . . . . . . . . . . . . . . . . .. . . . . . . . .

x x xGeorge Washington Bridge:

. . . . . . . . .

Expressway, NY . . . . . . . . . . . . . . . . . . . . . B x . . . . . . . . . . . . . . . . .Lower Level, NY. . . . . . . . . . . . . . . . . . . . . B x . . . . . . . . . . . . . . . . .Upper Level, NY . . . . . . . . . . . . . . . . . . . . . x x x

Geothals Bridge, NY . . . . . . . . . . . . . . . . . . .. . . . . . . . .

x x xHolland Tunnel, NY . . . . . . . . . . . . . . . . . . . .

. . . . . . . . .B x . . . . . . . . . . . . . . . . .

Kennedy International Airport, NY . . . . . . . x x xLa Guardia Airport, NY . . . . . . . . . . . . . . . . .

. . . . . . . . .x x x

Lincoln Tunnel, NY . . . . . . . . . . . . . . . . . . . .. . . . . . . . .

B x . . . . . . . . . . . . . . . . .NOTE: X= exlstlng; B= bans on tranaportatlon.

SOURCE: Battelle Human Affalra Reaearch Center.

quirements have also been established by DOT forcarriers of flammable cryogenic liquids. One carrierspecializing in radioactive materials transport indic-ated to OTA that drivers employed by his firm whohaul hazardous materials have better safety recordsthan other drivers.125 Some carrier associations, in-surance industry representatives, State motor vehicleadministrators and enforcement personnel, and theNational Hazardous Materials Transportation Advi-sory Committee have voiced strong support for anational hazardous materials driver’s license requir-ing special training and testing. Driver trainingwould emphasize how to handle hazardous materi-als and respond to accidents. In addition, some largeshippers and a few carriers have established specialtraining courses for their drivers; examples of theseprograms are described in chapter 3.

Several States have already established special cer-tification requirements for drivers of vehicles usedto transport hazardous wastes. (See table 4-7.) Cali-fornia recently passed legislation requiring special

[zjcharle~ Mayer, Vice president, Nuclear and Hazardous Materi-als Division, Tri-State Motor Transit Co., in U.S. Congress, Of%ceof Technology Assessment, “Transcript of Proceedings-Transporta-tion of Hazardous Materials Advisory Panel Meeting,” unpublishedtypescript, Jan. 31, 1986.

certification for drivers of vehicles hauling hazard-ous materials, including hazardous wastes.126 Cer-tification requirements include a medical examina-tion and a written test on applicable Federal andState laws and regulations for the transportation ofhazardous materials and safe driving practices. Acertificate of training issued by an employer of adriver may be submitted in lieu of the written test.The California Highway Patrol and the Departmentof Motor Vehicles are presently developing train-ing regulations for drivers.

In addition to driver training and licensing, thereis also a need for improved access to informationon driver and carrier performance on a nationwidebasis. While existing Federal databases, describedin chapter 2, record data on violations and acci-dents, they would be more useful if they were in-terfaced and made accessible to State enforcementpersonnel. The SAFETYNET Program, being de-veloped by FHWA, and the National Driver’s Regis-try, being developed by the National Highway Traf-fic Safety Administration, will help, but their fullimplementation is at least a decade away.

Izbcalifornia Senate Bill No. 895, ch. 667, Statutes of 198+. Amend-

ments to the California law are presently under consideration.

1$4 ● Transportation of Hazardous Materials

Routing Requirements

Routing is an important tool for local governmentsfor preventing or reducing the consequences of haz-ardous materials accidents, and increasing numbersof cities, counties, and townships are adopting or-dinances requiring hazardous materials carriers touse designated routes. Carefully made routing de-cisions restrict hazardous materials shipments to thesafest routes, often Interstate highways and beltways,providing a low cost prevention measure that localpolice can enforce without additional equipment ortraining. On the other hand, routing requirementsmay lengthen and complicate trips for truckers, andsometimes bring local governments into conflict witheach other or with Federal regulations governing in-terstate commerce. The trucking industry has chal-lenged some local routing ordinances, claiming thatthey interfere with interstate commerce (see discus-sion below).

Two Federal regulations pertaining to the rout-ing of hazardous materials were described earlier inthis chapter. The first is a general statement direct-ing drivers of vehicles carrying nonradioactive haz-ardous materials to use routes avoiding heavily pop-ulated areas and tunnels, narrow streets, oralleys. ’27 The second regulation, referred to asDOT Docket HM-164, applies to shipments of radio-active materials. The first part of the regulation re-quires carriers of all radioactive materials to oper-ate on routes that minimize radiological risk. Thesecond part applies only to highway route controlledquantities of radioactive materials, such as spent nu-clear fuel; it requires the use of Interstate highwaysand beltways or State-designated alternate routes. 128

To assist States and communities with the desig-nation of routes for both radioactive and nonradio-active shipments of hazardous materials, DOT pub-lished two guidance documents. Both publications

12749 cm 397.9(a). In 1977, the Bureau of Motor Carrier SafetY Pro-

vided an interpretation of this provision stating:Sectmn 397.9(a) is not meant to preclude the use of expressways or ma-

jor thoroughfares to make deliveries within a populated area. In manyinstances, a more circuitous route may present greater hazards due to in-creased exposure. However, in those situations where a vehicle is passin g

through a populated or congested area, use of a beltway or other bypasscould be considered the appropriate route, regardless of the additionaleconomic burden.

42 F.R. 60088, NOV. 23, 1977.12849 cm 177.825. Highway route controlled quantities are defined

in 49 CFR 173.403(1).

underscore the importance of involving a broadspectrum of community and industry members andneighboring jurisdictions in the route selection proc-ess. This approach encourages States and localitiesto: tap the knowledge and resources of persons andorganizations experienced in the transportation ofhazardous materials, identify the scope and objec-tives of a routing assessment at the outset, and de-termine whether and how to weight subjective fac-tors in the routing analysis. It also provides a forumfor addressing related safety issues such as vehicleinspections and emergency response capabilities. A1983 demonstration program in Portland, Oregon,which successfully tested the DOT guidelines fornonradioactive materials, concluded that participa-tion by all affected parties early in the planning proc-ess increases the likelihood of consensus as to whichroutes are safest. 129 See chapter 2 for a descriptionof data-collection activities related to routing as-sessments.

Nonradioactive Materials.—The nonradioactivematerials guidelines include procedures for analyz-ing risks associated with the use of alternative routeswithin a jurisdiction.130 The risk assessment is basedon the probability of a hazardous materials accidentand the consequences of such an accident measuredin terms of the population and/or property locatedinside the potential accident impact zone. 131 Other

l~~city of portland, Oregon, office of Emergency Management, ‘az-

ardous Marerials Highway Rouring Study (Washington, DC: U.S. De-partment of Transportation, 1984), p. 48. The Portland experience issummarized in U.S. Congress, CMice of Technology Assessment, Trans-portation of Hazardous Materials: State and Local Activities, op. cit.,pp. 34-35 .

