22 ELR 10583 | Environmental Law Reporter | copyright © 1992 | All rights reserved

A Primer on Hazardous Materials Transportation Law of the 1990s: The Awakening

Stan Millan and Andrew J. Harrison Jr.

Editors' Summary: Regulation of hazardous materials (HAZMAT) transportation has developed in a piecemeal fashion over the past century. In response, Congress passed the Hazardous Materials Transportation Act in 1975 and the Hazardous Materials Transportation Uniform Safety Act in 1990, delegating authority to the U.S. Department of Transportation (DOT) to improve effectiveness, consistency, and uniformity in HAZMAT regulation. The U.S. EPA also participates in HAZMAT regulation under the Resource Conservation and Recovery Act. This Article traces the history of HAZMAT regulations, identifies the regulators and the regulated communities, and delineates the DOT's enforcement responsibilities in cooperation with other federal agencies. The Article also assesses the strengths and weaknesses of the HAZMAT regulations by focusing on the U.S. role in world chemical markets and on states' rights issues under the Tenth Amendment of the U.S. Constitution. Finally, the authors conclude that the HAZMAT requirements tell industry what is expected and allow for innovative means of compliance.

Dr. Millan (S.J.D., Tulane, 1990) is a lecturer in environmental law at Loyola Law School, New Orleans, Louisiana, and he advises industry and agencies on environmental law, including HAZMAT. Mr. Harrison (LL.M., George Washington University, 1991) is an attorney in the Hazardous Waste Law Branch of EPA, Region IV, Atlanta, Georgia. This Article was written by the authors in their private capacities and it represents the views of the authors only. No official support or endorsement by EPA or other entities is intended or should be inferred.

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What is hazardous materials (HAZMAT) regulation all about? Simply put, it is about enhancing public safety by making rules more stringent for transporting hazardous materials than for transporting nonhazardous materials.

HAZMAT law has been developing for more than a century, and since 1975 the U.S. Department of Transportation (DOT) has had the lead in promulgating a national safety program for risks in HAZMAT transportation. Air, water, rail, and roadway modes of transportation are covered by the DOT regulations. The law and regulations were expanded in 1990 to, among other things, better systematize the regulatory scheme, which had developed in a piecemeal fashion, to replicate the international HAZMAT transportation protocols, and to strengthen the program in several areas.

The HAZMAT rules include requirements for (1) classifying materials by the hazards (explosive, flammable, poisonous, etc.) they pose; (2) packaging the materials (including special containers and manufacturer qualifications); (3) hazard communication (e.g., package marking, labeling, placarding, emergency information, and shipping papers); (4) transportation and handling; and (5) incident reporting. These requirements reduce public risk, inform the public about the potential dangers involved in transportation, and set forth precautions to avoid spills.

Anyone who is concerned with public safety should also be concerned with HAZMAT law. This is evident in government data.1 For instance, four billion tons of hazardous materials are transported across this country annually, involving some 500,000 cargo movements daily. These hazardous materials range from gasoline to radioactive shipments. HAZMAT incidents, involving fatalities, property damage, and environmental degradation, continue to occur with this high volume of movement and have heightened public safety concerns. The tragic California train derailment in 1991 that spilled 20,000 gallons of weed killer and pesticide into the Sacramento River is a prominent example.2 More than 8,500 incidents totalling tens of millions of dollars in damages were reported in 1990.

This Article focuses on the development of HAZMAT law and regulation, with emphasis on the major 1990 changes, and assesses the strengths and weaknesses of the DOT program. The Article identifies the regulators and regulated community and provides an understanding of HAZMAT regulations and their enforcement.

I. History of Regulation

A. 1871 — U.S. Coast Guard

The U.S. Coast Guard was the first governmental entity to regulate the transportation of hazardous materials. Under the first federal law enacted to regulate the seaborne movement of explosives,3 Congress authorized the Secretary of the Treasury to issue safety regulations for the transport of explosives, inflammables, and acids over water.4 The Secretary, in turn, delegated the authority to regulate movements of "all explosives and other dangerous articles or substances" over the navigable waters of the United States to the Coast Guard.5 Since most transport of goods in the early years of our country was by waterborne commerce, the Coast Guard was the logical entity to regulate the movement of hazardous materials. Today the Coast Guard still regulates hazardous materials in bulk transport via vessels.

B. 1871-1970: U.S. Coast Guard, Federal Highway Administration (FHWA), Federal Railroad Administration (FRA), Federal Aviation Administration (FAA), Civil Aeronautics Board (CAB), Interstate Commerce Commission (ICC), and the Department of Transportation (DOT)

Several federal agencies participated in the efforts to regulate hazardous materials transportation between 1871 and 1970. Under the Transportation of Explosives Act,6 the ICC issued the standards for packing, marking, loading, and handling explosives. In 1958, Congress delegated authority to the FAA and the CAB to jointly regulate airborne transportation of hazardous materials.7 The FAA's role included developing regulations to attain safety in air transport. The CAB was responsible for setting air tariffs with consideration of air safety.

