Monday, June 01, 2020

By JHMT StaffMay 15, 2020

Today, the Pipeline and Hazardous Materials Safety Administration (PHMSA) published in the Federal Register one Notice of Administrative Determination of Preemption and one decision on petition for reconsideration of an administrative determination of preemption.

Hazardous Materials: The State of Washington Crude Oil by Rail Volatility Requirements [Docket No. PHMSA-2019-0149 PD-40(R)] finds that Federal Hazardous Material Transportation Law (HMTA) preempts Washington State's vapor pressure limit for crude oil loaded or unloaded from rail tank cars, for three reasons.

  1. The vapor pressure requirement constitutes a scheme for classifying a hazardous material that is not substantively the same as the HMR.
  2. The vapor pressure requirement imposes requirements on the handling of a hazardous material that are not substantively the same as the requirements of the HMR.
  3. PHMSA has determined that the vapor pressure requirement is an obstacle to accomplishing and carrying out the HMTA.

In addition, PHMSA finds that the administrative record regarding Washington State's Advance Notice of Transfer (ANT) requirement is insufficient to make a determination whether the requirement is preempted under the HMTA.

Hazardous Materials: New York City Permit Requirements for Transportation of Certain Hazardous Materials [Docket No. PHMSA-2014-0003 PD-37(R)] grants the petition from the Fire Department of the City of New York (FDNY) for reconsideration in part and also denies the petition in part.

  1. PHMSA affirms its determination that the HMTA preempts FDNY's permit and inspection requirements, FC 2707.4 and 105.6, with respect to vehicles based outside the inspecting jurisdiction, and its determination that the HMTA does not preempt these requirements with respect to vehicles that are based within the inspecting jurisdiction. 
  2. PHMSA reverses its determination that FDNY is not using the revenue it collects from its permit fee for authorized purposes.

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