‘%.J. Barber and L.K. Hildebrand, Peat, Marwick, Mitchell, & Co.,Guidelines for Applying Criteria To Designate Routes for Transport-ing Hazardous Marerials, Implementation Package FHWA-lP-80-20(Washington, DC: U.S. Department of Transportation, 1980).

‘]’In 1985, the Ohio-Kentucky-Indiana (OKI) Regional Council ofGovernments discovered an error in the calculation of the populationconsequence factor. The U.S. Department of Transportation (DOT)acknowledged the error (“population density” for a route segment shouldhave been used instead of “population”), noting that it does distortroute analysis and that it only becomes apparent when route segmentlengths are extremely disparate. S.C. Chu, DOT, Research and Spe-cial Programs Administration, letter to A.H. Hessling, Executive Di-rector, OKI Councd of Governments, May 3, 1985. Another recentapplication of the DOT guidelines in Dallas-Fort Worth recognized thiserror and took into account the length of each link or route segmentin the estimation of the impact area. Dan Kessler, “Establishing Haz-ardous Materials Truck Routes for Shipments Through the Dallas-FortWorth Area,” in Transportation Research Board, “Proceedings Fromthe Conference on Recent Advances in Hazardous Materials Trans-portation Research: An International Exchange,” unpublished type-script, Nov. 10-13, 1985, pp. 443-464.


— — — -.-

U.S. Refuses to Forbid TruckingAtomic Waste Through New York\

\\

- ’ \ 1, CINCINNATI

Suburban Officials Leery Of On Routes For Hazardous Cargoes

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Photo credit: Office of Technology Assessment

Routing of hazardous materials has been a controversial issue in many localities.


factors, such as emergency response capabilities, andproximity to sensitive ecological areas or populationsthat may be unable to evacuate themselves, may beapplied when a risk analysis does not indicate thatone alternative is clearly superior to the others. Theguidelines suggest that such factors be selected by

consensus, reflecting community priorities.

A number of cities including Columbus, Denver,and Boston, have established hazardous materialsrouting restrictions based on the general routing pro-vision of the Motor Carrier Safety Regulations. l32

The types of regulations enacted by these jurisdic-tions include: restricting the use of certain roads,prohibiting transportation and delivery during rushhours, and specifying operating requirements.

However, reaching a regional consensus on rout-ing is frequently difficult, even when a broad com-munity spectrum is consulted. Often, for example,after a community routing risk assessment has beencompleted, hazardous materials carriers are divertedfrom central city routes onto surrounding road-ways—usually Interstate highways—that traverse lesspopulated areas. Since many suburban communi-ties do not have specialized hazardous materials re-sponse teams like their urban neighbors, they feelparticularly vulnerable to increased hazardous ma-terials traffic and resist agreeing to such routing re-quirements.

Since 1985, suburban townships in the Cincin-nati region have opposed the city’s efforts to divertthrough shipments from the Interstate highwayspassing through the city onto outlying highways.In contrast, Portland, Oregon, and neighboringjurisdictions succeeded in establishing a regionalrouting plan. The city enacted an ordinance ban-ning hazardous materials shipments from a tunnelthat had been used frequently by trucks carryingpetroleum products from the city to other parts ofthe State because fire officials determined that thetunnel posed an unacceptably high risk. (Portlandalso banned shipments from two grade-level railcrossings.) To compensate for any additional risks

posed by the rerouting decisions, the city of Port-land and three adjoining counties revised theirmutual aid agreements to ensure that the affectedcounties would have access to the city’s specializedfirefighting equipment.

Selecting routes within an urban jurisdiction mayalso be difficult. In Dallas-Fort Worth, a regionalrouting assessment based on the DOT guidelinesfound that the safest route through Dallas is the In-terstate. However, a Dallas ordinance enacted in1978 prohibits local hazardous materials vehiclesfrom using the elevated or depressed portions of theInterstate, diverting shipments onto city arterials.City, State, and regional officials are currently work-ing together to resolve this conflict; options underconsideration include restricting the times when theInterstate and city arterials can be used for trans-porting hazardous materials and upgrading sectionsof the Interstate highway.133

Radioactive Materials.–The procedures estab-lished by DOT for State officials interested in des-ignating alternate routes for radioactive shipmentsunder HM-164 are somewhat different,134 The ob-jective of the route selection methodology presentedin the guidance document for radioactive materi-als is to determine the route within a State to mini-mize the radiological impacts. Routing agencies inneighboring States are advised to work together, asselected routes in each State must match preferredroutes in bordering States. The guidelines suggestthe formation of interstate or regional coalitions forthe selection of routes and note that States mightalso enter into agreements designating, as portions ofpreferred routes, ferry routes for the transport of mo-tor vehicles on waters within their jurisdictions.

The methodology is based on the use of compara-tive risk index figures, not actual risk figures. Theprimary route selection factors identified by DOTare the levels of radiation exposure from normaltransport, and the public health and economic (de-contamination costs) risks associated with the ac-cidental release of radioactive materials. Public

l~zsee, e.g., Columbus Codes, 1959, Chapter 2551: Article VI ofChapter 22 of the Denver Municipal Code; and 46 F,R. 18921, Mar.26, 1981, for a description of Boston’s regulations. The Boston regula-tions have been challenged by the State and national trucking associ-ations; the lawsuit is discussed later in this chapter.

IUDan Kessler, No~h Central Texas Council of Governments, Ar-lington, TX, personal communication, Mar, 11, 1986,

1~4U.S. Department of Transportation, Research and Special Pro-grams Administration, Guidelines for Selecting Preferred HighwayRoutes for High way Route Controlled Quantity Shipments of Radio-active Materials, DOT/RSPA/MTB-84/22 (Washington, DC: June 1984(originally published in June 1981)).


health risks are determined by the frequency of se-vere transportation accidents and the number ofpeople that could be affected by a release. A methodfor determining the population within a potentialimpact area is suggested. Secondary factors may beused if a clear-cut choice does not emerge from evalu-ation of the primary factors or if unusual conditionsexist in the State that increase the importance ofone or more of the secondary factors.135 These fac-tors include emergency response and evacuation ca-pabilities, the location of special facilities, and traf-fic fatality and injury rates. Procedures for comparingsecondary factors based on the use of arbitrary scal-ing systems are also provided.

The guidelines have been used independently byNew York City and Connecticut to evaluate thesafety of shipping spent nuclear fuel from Long Is-land on routes through the city and through Con-necticut using a ferry to cross Long Island Sound.The New York City case, described in box 4B, pro-vides an example of the difficulties that can be en-countered when routing decisions are made with-out interjurisdictional consultation.

Other State and Local RegulatoryActivities

A number of States and localities have passed twoother types of laws concerning their ability to col-lect data and protect emergency responders fromliability.

Right-To-Know Laws.—Many States and munic-ipalities have passed legislation, commonly referredto as “right-to-know” laws, requiring the release ofinformation on the hazards associated with chemi-cals produced or used in a given facility. (Chapter2 discusses fixed facility inventories that have beenconducted by communities.) These laws have beenadopted because some manufacturers have been un-willing to comply with requests for information dueto concerns about protecting trade secrets or otherinformation considered to be proprietary.