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In 1967 the DOT was created,8 and the various federal transportation safety agencies were placed within the DOT.9 Through these agencies the DOT became the primary regulator of hazardous materials transportation.10 Each agency was delegated the responsibility to regulate transportation of hazardous materials within its own realm of transportation authority.11 The FAA regulated airline safety, the FHWA regulated motor carriers, and the FRA regulated railroad and pipeline safety.12

To avoid the development of confusing and inconsistent regulations, the Secretary of Transportation established the Hazardous Materials Regulations Board.13 This effort was unsuccessful, and by 1973 the agency was in "disarray."14

C. 1966-1975: National Transportation Safety Board

The National Transportation Safety Board was a five-member investigatory body created in 1966 to act as ombudsman over federal agencies if their regulations of hazardous materials were too lax. However, it lacked the regulatory authority to promulgate regulations, as the DOT was given in subsequent legislation.15

D. Growing Need for Uniform Statutory Authority to Regulate Hazardous Materials Transportation

A comprehensive, more effective, and more efficient use of resources of the various governmental agencies regulating the transportation of hazardous materials was needed. At this time, regulation and enforcement were divided among several federal agencies with little coordination, and the DOT had only a minimal advisory role over these agencies.16 The need to unify the various hazardous materials transportation regulations increased, while public concern over the dangers of leaks or spills of hazardous materials transported through communities continued to grow.

E. Hazardous Materials Transportation Act of 1975

Congress recognized and addressed the balance between the danger of transporting hazardous, yet important, commodities and wastes and the need for comprehensive federal legislation.17 In 1975 Congress enacted sweeping legislation entitled the Hazardous Materials Transportation Act (HMTA).18

The HMTA repealed the various federal agencies' rulemaking authorities, and instead assigned authority to the Secretary of Transportation to promulgate regulations for hazardous materials transportation in interstate and intrastate commerce.19 The HMTA empowered the Secretary to designate as a "hazardous material" any "particular quantity or form" of a material that "may pose an unreasonable risk to health and safety or property."20 The Act also gave the Secretary authority to regulate any aspect necessary and appropriate to ensure safe transportation of hazardous materials, including routing, packaging, placarding, labeling, andhandling.21 This authority extended to the regulation of manufacture, testing, and certification of packages and containers used in hazardous materials transportation.22 The Secretary's enforcement powers under the HMTA included the authority to assess civil penalties and to file criminal charges.23

II. 1975 to Present: U.S. Environmental Protection Agency (EPA) and the DOT

A. Hazardous Materials Transportation Uniform Safety Act of 1990

Public and congressional concern continued to grow, and in 1990 Congress enacted the Hazardous Materials Transportation Uniform Safety Act of 1990 (HMTUSA).24 Congress was concerned that the maze of conflicting state, local, and federal regulations may create unreasonable hazards in some localities and confuse shippers and carriers attempting to comply with the sometimes inconsistent regulations.25 Congress viewed consistent federal laws and regulations as necessary and desirable to reduce the potential risks to life, property, and the environment posed by unintentional releases of hazardous materials.26

* Authority to Regulate Materials. Like the HMTA, the HMTUSA requires the Secretary of Transportation to promulgate regulations for the safe transport27 of hazardous materials in intrastate, interstate, and foreign commerce.28 The Secretary also retains its authority to designate materials as [22 ELR 10586] hazardous when they pose unreasonable risks to health and safety or property.29

* Who is Regulated? The HMTUSA applies to three classes of persons. These include private, public, and federal persons who "offer" hazardous materials for transport (shippers); who accept hazardous materials for transport (common, contract, and private carriers); and who manufacture, repair, and retest containers to be used for transporting hazardous materials.30

* Highway Routing. The different state and local highway routing regulations have generated difficulty for and confusion among HAZMAT transporters. To encourage uniformity, the HMTUSA requires that the DOT promulgate standards to be used by the states when designating highway routes for HAZMAT transportation.31 These standards must enhance overall public safety, provide for consultation with affected jurisdictions, offer an opportunity for public comment, and must not unreasonably burden commerce.32 The statute also enumerates 12 factors states must consider when they establish routes.33 If a conflict arises between jurisdictions over routing restrictions, any affected state may petition the Secretary to implement dispute resolution provisions.34

The HMTUSA's highway routing provisions apply to motor vehicles that are subject to the statute's placarding requirements.35 The Secretary must maintain a list of currently effective HAZMAT highway route designations.36

* Motor Carrier Safety. The Secretary must develop criteria for the issuance of federal permits to motor carriers of hazardous materials that either present a "high degree of risk" or are of significant concern to the public.37 Motor carriers, who transport on highways controlled quantities of radioactive materials, certain explosives, or hazardous materials extremely toxic by inhalation, must file a registration statement with the DOT38 and must possess a valid DOT motor carrier safety permit in order to conduct such activities.39 Moreover, shippers may offer hazardous materials only to a carrier who possesses a valid safety permit.40

* Motor Carrier Safety Ratings.41 This provision requires the Secretary to issue a rule amending the federal motor carrier safety regulations to prohibit any motor carrier with an unsatisfactory rating from transporting hazardous materials requiring placarding or from operating a passenger bus;42 to make available to the public the safety ratings of carriers that received unsatisfactory ratings; and to conduct reassessments of carriers with unsatisfactory ratings. A motor carrier with an unsatisfactory rating43 is prohibited from operating a commercial motor vehicle.44

