PHMSA grants NTTC petition in NY hazmat marking controversy

The Pipeline and Hazardous Safety Administration (PHMSA) has granted in part the National Tank Truck Carriers’ (NTTC) preemption petition that challenged the New York State Department of Environmental Conservation’s marking and recordkeeping requirements for gasoline transport vehicles, according to information published in the Federal Register January 23.

John Conley, NTTC president, and Rich Moskowitz, American Trucking Associations vice-president and regulatory affairs counsel, voiced their support of the PHMSA decision.

"This is an important ruling as it reinforces the principle of preemption by the federal government in the area of developing regulations to govern the safe transportation of hazardous materials in the United States," Conley said. "The safe, secure, and efficient transportation of hazardous materials throughout the country requires a consistent regulatory regime. We cannot have every political jurisdiction developing its own hazardous materials regulations.

"This would result in confusion, delay and, inevitably, non-compliance. The tank truck industry and the economy it supports are well served by the concept of federal preemption, and this ruling forcefully upholds that concept. National Tank Truck Carriers appreciates the strong support we received in this petition from other transportation modes, all of which are served by the decision."

Moskowitz seconded Conley's comments, adding: "We are pleased with the outcome of this preemption determination. The Department of Transportation's (DOT) preemption process helps maintain uniform hazmat transportation regulations across the United States. Most motor carriers operate in many different jurisdictions. Unique local marking and recordkeeping requirements, such as the ones preempted in New York, confound a motor carrier’s ability to operate in compliance."

PHMSA ruled that the federal hazardous materials transportation law preempts the following New York regulations:

  • The NY marking requirement that specifies “NYS DEC” appear in two inch type near the U.S. DOT certification plate [6 NYCRR 230.4(a)(3).
  • The recordkeeping requirement to maintain a copy of the most recent pressure-vacuum test results with the transport vehicle [6 NYCRR 230.6(b)].
  • The requirement to retain pressure-vacuum test and repair results for two years [6 NYCRR 230.6(c)].

Moskowitz pointed out that PHMSA found that the requirements are not substantively the same as the federal requirements for marking, maintaining, repairing, or testing of a qualified hazardous materials package. The agency also found that federal law does not preempt the New York requirement that a gasoline transport vehicle must be marked, near the US DOT specification plate, with the date on which the tank was last tested for vapor tightness, as this requirement is substantively the same as the federal requirement.

The NTTC petition, filed more than 10 years ago, was delayed by a need to consult with the US Environmental Protection Agency to determine whether the New York marking and recordkeeping requirements are authorized under the Clean Air Act and DOT’s efforts to develop a uniform marking requirement for cargo tanks.

The notice can be seen online in the January 23 issue of the Federal Register.

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