Bulktransporter 1035 Phmsa
Bulktransporter 1035 Phmsa
Bulktransporter 1035 Phmsa
Bulktransporter 1035 Phmsa
Bulktransporter 1035 Phmsa

PHMSA rules state, local regs cover hazmat transfer from tankcars

Nov. 18, 2015
The Pipeline and Hazardous Materials Safety Administration (PHMSA) formally issued a final ruling on November 16 in response to a preemption petition regarding the applicability of the Hazardous Materials Regulations (HMRs) to the unloading of hazardous materials from tankcars by the consignee and on a consignee’s on-site storage of hazardous materials following delivery and after a driver’s departure. This is one of several hazardous materials preemption petitions currently under review by PHMSA.

The Pipeline and Hazardous Materials Safety Administration (PHMSA) formally issued a final ruling on November 16 in response to a preemption petition regarding the applicability of the Hazardous Materials Regulations (HMRs) to the unloading of hazardous materials from tankcars by the consignee and on a consignee’s on-site storage of hazardous materials following delivery and after a driver’s departure. This is one of several hazardous materials preemption petitions currently under review by PHMSA.

PHMSA found that neither of these activities take place “in transportation,” and therefore are not regulated under the HMRs.  Because neither activity takes place in transportation, the California Health & Safety Code and the Los Angeles County Code were not preempted, according to the PHMSA. 

PHMSA’s ruling means that other federal agencies, particularly the Environmental Protection Agency and the Occupational Safety and Health Administration, may also impose regulations on the unloading of cargo tanks so long as consignees are able to follow any regulations issued without having to break any of the HMRs, according to Boyd Stephenson, American Trucking Associations vice-president, international supply chain operations.

Fortunately, storage incidental to transportation remains considered as “in transportation,” he adds. So long as there is a shipping paper indicating that the storage location is not the shipment’s final destination, the HMRs continue to apply.

What does this mean for for-hire and contract carriers?  “Very little,” Stephenson says. “The presence of a truck driver is a good indication that loading, unloading, or carriage is occurring. Therefore, when a contract or for-hire carrier’s driver is present, the shipment is likely ‘in transportation,’ and therefore EPA, OSHA, and state and local regulations are precluded or preempted.

What does this mean for private carriers? “Once your driver leaves a delivery, the shipment is no longer in transportation and EPA, OSHA, or state or local laws may apply,” he says. “In this particular case, PHMSA found that California and Los Angeles County’s rules regarding safety training and registration fees for receiving goods in rail tank cars, cargo tank trucks, and storing these bulk containers apply.

What does this mean for ATA’s preemption petitions against Pittsburgh and New York City? “It’s difficult to make a call one way or the other right now,” he says. “On one hand, publishing this long-overdue preemption determination indicates that PHMSA is paying more attention to preemption issues in general. On the other, PHMSA made a finding that a state law is not preempted.  Fortunately, (the November 16) finding applies to very different circumstances than ATA’s petitions. Since these petitions were filed, PHMSA engaged in rulemaking to consider the exact issues raised in these petitions. PHMSA has not considered rules related to ATA’s petitions. What consideration PHMSA has given to ATA’s issues in its previous decisions indicates that ATA’s petitions remain on firm ground.”