Although the DOT was authorized by the HMTA to establish registration requirements, it did not do so. In response to the concern that the DOT has insufficient information about carriers, [22 ELR 10587] shippers, and container manufacturers, the HMTUSA requires a rulemaking to establish annual or other registration requirements that will apply to these classes of persons.45 The rule must take into consideration the feasibility of registration as a means to encourage compliance.46

* Disclosure. Disclosure must be made on shipping papers. The provision applies to shippers and carriers. A shipper shall provide its carrier with a shipping paper,47 which the carrier shall keep in the transportation vehicle.48 The carrier must convey this information to any emergency response official.49

* Shipper Responsibility Study. The Secretary must report to Congress the feasibility of establishing a liability program. The DOT is to determine the safety benefits of making shippers liable for half of the costs, damages, and attorneys fees assessed against the motor carrier when a shipper selects a carrier with an unsatisfactory safety rating or a conditional safety rating for over 12 months. The Secretary shall also determine the benefits of provisions that preclude a shipper from transferring liability by indemnification or other agreements holding a shipper harmless.50 Other liability schemes may also be explored.

* Markings and Placards. The Secretary of Labor must issue standards under § 6(b) of the Occupational Safety and Health Act,51 which will require employers who receive a package, container, or vehicle containing hazardous materials to retain the markings, labeling, and placarding on the container until the hazardous materials have been removed.52

* Emergency Response and Training Grants. The HMTUSA establishes a program by which grants may be made to the states to enhance public planning and public sector employee training in methods of responding to releases of hazardous materials.53

* Rail Participation Program. The Act amends the Federal Rail Safety Act of 197054 to include HAZMAT requirements in state participation programs in rail safety.55 The intent was to expand the state participation program to include the HAZMAT violations, but state enforcement authority against railroads under state HAZMAT laws was to remain unaffected.56 Under the statute, the DOT retains sole authority to assess penalties and to seek injunctive relief for violations of the HAZMAT regulations and standards.

* Radioactive Materials. The statute contains specific provisions for the transport of radioactive materials.57 Radioactive materials transported for medical use must not pose an unreasonable hazard to health and safety.58 Section 1813 provides that the Secretary shall amend the DOT regulations to ensure safe rail transport.59 Also, transporting regulated quantities of radioactive materials on motor vehicles requires inspections and certifications of the vehicles.60 Additionally, a study is required to compare the safety of transporting high-level radioactive materials and spent nuclear fuel on "dedicated trains" as opposed to the safety of transporting on regular rail.61

* Training. The statute authorizes the Secretary to develop and revise the criteria for handling hazardous materials,62 such as requirements for a minimum number of personnel, a minimum level of personnel training, detection and warning equipment, specifications regarding the use of equipment and facilities, and a monitoring system.63 The Secretary will also specify initial and repeated training to begiven to HAZMAT employees, including safe loading, unloading, handling, storing, transporting, and emergency preparedness.64

* Unlawful Representation and Tampering. Section 1804(e) makes it unlawful (1) to represent that a container or package is safe, certified, or in compliance with the requirements of the statute, unless it meets the requirements of all applicable regulations, or (2) to falsely represent that a hazardous material is within a particular vehicle or other means of transportation if it is not present.65 Moreover, it is unlawful to alter, remove, deface, destroy, or tamper with markings, labels, placards, shipping documents, packages, containers, motor vehicles, rail freight cars, aircrafts, or vessels involved in the transportation of hazardous materials.66

A civil penalty may be imposed on those who knowingly [22 ELR 10588] misrepresent an unsafe container as safe.67 Civil penalties of up to $ 25,000 and not less than $ 250 may be imposed for each violation of an order or regulation applicable to transporters, shippers, or manufacturers.68 If a violation continues, each day is considered a separate violation for the purpose of calculating the civil penalty.69

Criminal penalties are imposed on persons who knowingly tamper with any marking, labeling, placarding, or shipping document, or with any package, container, or means of transportation for hazardous materials.70 Violators of any order or regulation issued under the statute are also subject to criminal penalties.

* Shipping Papers. Any person who offers for transportation in commerce a hazardous material subject to the shipping paper requirements shall provide the document to the carrier.71 The carrier shall keep the shipping papers within the transportation vehicle until the hazardous materials are no longer in transportation or until an accident has occurred and the documents have been proffered to the responding government official.72 Moreover, the transporter is obligated to disclose information on the hazardous materials immediately to any requesting emergency response official.73

* Records. Section 1808 requires each person affected by the statute to keep records and make reports according to the DOT regulations.74 That section also provides for inspections to be conducted by the DOT personnel.75

* Preemption of State and Local Laws. In addition to provisions for uniformity, the statute preempts state and local laws and regulations if compliance with both the local and federal regulations is impossible; if the local regulation creates an obstacle to the accomplishment or execution of the federal rules; if a local regulation is not substantively the same as the federal regulation;76 or if a local highway routing regulation is not in accordance with the procedural and substantive requirements of the federal standards.77 Local fees must be equitable and used for purposes related to HAZMAT transportation.78