The majority of State right-to-know laws addressboth community and employee access to informa-tion about workplace hazards. Table 4-9 lists theStates that have passed such laws. The provisions

‘)’ Ibid, p. 7.

Table 4-9.-State Rlght-to-Know Laws, 1985

Community WorkerState provisions provisions

Alabama. . . . . . . . . . . . . . . . . . . . . . . . . . . xAlaska . . . . . . . . . . . . . . . . . . . . . . . . . . . . xArizona. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Arkansas . . . . . . . . . . . . . . . . . . . . . . . . . . xCalifornia. . . . . . . . . . . . . . . . . . . . . . . . . . xColorado . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Connecticut . . . . . . . . . . . . . x xDelaware . . . . . . . . . . . . . . . x xFlorida . . . . . . . . . . . . . . . . . x xGeorgia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Hawaii . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Idaho . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Illinois . . . . . . . . . . . . . . . . . x xIndiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Iowa . . . . . . . . . . . . . . . . . . . x xKansas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Kentucky . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Louisiana. . . . . . . . . . . . . . . x xMaine . . . . . . . . . . . . . . . . . . x xMaryland . . . . . . . . . . . . . . . x xMassachusetts . . . . . . . . . . x xMichigan . . . . . . . . . . . . . . . . . . . . . . . . . . xMinnesota . . . . . . . . . . . . . . . . . . . . . . . . . xMississippi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Missouri . . . . . . . . . . . . . . . . x . . . . . . . . . . .Montana. . . . . . . . . . . . . . . . x xNebraska . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Nevada. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .New Hampshire . . . . . . . . . x xNew Jersey . . . . . . . . . . . . . x xNew Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .New Yorka . . . . . . . . . . . . . . . . . . . . . . . . . xNorth Carolina . . . . . . . . . . x xNorth Dakota. . . . . . . . . . . . x xOhio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Oklahoma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Oregon . . . . . . . . . . . . . . . . . x xPennsylvania. . . . . . . . . . . . x xRhode Island. . . . . . . . . . . . x xSouth Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

South Dakota . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Tennessee . . . . . . . . . . . . . . x xTexas . . . . . . . . . . . . . . . . . . x xUtah . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Vermont . . . . . . . . . . . . . . . . x xVirginia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Washington . . . . . . . . . . . . . x xWest Virginia . . . . . . . . . . . x xWisconsin . . . . . . . . . . . . . . . . . . . . . . . . . xWyoming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .aAlthough New york hag not passed community right-to-know regulations, in De-

cember 19S3, Governor Cuomo issued an executive order requiring the Depart.ment of Environmental Coneewation to inventory all toxic chemicals used,stored, or disposed of in the State.

SOURCES: National Conference of State Legislatures, “State Hazardous Materi-als Policy: Issues Raised by the Bhopal Incident,” State Leg/s/atlveReport, vol. 10, No. 1, January 19S5; personal communication withJan is Adklns (ad.), f7/ght-To-Know News (kWahington, DC: ThompsonPublishing Group, Oct. 22, 19B5); and Depatiment of OccupationalSafety, Health, and Social Security of AFL-CIO, list of State right-to-know laws.

[Page Omitted]

This page was originally printed on a gray background.The scanned version of the page is almost entirely black and is unusable.

It has been intentionally omitted.If a replacement page image of higher quality

becomes available, it will be posted within the copy of this report

found on one of the OTA websites.

Ch. 4—Hazardous Materials Transportation Regulations ● 189—

%0 F.R. 47321 -22, -Nov. 15, 1985.Wrvcy W. Shultz, Commissioner, City of New York, De partment of Environmenud 2%~, W co~u~cation by letter, Apr. 30,1986. MUM-

bera of the New York State Congreadonal Delegation have introduced bills in the99th Cmgtetw that wodd testdct the transportation of high-level radioiyxivematerials through densely populated metropolitan areas. See H.R. 1105, hwroduccd by Reptimentative Mario 13iaggi on Feb. 19, 1985, and H.R. 2938 intro.eked by Rcprewntarive Bill Green on July 9, 1985.

of these laws are not uniform, either in terms of theobligations placed on industry or in terms of thetypes of hazardous materials covered. States havealso taken different approaches to exemptions ac-cording to business size or quantities of material in-volved and the extent to which firms may protecttrade secrets. Increasing numbers of local govern-ments are also enacting their own right-to-knowstatutes.

The requirements of right-to-know laws most rele-vant to hazardous materials planning and emergencyresponse include providing public access to infor-mation on hazardous materials present in a local-ity or State, conducting inventories or surveys,establishing recordkeeping and exposure reportingsystems, and complying with container labeling reg-ulations for workplaces. As described earlier in thischapter, OSHA now requires chemical manufactur-ers and importers to prepare MSDSs for all hazard-ous materials produced or used. Some States andlocalities specifically require that copies of MSDSsbe made available to a State agency or local fire chiefas part of their community right-to--know programs.

Good Samaritan Laws.—Governmental entitiesand industry are concerned that they may be heldresponsible for emergency response activities thatresult in damages. Good Samaritan laws have beenenacted by at least 38 States to relieve the burdenof potential liability for persons who assist during

a hazardous materials transportation accident.136

While most of these laws exclude gross negligenceor willful misconduct, many States have limited thescope of liability protection in other ways. Thesedifferences are significant as they may affect whetherand how emergency assistance is provided in a givenState.

Some laws specify that emergency response per-sonnel who have received a certain level of train-ing are not relieved from liability. Consequently,members of specially trained hazardous materials re-sponse teams may not be covered by certain GoodSamaritan laws. In contrast, a number of statutesprovide immunity to individuals possessing certainqualifications such as training or education. Further-more, some laws require that unless assistance is re-quested by a State or local official, persons who pro-vide emergency assistance may not be extendedimmunity from liability. Additional differences inthese laws include the types of hazardous materialsaddressed (for instance, some are restricted to com-pressed gases) and whether compensation is provided

.to emergency responders.

‘%iee National Conference of State Legislatures, Hazardous Mate-rials Transportation—A Legislator’s Guide (Washington, DC: Febru-ary 1984), pp. 84-85 and app. F. Additional information was obtainedfrom a report on State Good Samaritan Statutes, prepared by LawrenceW. Bierlein for the Chemical Manufacturers Association, Sept. 30, 1985.


Regulatory Consistency

States and localities, responding to what they findto be limitations of the Federal regulatory program,have enacted their own laws and regulations. In-terstate shippers and carriers, reacting to what theyfeel are unreasonable burdens on interstate com-merce, have asked Federal courts to preempt someof these State and local requirements. DOT’s effortsto resolve interjurisdictional conflicts have been fo-cused on case-by-case advisory rulings that deter-mine whether State and local requirements are con-sistent with the HMTA and the hazardous materialstransportation regulations.

