Frazer C. Hilder Attorney, Office of Chief Counsel

1. HazardousMaterialsPreemption Frazer C. HilderAttorney, Office of Chief Counsel Pipeline and Hazardous Materials Safety Administration U.S. Department of TransportationJanuary 2010

2. Introduction More than a century of Federal hazmat regulation Explosives and Combustibles Act of 1908

3. Definition Preempt – to take precedence over, supplant Preemption – displacement, supersedence

4. Federal Preemption Supremacy Clause This Constitution, and the Laws of the United States, which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land

5. FederalPreemption Two doctrines “Field” preemption “Conflict” preemption

6. Purpose Uniformity promotes safety Other incentives besides preemption • MCSAP grants to States which adopt and enforce motor carrier requirements consistent with FMCSR and HMR. 49 CFR parts 350, 355 • State inspector program for rail transportation. 49 CFR part 212

7. Federal Hazmat Law 49 U.S.C. 5125 - Standards Dual Compliance Obstacle Five subject matters Highway routing State fees

8. Authority Under Another U.S. Law Other Federal Agencies DHS/TSA EPA OSHA ATF NRC

9. Waiver of Preemption DOT may waive preemption if it finds that the non-Federal State, local or Indian tribe requirement • Provides the public with as equal or greater level of protection • Does not create an unreasonable burden on commerce

10. Other Statutes Highway - 49 U.S.C. 31141 State law that --has the same effect, may be enforced --is less stringent may not be enforced --is more stringent, may be enforced unless it (a) has no safety benefit, (b) is incompatible with a DOT regulation, or (c) causes an unreasonable burden on commerce.

11. Other Statutes Rail – 49 U.S.C. 20106 Laws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable. When DOT has issued a regulation, or order on the subject matter, a State may have an additional or more stringent law, requirement, or order that (a) addresses a local safety hazard, (b) is not incompatible with a Federal law, regulation, or order, and (c) does not unreasonably burden commerce.

12. Reaching a Decision Defense to a citation Lawsuit in court DOT administrative determination • any “directly affected” person may apply

13. Administrative Process 49 CFR part 107, subpart C. • Application • Federal Register notice • Public comments • Determination • Petition for reconsideration/judicial review

14. Recent Cases • Routing of HM shipments • Package marking • Hazardous waste • Periodic vehicle inspections

15. Applicability of Hazmat Law & HMR Transportation In Commerce Persons

16. Transportation “Transports” or “transportation” means the movement of property and loading, unloading, or storage incidental to the movement. 49 U.S.C. 5102(13); 49 CFR 171.1

17. Commerce “Commerce” means trade or transportation in the jurisdiction of the United States— • between a place in a State and a place outside of the State; • that affects trade or transportation between a place in a State and a place outside of the State; or • on a United States-registered aircraft. 49 U.S.C. 5102(1)

18. Persons Individual, corporation, company, association, firm, partnership, society, joint stock company. Government, Indian tribe, or authority that -offers hazardous material for transportation in commerce; -transports hazardous material to support a commercial enterprise; or -designs, manufactures, maintains, repairs, tests, etc. a packaging or component for hazmat 49 U.S.C. 5102(9)

19. Government Authorities • United States Postal Service has its own law, regulations, and civil penalty authority. • Civil and criminal penalties do not apply to a department, agency, or instrumentality of the Government. • Regulations apply to government contractors. • Exception from HMR for certain U.S. governmental activities (DOD, DOE, ATF).

20. Enforcement Criminal prosecutions • Investigation by IG and/or FBI • Prosecution by Dept. of Justice • Fine up to $250,000/$500,000 • Imprisonment up to 5 years – or 10 years when the violation involves a release of hazmat resulting in death or bodily injury.

21. Enforcement Civil penalty process • Federal Aviation Administration • Federal Motor Carrier Safety Administration • Federal Railroad Administration • Pipeline and Hazardous Materials Safety Administration • United States Coast Guard

22. Enforcement Civil penalties • $55,000 maximum, or $110,000 when a violation results in death, serious illness, severe injury, or substantial destruction of property. • $275 minimum, except $495 for a violation related to training.

23. Enforcement Other actions • Compliance Order • Safety Advisory • Suspension or termination of special permit or approval

24. Enforcement PHMSA procedures • Inspection (usually unannounced) • Exit briefing – opportunity to respond • Violations • Warning letter • Ticket • Enforcement case

25. Enforcement Enforcement cases • Notice of probable violation • Response • Pay proposed penalty • Informal conference • Formal hearing • Attempt to reach compromise • Order • Appeal

26. Enforcement Some areas of focus • Batteries – new and recycled • Aerosols – green gas • Nurse tanks • Package testing • Systems Integrity Safety Program (SISP)

27. Information • Hazardous Materials Safety Program Website http://www.phmsa.dot.gov/hazmat • Hazardous Materials Information Center 1-800-467-4922 infocntr@dot.gov • Office of Chief Counsel – 1-202-466-4400 http://www.phmsa.dot.gov/about/org/chief-counsel phmsachiefcounsel@dot.gov

28. Conclusion Questions?