The statute establishes a system to determine whether a rule is preempted. Persons may request a determination by the DOT of whether a local requirement is preempted by federal safety regulations or federal highway routing regulations.79 The DOT may waive the preemption provision if the local regulation provides equal or greater public protection and does not unreasonably burden interstate commerce.80 In case of an imminent hazard, the DOT may seek a court order suspending or restricting transportation of a hazardous material or requiring cleanup of a transportation related spill.81

B. Resource Conservation and Recovery Act (RCRA)82

RCRA established a "cradle-to-grave" hazardous waste83 management system. In regulating hazardous waste transportation, RCRA targets generators of hazardous wastes.84 The generators must obtain an EPA identification number, maintain records, and make reports. They must also prepare hazardous wastes for transport, complete uniform manifest forms, and follow various storage requirements. Regulations require generators to properly package, label, mark, and placard their hazardous wastes. Each generator may keep hazardous wastes onsite only for a limited time. However, generators may gather sufficient quantities of hazardous wastes to make shipping economically feasible.

The key element of the "cradle-to-grave" management system is the manifest.85 A RCRA manifest ensures proper disposal of a hazardous waste by requiring a detailed record of the waste and its disposal process. A manifest contains the names and EPA identification numbers for the generator, the transporter, and the treatment, storage, or disposal (TSD) facility; a description and quantity of the waste; and the address of the destined facility. The manifest will indicate that a hazardous waste has actually reached the designated TSD facility. Each time a hazardous waste is transferred from one person to another, the manifest must be signed to prove receipt. Each person gets a copy. When the hazardous waste reaches the designated TSD facility, the operator of the facility must send the generator, within 30 days, a copy of the manifest as a proof of receipt.86 If a generator intends to export waste, the written consent of the receiving country must be obtained and EPA must be notified 60 days prior to shipment.87

RCRA defines "transporter" as "any person engaged in the off-site transportation of manifested hazardous wastes, by air, rail, highway, or water." Thus, on-site transports by generators, such as large industrial plants, to their own TSD facilities, as well as transports wholly within a commercial TSD facility, do not require a manifest.88 Transporters must [22 ELR 10589] be careful not to store hazardous wastes for more than 10 days, or they become subject to the regulatory requirements for storage facilities. Transporters are considered generators if they, for instance, mix different hazardous wastes with different DOT shipping descriptions.

EPA developed its regulations in a joint effort with the DOT.89 RCRA mandates that if a regulated hazardous waste is also a "hazardous material" under the HMTUSA, then EPA regulations must be consistent with the DOT regulations.90 Transporters must comply with applicable RCRA regulations and the DOT regulations.

EPA regulations require that a transporter obtain an EPA identification number, comply with manifest requirements, and take immediate action to protect human health and the environment if a release (e.g., spill) of hazardous waste occurs.

A transporter may not handle hazardous wastes without an EPA identification number, nor may the transporter accept wastes from a generator who does not possess an EPA identification number. RCRA requires the transporter to deliver the waste shipment to the designated TSD facility and to require the TSD facility to sign and date the manifest prior to its receipt of the hazardous waste.91 The transporter must keep a copy of the manifest for three years.

If a release occurs, the transporter must notify the National Response Center if it threatens lives, death, or serious injury; damage of more than $ 50,000; or release of disease-causing agents,92 radioactive materials or hazardous substances greater than reportable quantities or threshold amounts of hazardous substances listed by EPA. The transporter must file a release report with the DOT within 15 days.

In addition to avoiding a generator and a storage status, a transporter should resist selecting the TSD facility. Transporters who select the destination of hazardous wastes may later become liable for the waste's release from the facility. Courts have interpreted liability to extend to a transporter for the release or threatened release of hazardous substances from a treatment or storage facility if the transporter had selected the facility and had brought hazardous substances there.93

C. Hazardous Liquid Pipeline Safety

The Hazardous Liquid Pipeline Safety Act of 1979 (HLPSA)94 regulates the transportation of "hazardous liquids"95 in "pipeline facilities."96 Under the HLPSA, the DOT promulgated regulations applicable to transporters of hazardous liquids and nonfederal owners or operators of pipelines.97 These regulations set the minimum federal safety standards for the transportation of hazardous liquids and pipeline facilities.98 The regulations require reporting of hazards to life or property,99 and create standards for design, installation, inspection, operation, replacement, and maintenance of pipeline facilities.100 The statute also sets forth authority for the Secretary to establish notification standards,101 pipeline inventory standards,102 instrumental internal inspection devices,103 and offshore pipeline inspection and burial.104

The HLPSA requires that hazardous liquid transporters and pipeline owners or operators comply with safety standards, establish, maintain, and comply with inspection and maintenance plans, permit access and entry to facilities, and provide reports and information to the DOT.105 A civil penalty of $ 10,000 for each day of violation (not to exceed $ 500,000) may be imposed for violation of the safety standards; for failure to establish, maintain, or comply with the inspection and maintenance plan; or for failure to take corrective action.106 A criminal penalty may also be imposed in the amount of $ 25,000 and/or imprisonment for up to five years for willfully and knowingly violating the above provisions.107 Moreover, persons who willfully or knowingly injure or destroy, or attempt to injure or destroy, an interstate pipeline are subject to criminal penalties of $ 25,000 and/or 15 years imprisonment.