Preemption Under the HMTA

While Congress granted DOT a broad mandateto regulate the transportation of hazardous materi-als, a regulatory role for State and local governmentsis preserved by Section 112 of the HMTA, in defer-ence to their inherent powers to enact legislationto protect the health, safety, and general welfare ofthe public. However, the legislative history of Sec-tion 112, although limited, indicates that Congressintended to “preclude a multiplicity of State and lo-cal regulations and the potential for varying as wellas conflicting regulations in the area of hazardousmaterials transportation. ’’*37 Thus, while Section112(a) preempts State or local requirements that areinconsistent with the HMTA requirements or reg-ulations issued under it, Section 112(I3) provides thatan otherwise inconsistent State and local require-ment may not be preempted if DOT determines thatit affords an equal or greater level of protection tothe public than Federal requirements and does notunreasonably burden commerce. 138 The latter pro-vision was included because Congress also realizedthat certain exceptional circumstances might war-rant more stringent State or local regulation.

Although the HMTA explicitly authorizes DOTto issue preemption waivers under Section 112(b),a similar delegation of authority is not made fordeciding inconsistency questions under Section112(a). To provide a forum for resolving interjuris-dictional conflicts under the HMTA, DOT estab-lished procedures in 1976 allowing States, localities,

IJ7Uosc senate, Report No, 93-1192, 93d Cong., 2d sess., 1974, PP.37-38.

‘]849 U.S.C. 1811.

affected parties, and DOT itself to initiate an admin-istrative ruling process to determine whether Stateor local requirements are inconsistent. 139 This ad-ministrative process is advisory only and does notpreclude judicial review of a State or local require-ment. Independent of the DOT procedures, a Fed-eral court may be asked to decide whether a Stateor local requirement is inconsistent and thereforepreempted under the HMTA or is invalid under theCommerce Clause of the U.S. Constitution.

The standards applied by DOT in determiningif a State or local requirement is inconsistent arethe same as those used by the courts in preemptioncases:

● whether compliance with both the State or lo-cal requirement and the HMTA is possible (thedual compliance or direct conflict test), and

● the extent to which the State or local require-ment is an obstacle to the accomplishment andexecution of the act and regulations issued un-der it (the obstacle test).140

The latter test is applicable irrespective of whethera direct conflict exists. The steps that must be fol-lowed to obtain an inconsistency ruling are speci-fied in figure 4-8.

DOT has indicated that there are “strong policyreasons” for an administrative review; the processprovides an opportunity to conduct a broader in-quiry than one typically undertaken by a court, andit allows for diverse comments because notices arepublished in the Federal Register.141 A finding ofinconsistency under the DOT review process canalso serve as the basis for an application for a waiverof preemption.

A waiver of preemption can be granted for an in-consistent State or local requirement under theHMTA if DOT finds that it affords an equal orgreater level of protection to the public than Fed-

IN49 CFR 107.203 t. 107.211. The regulations were originally pub-lished on Sept. 9, 1976, 41 F.R. 38167. It should be noted that theU.S. Department of Transportation’s administrative process does notaddress Commerce Clause considerations; these are reviewed by thecourts.

140 49 CFR Ioi’.2o9(c).141U.S. Departments of Justice and of Transportation, Brief for the

Department of Transportation as Amicus Curiae, New Hampshire Mo-tor Transport Association v. Flynn, U.S. Court of Appeals for the FirstCircuit, No. 84-1226, November 1984, pp. 6-7.


Figure 4=8.-Procedures for Inconsistency Rulings

A. Application and comments B. Processing C. Ruling

An appeal must be fried with RSPAwithin 30 days of service of theruling.

SOURCE Office of Technology Assessment staff based on 49 Code of Federal fIegu/afiorrs 107203 to 107211

eral requirements and does not unreasonably bur- ●

den commerce. The factors considered by DOT inassessing whether interstate commerce is unduly bur-dened are:

●

● the extent to which increased costs and impair- ●

ment of efficiency result from the State or lo-cal requirement;

NOTE RSPA = Research and Speaal Programs Admmlstratton, HMTA = Hazardous Materials Transporfatlon Act

whether the State or local requirement has arational basis;

whether the State or local requirement achievesits stated goals; and

whether there is a need for uniformity withregard to the subject concerned, and if so,whether the State or local requirement com-


petes or conflicts with those of other States orlocal entities.142

These criteria have been drawn from Supreme Courtdecisions regarding the validity of various Statetransportation safety requirements.143 The proce-dures that have been developed for granting a waiverof preemption are presented in figure 4-9. Applica-tions for waivers of preemption are considered byDOT only if the State or locality acknowledges thatthe requirement in question is inconsistent, DOTrules that it is inconsistent, or a court decides thatthe requirement is inconsistent with the HMTA.l44

In lieu of requesting a waiver of preemption,State and local entities have the option of petition-ing DOT to establish, amend, or repeal a Federalregulation. The steps involved in undertaking suchan action are also set forth in 49 CFR.145

DOT Policy Guidance for Stateand Local Requirements

When DOT issued routing regulations for radio-active materials, Docket HM-164, an appendix wasalso published containing DOT policy and adviceto State and local governments regarding their au-thority over motor carriers in relation to HM-164.State and local rules addressed by the appendix in-clude those that effectively redirect or otherwise sig-nificantly restrict or delay highway movements ofhazardous materials, and that apply because of thehazardous nature of the cargo. Permits, fees, andsimilar requirements are included if they have sucheffects. The definition excludes State or local emer-gency actions and traffic controls that are not basedon the nature of the cargo, such as truck routesbased on vehicles’ weight or size.l46

DOT explicitly notes that a State routing rule isinconsistent if it prohibits transportation by high-

142$) CFR l w . i l l ( b ) .

14141 F.R 38168, Sept. 9, 1976.14449 CFR Ioi’.2I9(c).14549 CFR IMJ 1. petitions m establish, amend, or repeal a regula-

tion must: 1) set forth the text or substance of the regulation or amend-ment proposed, 2) explain the interest of the petitioner in the actionrequested, and 3) contain any information and arguments availableto the petitioner to support the action sought.

I*Note that the appendix to HM- 164 is not a regulation and wasintended to guide State and local governments contemplating rulemak-ing action as to the likelihood of such actions being deemed inconsist-ent. 49 F.R. 46634, Nov. 27, 1984.

way between two points without providing an alter-nate route or if it does not meet three criteria:

. it must be established by a State routing agency,

. it must be based on a comparative risk assess-ment at least as sensitive as the one outlinedin DOT guidelines, and

. it must be based on solicitation and substan-tive consideration of views from affected Statesand local jurisdictions.

Local governments may regulate shipments of radio-active materials only if the routes they choose areconsistent with those designated by Federal andState authorities. New York City, concerned aboutthe safety of through shipments of spent nuclear fuel,has opposed the regulatory restrictions placed onmunicipalities by HM-164. This case is described inbox 4B.

In addition, the appendix provides guidance onrelated State and local rules. It states that a require-ment is inconsistent with HM-164 if it:

●

●

●

●

●

●

●

conflicts with the physical security requirementsof NRC or DOT requirements;requires additional or special personnel, equip-ment, or escorts;requires additional or different shipping papers,placards, or other warning devices;requires filing advance route plans containinginformation that is specific to individualshipments;requires prenotification;requires accident or incident reporting otherthan that needed for emergency assistance; orunnecessarily delays transport.