The provisions of § 2008 are extremely important. The DOT may seek relief in U.S. district courts for violations of the HLPSA or the implementing regulations, including mandatory or prohibitive injunctive relief, interim equitable relief, and punitive damages.108 The most significant provision of this section is the authority given to the DOT to require necessary corrective action when a pipeline is determined hazardous to life or property.109 A pipeline facility [22 ELR 10590] may be determined hazardous if facts and circumstances lead to that conclusion.110

III. Who Regulates Hazardous Materials Transportation?

EPA and authorized states regulate the generation and transportation of hazardous wastes under RCRA, to protect human health and the environment.111 EPA establishes standards consistent with the DOT regulations promulgated under the HMTA and the HMTUSA. Furthermore, EPA sets forth requirements that mandate the cleanup of discharges of hazardous wastes.112

The DOT also regulates hazardous waste transportation. The DOT regulations deal with miscellaneous hazardous materials. A memorandum of understanding (MOU) governs EPA and the DOT enforcement of hazardous waste transportation standards.113 Under the terms of this agreement, EPA and the DOT each executes regulatory authority over individual areas with overlapping authority in some areas. This section of the Article describes the areas of regulation conducted by each.

A. Role of EPA

Under the MOU, EPA is delegated nine individual responsibilities, several of which compliment the DOT enforcement. One responsibility is to conduct an ongoing program to monitor the generators and operators of treatment, storage, or disposal facilities for compliance with RCRA regulations.114 EPA will institute enforcement when a violation of transportation regulations is ancillary to the treatment, storage, or disposal of hazardous waste.115 The MOU provides as an example of an EPA enforcement activity the prosecution of a "midnight dumper," since transportation is ancillary to the disposal of a hazardous waste in that circumstance.116

EPA will also investigate possible violations of RCRA based on information provided by the DOT.117 If information pertaining to a HMTUSA violation is uncovered during the course of an investigation, EPA is to tender this information to the DOT, along with any reports, documents, or evidence necessary to conduct an enforcement action118 or a regulatory action.119 Significantly, under the MOU, EPA is obligated to bring enforcement action based on a finding of "imminent and substantial endangerment to health and the environment."120

The MOU also requires EPA to provide information to other government entities. EPA is to provide, on a continuing basis, a list of all hazardous waste transporters who have notified EPA of their activities and possess EPA identification numbers, to the Bureau of Motor Carrier Safety (BMCS), the FHWA's Washington Office, and the DOT.121 EPA will also provide information to these same entities on all suspected violations of the HMTUSA and the implementing regulations.122

B. Role of the DOT

The DOT must conduct five individual activities under the MOU. The DOT will conduct inspections of HAZMAT transporters and shippers on an ongoing basis to ensure compliance with HMTUSA regulations.123 Additionally, the DOT will investigate EPA reports of suspected violations and, if appropriate, institute enforcement actions for violations of the HMTUSA.124 If any information uncovered indicates a RCRA violation, the DOT will provide this information to EPA, along with any reports, documents, or other evidence necessary for an enforcement action.125 Indeed, any information in the DOT's possession that indicates a possible violation of RCRA will be provided to EPA.126

C. Coordination of EPA and DOT Activities

According to the MOU, EPA promulgates regulations affecting hazardous waste materials transportation, and the DOT requires shippers to comply with both HMTUSA and RCRA regulations. The MOU further states the presumption that if both RCRA and the HMTUSA are violated and one agency institutes an enforcement action, the other will not.127 Although the MOU does not prohibit dual enforcement actions,128 it does state that the agencies will coordinate investigations and enforcement actions in order to avoid duplication of effort.129 The agencies also have agreed to maintain close working relationships, exchange information concerning planned monitoring and enforcement activities, designate contact points and regional liaisons, and issue and exchange instructions and guidelines to implement the MOU.130

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D. Radioactive Materials — The DOT, Department of Energy (DOE), and the Nuclear Regulatory Commission (NRC)

Several agencies have overlapping authorities in regulating shipments of radioactive materials.131 Radioactive materials consist of commercial waste items from nuclear power plants, including spent enriched uranium fuel rods that powered the plants; transuranic materials that were the inner parts of the plant and contaminated by the nuclear power; and defense items, including sometimes highly radioactive nuclear waste from bomb manufacturing and defense nuclear production. The DOT, the DOE, and the NRC all take part in regulating radioactive materials. The DOT regulates the shipment of hazardous materials, including radioactive materials. The NRC regulates commercial activities of nuclear power plants. The DOE ships commercial radioactive waste for storage and defense nuclear waste and weapons for storage or use.

The DOT and the NRC have agreed that the DOT may require non-DOE shipments of commercial radioactive materials to be in special containers certified as safe by the NRC. The NRC certification requires computer modeling, engineering, and/or physical testing of the containers. The DOT has jurisdiction over the DOE shipments of commercial radioactive materials but not defense nuclear materials. However, the two agencies have agreed that the DOE may self-certify, based on the NRC standards, containers used by the DOE for the shipment of commercial radioactive material.

In 1987 the DOE actually obtained a NRC certification of the so-called TRUPACT, a special container used by the DOE for shipping commercial transuranic materials. The certification was based upon the TRUPACT passing a scale model safety test. The package, however, failed a full-scale test, casting doubt on the use of any tests other than actual testings of full-scale models.

The HMTUSA seeks to improve the DOT's regulations of modes and routes and the NRC's enhanced testing and certification of packages used for radioactive shipments.

E. Enforcement

Enforcement of HAZMAT regulations is divided up among a number of the DOT agencies.132 The DOT's Research and Special Programs Administration (RSPA) has enforcement jurisdiction over multimodal — air, rail, etc. — shippers and hazardous materials package manufacturing and testing. The DOT's modal agencies — U.S. Coast Guard, FHWA, FRA, etc. — have jurisdiction over single mode shippers and their carriers. States also enforce local HAZMAT programs modeled after the HMTA.

The DOT has been criticized for not effectively managing enforcement information, such as on-site inspections and audits of company records.133 Consequently, lacking adequate information, the DOT enforcement actions have not targeted high-risk HAZMAT violations, and the DOT has not used enforcement data in computing penalties for actual enforcement actions.

The RSPA, to educate the public and industry, recently published a report of selected DOT enforcement cases.134 One point that is clear from this report is that a shipper's reliance on others, such as agents or carriers, is not a defense. For instance, in the case of reshipments of hazardous materials in their original improper packages, it is not a defense that the package was sent improperly to a shipper by someone else, if the shipper's personnel have handled and shipped away the package without discovering the problem.

IV. Scope of Hazardous Materials Transportation Regulations

A. What Materials are Regulated?

The Hazardous Materials Regulations135 govern the safe transportation of hazardous materials136 and apply to interstate, intrastate, and foreign transport in commerce of these materials.137 Section 1803 of the HMTA provides that the Secretary of Transportation must designate hazardous materials when it determines that a particular quantity and form of a material transported in commerce may cause an "unreasonable risk" to health and safety or property.138

B. Who is Regulated?

The HMTUSA requires the DOT to promulgate regulations "applicable to any person who transports, ships, causes to be transported or shipped, or who manufactures, fabricates, marks, maintains, reconditions, repairs, or tests a package or container which is represented, marked, certified, or sold by such person as qualified for use in the transportation in commerce of hazardous materials."139 The term "person" includes "an individual, firm, copartnership, corporation, company … or government or agency … [that] offers hazardous materials for transportation in commerce or transports hazardous materials in furtherance of a commercial enterprise…."140 The term "transport" (including "transportation") is defined broadly to include "any movement of property by any mode, and any loading, unloading, or storage incidental thereto."141

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In one case interpreting the Hazardous Materials Transportation Act of 1974, the District of Columbia Circuit Court of Appeals determined that a manufacturer that packaged hazardous materials for transport to a foreign customer constituted a party who "offered hazardous material for transportation."142 In NL Industries, Inc. v. Department of Transportation, NL Industries had 79 drums of hazardous chemicals delivered to an air service for transport in foreign commerce. NL Industries certified, by means of a Shipper's Declaration for Dangerous Goods, that the chemicals were in proper condition for air shipment. However, an FAA agent conducted an inspection and found numerous violations of marking, labeling, and packaging regulations.143 The FAA determined that NL Industries had committed 370 violations of the Hazardous Materials Regulations by "knowingly offering" for transportation drums not properly marked, labeled, described, packaged, or in the condition required for air transportation.144

The D.C. Circuit stated that a determination of the statute's applicability to a person "is to be approached functionally, based upon the activities in which that person engaged, without regard to whether it is a shipper or a carrier."145 Thus, according to the D.C. Circuit, the statute and implementing regulations impose responsibility on persons who transport or cause to be transported hazardous materials in commerce, regardless of whether the person is a shipper or a common carrier.146 The status of a person as a manufacturer rather than a shipper or carrier does not release it from the responsibility to comply with the hazardous materials regulations.147

Thus, even if a consignee or buyer of goods rejects a hazardous materials shipment due to improper packaging or placards, but has itself arranged for the carrier to return the goods to the vendor, the buyer could nevertheless be liable as a shipper for returning the shipment that is still not in compliance with regulations. The buyer should refuse the shipment and report the matter to the DOT and the appropriate state police.

C. What Forms of Transportation are Regulated?

The HMTUSA and its implementing regulations apply to all modes of transportation, as exemplified by the definition of "transport."

V. New 1991 HAZMAT Regulation — HM-181

A. General

HAZMAT regulations have developed piecemeal over many years.148 Imprecise classifications of hazardous materials developed over a period of 80 years. Hazard communication requirements developed as the need arose, mostly based on accidents.149 Packaging requirements developed in fragments and were mostly based on industry's economic standards rather than safety.150 The result was a lengthy, complex, and inflexible set of domestic regulations.

The DOT, motivated mainly by a need for international harmony of HAZMAT transport rules, which is part of the DOT's rulemaking obligations under § 1804(d) of the Act, has promulgated new rules on its docket HM-181.151 The DOT will promulgate many new rules under the HMTUSA in the near future, but HM-181 may be its most significant. The new rules are based on international HAZMAT standards with respect to packaging, hazard classification, and handling requirements.