DOT Inconsistency Rulings

As of May 1986, 16 inconsistency rulings havebeen issued by DOT. The inconsistency rulings arelengthy legal analyses that address requirements es-tablished by States, local jurisdictions, and individ-ual bridge and highway authorities. (Appendix Bcontains a description of each case and a summaryof the inconsistency ruling decisions for the majortypes of requirements examined.) The scope of therequirements reviewed in these decisions ranges fromregulations governing a particular aspect of hazard-ous materials transportation, such as shipping pa-pers, to comprehensive regulatory programs. Most


A. Application and comments

Applkations must be submitted to RSPAby States or political subdivisions re uest-

Ling a nonpreem tion determination. p//-1’Cafiotr must /rrc Ude:

. the text of the State/kcal requirementand the Federal regutatfon to be com ared;

r. an explanation as to why the appi cantbetisves that tts requirement affords anequal or greater level of protection thanthe Federal regulation and does not un-reasonably burden commerce;

. the steps being taken to administer andenforce the requirement; and

● an a@rasa a&rwwb@rrarrt by the @c?ntrhstlfs r’L@arrr6, is Im2Mswrt, Ora copyof a cowl wkv or so inconsistency ruling is.srmd by RSPA fvndhg ttre rwiment to fm incmir&?rr! with M(TA NassacWdrqwlatims.

I

Figure 4=9.-Procedures for Nonpreemption

Applicant must send a copy of the

Ja plkation to all affected parties.

otifkation that comments may besubmitted to RSPA within 45 daysmust also be provided. If plkant

2Wevea that noti ing all ectecflaparties is Impract ble, notification of

a r-~ and Practkabkr list ofparties may be undertaken; RSPAmust be provfded with a descriptionof the parties not notified.RSPA reserves the d ht to determine

ithat the number of a acted parties knot Impractkabts; that additional partiesmust be notified; or that nofke shouldbe published in the Fetid R?gister.

Ih (

RSPA ma notify other affected par-{ties to a ord those persons an oppor.

tunity to submit comments.

All oommants subrnftted to RSPAmust alao be sent to the appfkant.Cornmsnters must certffy to RSPA\hat th\s requirement has bean fubfilfed. RSPA may notify other person$partkipating in the proceeding ofthese comments and provide an op-portunity to respond.

B. Processing

RSPA may Initiate an In

persons retevant to an appUcsflon(*d P@* applkant w&h M oppor-

&fun a

To the extent3

Sfbte; elloh Sppltoa”tfon wiff be ad on by RSPA In amanner consistent wltft W disposi-tion of previous nonprWn@OO deter-rnlnatkrn applications.Applicants and afbofad pa#$a willbe notffied by RSPA Man afl sub-stantive information has Wan re-ceived.

Determinations

C. Ruling

katbtts WISy be tid b$%?R A if: there b IRSIff&MtIt informs”tfon on whkh to baas* deMMns-tforr, addtttonal in &~*Mquested from anSubmitted, or an Ipfln$.dtlss notcomply with nOtlffoa <~r$rnents.

● WMhJr m Stata of pontkal S4fM”

is a mad I&W

. - w@rwtsor @mar Stafas w @t-

1

M appsat must ba ftfed wftft R$PAw~n $9 days of eervloe of the

.

NOTE RSPA = Research and Special Programs Admmistration; HMTA = Hazardous Materials Transpotiatlon Act

SOURCE Off Ice of Technology Assessment staff based on 49 Code of federal Ilegulafkms 107215 to 107225

of the requirements examined by DOT applied ex-clusively to highway transport; however, in threecases (Michigan; Vermont; and Covington, Ken-tucky) rail and water modes were also affected.

The decisions reached by DOT in each case werebased on the application of the dual compliance andobstacle tests. The dual compliance test is a straight-forward determination of whether compliance withboth the State or local requirement and the appli-

cable Federal requirement can be achieved. The ob-stacle test is somewhat more complex and involvesan examination of the:

, , . full purposes and objectives of Congress inenacting the HMTA and the manner and extentto which those purposes and objectives have beencarried out through MTB’s regulatory program. 147

‘4744 F.R. 75568, Dec. 20, 1979

.


The purposes and objectives that have been identi-fied by DOT include protecting the Nation ade-quately against the risks to life and property inher-ent in the transportation of hazardous materials, andprecluding a multiplicity of State and local regula-tions and the potential for varying and conflictingregulations. 148 Critics of DOT argue that safetyand uniformity should not be given equal weightin the decision process. It is their belief that Con-gress was primarily concerned with safety; therefore,State and local requirements that vary from Fed-eral ones but provide a greater degree of protectionshould be allowed.149

Generally, consistent non-Federal requirementsare those DOT considers appropriate areas for Stateand local regulation and for which comparable Fed-eral requirements have not been promulgated. Con-sistent requirements pertain to traffic control andsafety hazards peculiar to a local area and includeimmediate notification of local officials when acci-dents occur, the use of headlights and vehicle sepa-ration distances, vehicle inspections, the impositionof penalties associated with valid local regulations,and certain types of communication equipment.When routing regulations increase safety and areenacted in consultation with affected neighboringjurisdictions, they are considered to be consistentrequirements. In addition, DOT has indicated inthese rulings that permit requirements as such arenot inconsistent; it is the impact of such a require-ment, such as causing shipment delays, that deter-mines its validity. However, all of the permit require-ments examined by DOT to date have been foundto be inconsistent. *50

Other inconsistent State and local requirementspertain to areas already subject to Federal regula-tion or result in traffic diversions and increased tran-sit times. These requirements encompass packagingregulations; hazard communication systems, includ-

‘4847 F.R. 1231, Jan. 11, 1982.149See “Defendants Memorandum of Law in Opposition to Plaintiffs

Motion for Summary Judgment,” National Paint and Coatings Asso-ciation Znc. v. City of New York, Apr. 11, 1985, submitted to the U.S.District Court for the Eastern District of New York.

ls~hese decisions, inconsistency rulings 2, 8, and 10 to 16~ are de-

scribed in app. B. In inconsistency ruling 3, while DOT found thata Boston regulation requiring transporters to carry permits in a vehi-cle cab was consistent, a ruling on the validity of the permitting sys-tem itself was not issued.

ing hazard classification; shipping papers, marking,labeling, and placarding requirements; insurancerequirements; prenotification; written accident re-ports; permits as a precondition to transport; andthe use of additional escorts or equipment. In onecase, a $1,000 fee, assessed per shipment of certainradioactive materials, was also determined to be in-consistent.151 Furthermore, transportation bans orother routing restrictions enacted without evalua-tion of the safety impacts and consultation with af-fected communities were also found to be incon-sistent.

The Role of the Courts

Aside from New York’s legal challenge of HM-164, other Federal court decisions have been issuedon the validity of specific State and local laws andregulations. 152 Most of the lawsuits have been filedby national or State trucking associations. In fourcases, the lawsuits pertain to non-Federal require-ments that are also the subjects of DOT inconsis-tency rulings.153 While a DOT inconsistency rulingdoes not preclude judicial review, the courts havegiven weight to the rulings in their decisions. ’54Preemption provisions of other Federal laws are alsoconsidered by the courts as appropriate; for exam-ple, the Atomic Energy Act is relevant to cases in-volving shipments of radioactive materials. A brief

151me u-s. Depa~ment of Transwrtation (DOT) asserted that this

requirement, established by Vermont, was inconsistent because it wasdiscriminatory, diverted shipments, and replicated Federal emergencyresponse efforts. Monies collected were to be used for a monitoring(response) team. See inconsistency ruling 15,49 F.R. 46660, Nov. 27,1984. As this report went to press, DOT issued inconsistency ruling17 concerning an Illinois law that assesses a $1,000 fee for spent nu-clear tiel shipments. DOT found the Illinois fee to be consistent withthe HMTA. 51 F.R. 20926, June 9, 1986.

152City of New York v. Ritter Transportation Inc., 515 F. Supp. 663(1981); National Tank Truck Carriers, Inc. v. City of New York, 677F. 2d 559 (1983); New Hampshire Motor Transport Association v.Flynn, 751 F. 2d 43 (1984); and American Trucking Association, Inc.v. Larson, 683 F. 2d 787 (1982). It should be noted that the Larsoncase upheld a Pennsylvania statute requiring periodic inspections ofall motor carrier vehicles, whether or not they are used to transporthazardous materials and are registered in the State.held a Pennsylvania statute requiring periodic inspections of all motorcarrier vehicles, whether or not they are used to transport hazardousmaterials and are registered in the State.

15~hese cases include inconsistency rulings 1,2,3, and 5. App. B,which contains of a summary of inconsistency rulings, also describesrelated lawsuits,

154See for example, New Hampshire Motor Transport Associationv. Flynn, 751 F. 2d 43 (1984) and National Tank Truck Carriers, Inc.v. Burke. 535 F. Supp, 509 (1982).


overview of relevant constitutional provisions is pre-sented in box 4C.

Federal court decisions issued to date have gen-erally been in agreement with DOT’s inconsistencyrulings. For example, the courts have struck downState and local requirements for written accidentreports, vehicle equipment, vehicle markings andplacards, container testing, and statewide curfews,while upholding requirements for local inspections,immediate accident reporting, operational require-ments such as the use of headlights, and localcurfews.

The courts have reviewed the validity of permitand license requirements established by New Hamp-shire, New York City, and Rhode Island. A 1983New Hampshire law imposing license and fee re-quirements on vehicles transporting hazardous ma-terials was upheld by the U.S. Court of Appeals forthe First Circuit; these requirements provided trans-porters with the option of obtaining an annual orsingle-trip license. 155 A New York City regulation

‘55New Hampshire Motor Transport Association v. Flynn, 751 F.2d 43 (1984), This opinion reversed the decision of the lower court.

Box 4C.—Constitutional Considerations

State and local entities traditionally exercise their police powers to protect public health, safety, and generalwelfare. On the other hand, the Federal Government is endowed with broad regulatory powers by the Supremacyand Commerce Clauses of the U.S. Constitution. The courts have established basic guidelines to be used indeciding whether State or local requirements are preempted by Federal law or are invalid because they undulyburden interstate commerce. These guidelines or tests are applicable to &es involving the transportation ofhazardous materials.

The ability of the Federal Government to preempt State laws is derived from the Supremacy Clause, underwhich State laws that conflict with Federal statutes are nullified.1 Existing case law on the subject of Federalpreemption identifies four major factors considered by the courts in reviewing the validity of State or local regu-latory actions: whether there is an explicit congressional statement in the applicable Federal statute; whetherpreemption can be implied (based on the legislative history, the extent to which there is Federal occupationof the subject area, and whether there is a need for national uniformity); whether compliance with both Federaland State law is possible; and whether the State law serves as an obstacle to accomplishing the purposes andobjectives of Congress.2 . . .

In those instances where Congress has not preempted non-Federal action, State laws can still be invalidatedif they are found to violate the Commerce Clause; this constitutional provision authorizes Congress to "regu-late Commerce with foreign Nations, and among the several States, and with Indian Tribes.”3 While this statement does not explicitly limit State interference with interstate commerce, the “negative implication” of the Commerce Clause has been interpreted to mean that in the absence of congressional action, States may noterect barriers to the free flow of interstate commerce.4

There are two tests used by the courts in evaluating alleged violations of the Commerce Clause. First, aState or local requirement must be nondiscriminatory in order for it to be valid. An example of a discriminatoryrequirement is one that prohibits out-of-State shipments. Second, the courts must determine if interstate commerceis unduly burdened by balancing the impact of a non-Federal requirement on interstate commerce against thebenefits it provides.

IThe Supremacy Clause asserts that: “This Constitution and the Laws of the United Stat& Whkh dd be made in Pursuance thereof, and all treatiesmade, or which shall be made under the authority of the United States, shail & the supreme law of the land; and tha - in evtmy State shaII be boundthereby, anything in the Constitution of Laws of any State to the contrary nor withstanding.” U.S. Constitution, article VI, clawe 2.

‘For additional information on Federal preemption see, L.M. Trosten and M.R. Ancarrow, “Federal-State”Local Relationships in Tranapordng RadioactWe.Materials: Rules of the Nuclear Road,” Kentucky 11.aw~ournal, vol. 68, No.2, 1979-80, p. 251; and Christopher Baum, “BanningthcTranspomWm W&t&&Waste: A Permissible Exercise of the States’ Police Power?” Fordham Law Review, vol. 52, March 19S4, p. 663.

W.S. Constitution, article I, sec. 8, clauae 3,4Laurence Tribe, American Constitutional Law (?vlineola, NY: The Foundation Press, Inc., 1978), p. 320.$Trosten and Ancarrow, op. cit.; Baum, op. cit.


requiring tank truck carriers of hazardous gases toobtain permits was also upheld.156 The New YorkCity permits were obtainable by telephone. On theother hand, Rhode Island permit regulations fortransporters of liquefied natural gas or liquefied pe-troleum gas were found to be inconsistent by theU.S. District Court and the Court of Appeals.157

In this case, the court found that the regulations,which required transporters to obtain a permit notless than 4 hours before or more than 2 weeks priorto each shipment, caused unnecessary delays andwere inconsistent with the HMTA. DOT also con-cluded that the Rhode Island permit requirementswere inconsistent.

Local routing restrictions have been addressed intwo lawsuits. The New York City permit regulationsfor transporters of hazardous gases also requiredtransporters who did not have pick-ups or deliver-ies in the city to use an established alternate routearound it. Shipments into the city had to conformto specified routes and times established by the lo-cal authorities. The court found that the city regu-lations promoted safety and did not cause unnec-

essary delays, and that the route around the citywas a “practicable alternative. ” In Boston, restric-

tions on the use of city streets were challenged bothin Federal court and through DOT’s inconsistencyruling process. After a lengthy review process, DOTdecided that it could not reach a conclusion, be-cause even though the routing restrictions appearedto enhance public safety, consultation with affectedjurisdictions had been limited.158 A final decisionby the court has not yet been reached.