The DOT was sensible in adopting worldwide HAZMAT standards. The United States has a favorable balance of trade in chemicals, and weaknesses in domestic standards could restrict our future competitive position.152 Variable standards also create impermissible trade barriers.153

The international standards arose from recommendations of the United Nations (UN). These recommendations have been adopted by a number of worldwide regulatory systems, including the International Civil Aviation Organization's Technical Instructions for the Safe Carriage of Goods, and the International Maritime Dangerous Goods Code.154 These international codes "grandfathered" non-UN standards on packaging, including the former 49 Code of Federal Regulations (C.F.R.), until December 31, 1990.155 HM-181 itself phases in the new requirements through 1996.156 The result is that any air or water HAZMAT shipments offshore, even to U.S. possessions or states, now must comply with the new HM-181. Only domestic shipments via air and water and other domestic road and rail shipments may benefit from any transitional delays in the new regulation. HM-181 may also be voluntarily adopted for domestic shipments at any time.

Major changes were made by HM-181 in classifications, packaging, and communication. Although these requirements apply directly to the transportation field, they indirectly cause all industry involved in shipping to make costly adjustments.157 Since many carriers have already adopted these new regulations, their costs are now being felt by the industry.

B. Classifications

The first step in any sound safety system is an accurate description of the hazard encountered. This is generally known as a risk assessment, and it is also a common first step in other safety and environmental programs. For instance, in federal environmental cleanup operations, it is important to first characterize a site's problems before selecting [22 ELR 10593] a remedy to clean up that site.158 Likewise, in HAZMAT, the risks associated with the material being shipped must properly be classified before the proper communication and packaging can be secured.

The main problem with the former 49 C.F.R. classifications is that they were not systematized.159 For example, § 175.150 in the former 49 C.F.R. included in the definition of "flammable solids" any solids which, "under conditions normally incident to transportation," are liable to cause fires through friction, retained heat, spontaneous combustion, or water reactivity. However, no quantitative criteria are given to make this definition objective. The new HM-181 makes this definition more objective.

The new HM-181 classifications, based on UN recommendations, are numerical rather than verbal descriptions, as in the former 49 C.F.R. They are more precise than the former 49 C.F.R. classifications.160 For instance, class 4.1 for flammable solids includes specific parameters, e.g., cross references to other classes, specific examples, burning rates, tests, temperature, and rates of gas emissions. The example definition for flammable solids in the former 49 C.F.R. is vague in comparison. However, the clarification in HM-181 does not mean that it is simple to use.

Besides numerical classes and their subdivisions, the new HM-181 includes three packing group codes for all materials, based on a material's degree of hazard. For instance, for class 3 flammable or combustible liquids, group I includes liquids with the highest fire potential (with a boiling point of below 95 degrees Fahrenheit (F)); group II includes liquids with a flashpoint of under 73 degrees F (which have customarily been regulated); and group III includes liquids with a flashpoint of at least 73 degrees F but under 140 degrees F (which is a new level regulated in HM-181). The class, division, and group classifications, in turn, allow the shipper to translate a risk into a type of packaging needed for that material.161

The shipper must eliminate all inapplicable classes. In case of a material with multiple hazards, one must consult with the precedence of hazard table at § 173.2a.162 Improper classification will create serious compliance problems.

C. Packaging

After the shipper has properly classified the hazardous material, the shipper must then consult the DOT's risk management regulations, including packaging and hazard communication.

The UN packaging requirements adopted in HM-181 are the most significant changes. The former 49 C.F.R. relied upon design specifications for HAZMAT packages.163 Many of these designs were based on industry standards and incorporated into the regulations in the 1930s and 40s.164 The designs tended to be outdated and overly specific, and stifled innovation. They were often developed from economic considerations, operating convenience, or historic usage rather than risk management.165

Typical design specifications included requirements for construction, thickness, fastenings, capacity, coatings, and so forth. For example, there are 14 specifications for wooden boxes, including acceptable types of wood, thickness and width of boards, nail parameters, and spacing requirements.166 Many of these specifications are obsolete and ignore innovations in packaging. Although using the correct package complied with the regulations, the correct package may not have always been the safest thing to use under the former 49 C.F.R.

The UN recommended performance oriented packaging (POP) standards rather than design standards. HM-181 mostly uses POP requirements. They do not tell a shipper exactly what the package must look like; instead, they inform the shipper of the types of risk a package must withstand. The more hazardous the transported material is, the greater the package's quality or safety must be.

The result has been the replacement of 100 design-based specifications for nonbulk packages (drums, barrels, boxes, etc.) by 20 UN POP standards.167 Bulk packages (e.g., tanks, etc.) must also meet POP standards.168 The basic new POP requirements in § 173.24 for all HAZMAT packages are that such packages must:

* have no identifiable releases of hazardous materials into the environment;

* be effective at all times; and

* have no mixture of gases or vapors which, through heat or pressure buildup, could significantly reduce package effectiveness.