State restrictions imposed on the transportationof radioactive materials have also been the subjectsof lawsuits. Laws prohibiting interstate shipmentsof radioactive wastes but allowing intrastate trans-portation were found to be unconstitutional. In onecase, Illinois attempted to prevent shipments of spentnuclear fuel into the State for storage at a GeneralElectric facility in Morris, Illinois. Another case in-volved a Washington State statute prohibiting ship-ments of low-level radioactive wastes destined fora disposal site in Richmond, Washington, from en-tering the State.159

‘%Both the District Court and the U.S. Court of Appeals for theSecond Circuit upheld the New York City requirement. See Ciry ofNew York v. Ritter Transportation Inc., 515 F. Supp. 663 (1981); andNational Tank Truck Carriers, Inc. v. City of New York, 677 F. 2d270 (1982).

~s7National Tank Truck Carriers, Inc. V. Burke, 535 F. SUPP. 509(1982) and National Tank Truck Carriers, Inc. v. Burke, 698 F, 2d 559(1983).

‘m47 F.R. 18457, Apr. 29, 1982. It should be noted that the U.S.Department of Transportation also cited a concern about the validityof the data used for Boston’s risk determination, but concluded thatfurther refinement of the data would not have had a substantial effecton the outcome.

IWp_P1e *f State Ofll]inois v. General Electric CO., 683 F. Zd 206

(1982); and Washington Stare Building and Construction Trades, AFL-CIO v. Spellman, 684 F. 2d 627 (1982).

CONCLUSIONS AND POLICY OPTIONS

A driving force behind enactment of the Hazard-ous Materials Act of 1975 was the improvement ofregulatory and enforcement activities and the con-solidation of authority within the Department ofTransportation. During the past 10 years, respon-sibility for issuing most hazardous materials trans-portation regulations, except for bulk marine ship-ments, has been shifted to one entity, RSPA.However, the modal administrations continue to beresponsible for safety regulations, including the de-velopment of some hazardous materials regulationsapplicable to each mode. Inspection and enforce-ment authority is shared by RSPA and the modaladministrations. Other Federal agencies also have

jurisdiction over certain types of hazardous materi-als and worker safety.

Moreover, the roles played by States and locali-ties and by international organizations in the regu-lation of hazardous materials transportation havegrown considerably since the HMTA was passed.The act provided the Secretary of Transportationwith broad authority to promulgate a wide rangeof requirements. However, DOT has made severaldecisions about how to exercise its authority thathave limited the application of its regulations,motivating State and local governments to act wherethey saw a need.


First, DOT has chosen not to apply the hazard-ous materials regulations to most intrastate high-way transport. Thus, for example, hazardous ma-terials released from a truck owned by a companyoperating wholly intrastate, need not be reportedto DOT (see chapter 2) and second- or third-handcargo tankers that no longer meet Federal require-ments may be used in some States (see chapter 3).On the other hand, some jurisdictions have estab-lished container regulations that are more stringentthan Federal requirements. While States acceptingFederal funds to support their enforcement programsare required to apply the hazardous materials regu-lations to both intrastate and interstate carriers, thisdoes not ensure that the reporting requirements andcontainer regulations will be applied.

Second, DOT has not exercised its authority toestablish a registration program for shippers and car-riers. This has meant that it does not have vital dataabout the extent of the group it regulates and thatinformation useful to State and local officials is notavailable.

The legislative history of the HMTA indicates thatCongress intended to preclude a multiplicity of Stateand local regulations and the potential for varyingand conflicting regulations. Most State and localgovernments understand and agree with the needfor uniform regulations, especially in areas relatedto containers and hazard communication. However,they believe that the steps they have taken are nec-essary to provide adequate safety in light of the risksposed by the transportation of hazardous materi-als. State programs, like their Federal counter-parts, are now characterized by a multiplicity anddiversity of activities and areas of jurisdiction.While Federal grant programs have provided val-uable assistance to States and have encouragedadoption and uniform enforcement of Federal reg-ulations, great variation among State laws and reg-ulations persists.

Local governments usually do not directly bene-fit from Federal grant programs to the States, Con-sequently, they must rely on alternate sources offunding, such as licensing or permitting fees. Somejurisdictions have set fee levels to cover the admin-istrative costs associated with registration, permit,or licensing programs, while others use fees to sup-port inspection and enforcement or emergency re-sponse activities.

As most State and local requirements apply tohighway shipments, the trucking industry has beenaffected most heavily. Interstate shippers and car-riers argue that compliance with differing laws andregulations is confusing, time-consuming, and ex-pensive. The costs include payment of registration,permit, and licensing fees which range from severaldollars up to $1,000 per shipment, as well as opera-tional expenses, such as driver costs, and expensesincurred by special staff to track changing require-ments. Carriers have also found that certain typesof requirements can cause delays in transit. More-over, shipments may be diverted around jurisdic-tions that have imposed special requirements, shift-ing the risks to other States and communities.

There have been no comprehensive efforts toresolve existing interjurisdictional differences. Re-solving questions of inconsistency between Federal,State, and local regulations, a task traditionally leftto the courts, has been the focus of an advisory ad-ministrative review process established by DOT in1976. In 16 inconsistency rulings, DOT has indi-cated that it believes State and local activity is lim-ited to traffic control and narrow regulations thateliminate or reduce safety hazards peculiar to a lo-cal area. In addition, even when there is a uniquelocal safety problem, consideration of the impactsof a requirement on other jurisdictions must betaken into account. DOT has also indicated thatit is necessary to look at the impacts of State or lo-cal permit requirements, such as shipment delays,to determine their validity. Several cases reviewedby DOT have also been the subjects of lawsuits. Al-though case-by-case reviews by DOT and thecourts, a time-consuming and costly effort, pro-vide criteria for assessing the validity of certaintypes of laws and regulations, OTA believes thatthey will not prevent continued adoption of dif-fering State and local requirements.

Registration, licensing, permitting, and notifica-tion requirements are important to States and lo-calities because they provide valuable data and rev-enue. However, industry objects to both the fees thatare assessed and the delays and diversions of ship-ments. Policy decisions must address both the finan-cial and informational needs of State and local gov-ernments and ease the burden faced by interstateshippers and carriers. Thus, Congress might re-quire development of national guidelines for State


and local information-collection programs inthree areas: 1) to determine the number and loca-tion of hazardous materials shippers and carriers(registration or inventory), 2) to obtain assurancesof fitness from shippers and carriers (licensing orpermitting), and 3) to obtain information on thetypes of hazardous materials passing through orbeing produced in a community or region (notifi-cation). A consensus approach involving Federal,State, local, and industry representatives could beused to formulate the guidelines. A standard formfor requesting information could be created, sire.ilar to the uniform hazardous waste manifest de-veloped jointly by DOT and EPA. If detailed com-modity flow data are needed, requirements thatfocus on information already available, such as Ma-terial Safety Data Sheets, should be emphasized.Special consideration should also be given to theinformation needs of bridge and tunnel authorities;this might include prenotification of certain highhazard shipments. In those States where the guide-lines are adopted, localities may be required to ob-tain the information they need from their Stateagencies. In addition, reciprocity (including infor-mation sharing) between States in a given regioncould be encouraged. Assuming that alternativesources of financial support are provided for enforce-ment and emergency response (see discussion below),States and localities could be prohibited from assess-ing fees or required to limit fees to amounts suffi-cient to cover program administration costs. To as-sist interstate carriers and shippers, an annualcompendium of State and local requirements andcontacts, jointly developed by industry, DOT, andthe States, could be published. Several public andprivate organizations have already compiled someof this information.

Carrier associations, insurance industry repre-sentatives, and State motor vehicle administratorsand enforcement personnel have voiced strongsupport for a national truck driver’s license re-quiring special training. Congress could author.ize the development of such a license with specialcertification requirements for all hazardous ma-terials, including gasoline. Driver certificationcould be linked to specific types of vehicles. Prereq-uisites for a license should include training and aclean record. Uniform license requirements andtraining standards could be developed by DOT, but

States would be responsible for issuing licenses andadministering the training program. State license feescould be set to cover program costs. California hasalready developed such a program. Another modelis a program created by the European CommonMarket countries, which requires a hazardous ma-terials driver’s license but allows each country to passits own implementing legislation.

In addition to the problem of differing licensing,registration, and permit requirements, the broaderissue of varying State hazardous materials laws andregulations should also be addressed. Complete in-formation about the scope of existing State laws andregulations pertaining to the transportation of haz-ardous materials is not presently available. Whilemany States have adopted 49 CFR, some have ex-cluded certain types or quantities of hazardous ma-terials. Others have excluded private motor carriersand intrastate highway shipments are not regulatedconsistently, An assessment of State hazardous ma-terials laws and regulations to determine whetherthey are more or less stringent than Federal regu-lations could be required. BMCS has already be-gun, at congressional request, a 5-year review ofState motor carrier laws to determine those that aremore or less stringent than Federal requirements inthe areas of driver qualifications and training, hoursof service, and equipment maintenance. 160 As partof the process, State laws will be reviewed by a panelconvened by the Secretary of Transportation. 161

State laws that are less stringent than their Federalcounterparts will be preempted; a law that is morestringent will not be preempted unless there is nosafety benefit associated with it, the law is not com-patible with Federal regulations, or enforcement ofit causes an undue burden on interstate commerce.Another study of State motor carrier laws relatedto finances is being conducted by the National Gov-ernors’ Association for the Federal Highway Admin-istration. Congress could extend these ongoingefforts to encompass State hazardous materials reg-ulations or initiate a separate review.

‘fi’~his review is authorized bv the Motor Carrier Safety Act of1984, Public Law 98-554, 98 Stat. 2829, 2835-2838. State guidelines forcompiling, analyzlng, and submitting their law~; regulations; and otherinformation were published by the Bureau of Lfott)r Carrier Safety’ onJan. 10, 1985 (50 F.R. 1243).

“’Section 209 of the Motor (Darrlcr Safety Act of 198+, 98 Stat.2838.2839.

.


In addition, Congress could consider requiringthe expansion of those parts of 49 CFR adminis-tered solely by RSPA, such as the container regu-lations, to cover all intrastate highway transpor-tation. Intrastate shippers and carriers of hazardouswastes and substances and flammable cryogenics arealready subject to Federal regulation. Such a require-ment would make RSPA regulations consistent withMCSAP requirements. If this approach is adopted,

the preemption criteria noted above for existing laws

and regulations should also apply to new require-ments . Thus , in t ras ta te regula t ions tha t increasesafety and do not unduly burden interstate com-

merce would be allowed. Congress might also wishto require DOT to reduce emphasis on detailedinconsistency rulings, which occur after a regu-lation is in place, and to provide technical and pol-icy assistance to States or communities during theregulation-setting process.

State and local hazardous materials enforcementactivities, particularly for the highway mode, have

become increasingly important during the past dec-ade . Whi le SHMED and MCSAP have providedStates with grant monies to develop and implement

enforcement programs, SHMED is ending this year

and MCSAP funds must be used to support all mo-

tor carrier enforcement activities, not just hazard-

ous materials. Moreover, financial support for emer-

gency response t ra in ing o f loca l f i re and pol i cedepartment personnel (described in chapter 5) is also

a major concern of State and local governments.

One funding mechanism that State and local gov-ernments have tapped is licensing, registration, and

permit fees. States and municipalities are unlikelyto discontinue such fees unless alternative funding

sources are provided, Thus, Congress could con-sider providing additional funds to States and lo-calities for enforcement and emergency responseprograms. Funding for the SHMED program could

be extended and made available to all States with

a requirement that State hazardous materials en-forcement teams be developed. Special provisions

could also be made to ensure that major metropoli-tan areas that undertake inspections be allocated

a portion of the grant monies. A dedicated Federal

fund to support emergency response activities could

also be established.

Routing is an extremely important accident pre-

vention tool available to State and local govern-

ments. Developing routing schemes that enhance

overall regional safety is a difficult process, althoughthe Portland, Oregon, experience demonstrates thatit is possible. The existing BMCS routing regula-tion for nonradioactive hazardous materials couldbe amended to provide more explicit guidance tocommunities. States designating alternate routesunder HM-164 are already required to followDOT guidelines for routing shipments of radio-active materials; this requirement, which includesa risk assessment and interjurisdictional consul-tation, could be extended to all hazardous mate-rials. The development of criteria for routingshipments of radioactive and other hazardous ma-terials by rail and water might also be considered.DOT technical assistance to States or communi-ties for applying the risk assessment criteria andworking through the route selection process couldbe extremely useful. For example, the availability

of computer software packages capable of compar-

ing the risks associated with alternative routes, mightbe increased. One example is a computerized riskassessment model developed by Oak Ridge National

Laboratory for DOD (see chapter 2). In addition,

a compendium of routes designated by State andlocal governments might be published for motor

carriers.

Finally, Congress could take steps to promote im-

proved coordination within DOT, between Federalagencies, and between the Federal Government and

State and local governments. A standing coordi-nating committee could be established with rep-resentatives from each DOT modal administra-tion; RSPA; other Federal agencies such as EPA,NRC, DOE, and FEMA; State and local govern.ments; and industry. This committee might be es-

tablished within the framework of the National Re-

sponse Team. It could be required to meet regularlywith an agenda that includes:

●

●

●

●

●

defining missions and roles of Federal agenciesin the transportation of hazardous materials,coordinating Federal training programs,developing national guidelines as describedabove,setting a regulatory agenda for intra-agency andinteragency issues, andcoordinating common activities such as datacollection and enforcement.


Subgroups could be formed to address areas of par- tainers. NRC, DOE, and DOT could be encouragedticular concern. More specifically, DOT and EPA to develop a joint program to involve States, localcould be directed to develop a joint program to edu- governments, and Indian tribes in the decision-cate small businesses that generate and transport making process for Nuclear Waste Policy Act ship-hazardous wastes about DOT transportation re- ments and procedures.quirements and the compatibility of wastes and con-

chapter 4 hazardous materials transportation regulations

Documents