How do the shippers or package manufacturers satisfy these requirements without designs? HM-181 provides package tests, which they must pass, instead of designs to replicate.169 These tests include drop, leak proofness, hydrostatic, [22 ELR 10594] stacking, cooperage, and vibration tests. For instance, the former 49 C.F.R. informed a shipper of the exact type of aluminum container for shipping hazardous liquids; HM-181 states that if a shipper selects an aluminum container for liquids, the container must pass a hydrostatic and leakproof test with no resulting air or liquid leaks.170

The higher the packing group ranks, the more stringent the test. For example, a drop test for a package containing a group I material is from 5.9 feet, as compared with a drop test from three feet for a group III material. However, because the shipper selects the package, the shipper must not only assure that the quality tests are passed but also that the package actually works.171 Most tests must be performed on design samples, which must periodically be retested (varying from 12 to 24 months), but generally tests need not be conducted on each package produced.172

Combination packages, such as a glass container filled with hazardous liquids and placed inside a larger box, pose special problems. However, not every variation of the inner package — glass, plastic, metal, etc. — placed in the same outer package — wooden package, aluminum package, etc. — requires a retest as a "different package." HM-181 provides for selective testing of such combinations to reduce the shipper's burden.173 Thus, a shipper could select one standard outer package, for example, a "Superpak" or an extra thick cardboard box, and test it for a "worst case" inner package, for example, glass bottles, without having to worry about retesting the outer package every time a similar but less fragile inner container, for example, plastic bottles, is used. However, UN standards have not yet finally adopted this selective testing variation.174

There are other specific requirements for reuse of containers,175 transportation of empty containers,176 and special exceptions to packaging requirements,177 for example, exceptions for certain small quantity shipments.

Obviously, shippers are now more concerned with packaging, training, and testing. An enforcer's job is also increased in complexity. Before, the DOT had to examine only a package and its markings to know if the parties were compliant. New POP standards make testing a cornerstone of compliance.178 The DOT must have additional strategies to inspect package testing facilities and records.

D. Hazard Communication

A final decision the shipper must make under the DOT's risk management rules involves markings, labels, shipping papers, and placards. The shipper must tell the world about the risks involved in the shipment and provide emergency information about spills. The communications consist of the following:

* The hazardous material's package must be marked with (1) the package manufacturer's UN certified and tested capabilities of the package;179 (2) the shipping and technical names and identification number of the material;180 and (3) data about the inner packaging.181

* Appropriate labels (e.g., "Explosive 1.1") must be placed on the HAZMAT packages by the shipper.182

* Shipping papers must include the class, division, packing group, quantities, etc. of the transported materials,183 and emergency response information about the materials must be provided by the shipper. The shipper must also ensure that a knowledgeable person is available 24 hours a day in case of spills.184

* Placarding is required to be placed by the shipper on the carrier's vehicle.185

E. Duties of the Parties

The primary duties of HM-181 fall upon the shipper. Broadly defined as "any person who offers hazardous materials for transportation …," a shipper may indeed have a broad range of responsibilities.

A shipper must take the initial steps to prepare a material for transportation.186 It determines the shipping name, classification, identification number, labels, markings, placards, and suitable packages to be used. It must test the material (e.g., flashpoints, etc.) if the properties of the material are not already known. It must supply emergency response information using information provided by the material manufacturer on Occupational Safety and Health Administration required material safety data sheets, and provide a knowledgeable person on 24-hour call.187

Additionally, if a shipper performs any of the functions of a package manufacturer, the shipper must comply with the package manufacturer's responsibilities pertaining to those functions.188 Thus, if a shipper must develop and test its own POP packages while waiting for the packaging industry to develop a prototype, it must comply with a manufacturer's testing responsibilities. If a shipper tampers with or changes the package, assembles the inner packages of a combination package, or assembles and [22 ELR 10595] closes a package provided by a manufacturer, the shipper is held responsible as a manufacturer for the package. If, however, a shipper merely assembles and closes a package in accordance with the manufacturer's instructions, the shipper may assume that the package is in compliance with the regulations.189 Nevertheless, the package's suitability for a particular hazardous material is solely the shipper's responsibility.

Carriers by air, rail, road, and water continue to have substantial responsibilities, including handling and storage, which have been clarified and expanded in HM-181.190 The most important duty of the carrier is to refuse materials not in compliance with HM-181, including noncompliant packages.191 The new law also added a motor carrier safety permit program requirement.

Package manufacturers192 are responsible for indicating on their packages that the packages are in compliance with POP standards, including passing tests, and for notifying each person who receives the package for use, including distributors and shippers, of any package noncompliance and any package closing and assembly instructions.

Finally, § 1805 of the HMTUSA requires a registration and fee program for most shippers and carriers subject to the Act. The DOT's final rule requires applications and fees to be submitted by August 31, 1992, to continue HAZMAT shipping and transporting.193

The program will continue to evolve.194

VI. Conclusion

The weakest link in the HAZMAT regulatory chain is the Act's trigger mechanism. HM-181's rules apply only to materials in forms and amounts that the DOT finds may pose an "unreasonable risk" to health and safety or property.195 This standard usually requires an agency first to define a real risk, then to consider regulatory options and weigh their costs and benefits, and finally to make reasonable rules.196 Therefore, the DOT acts to regulate against transportation risks "adequately" rather than to the maximum extent.197

The DOT has been criticized for taking a narrow view of its "unreasonable risk" authority and for not regulating severely hazardous materials.198 For instance, the DOT was not regulating the weed killer/pesticide metam sodium in nonbulk form, when a shipment of the material spilled into the Sacramento River in 1991.199 Similarly, EPA has been criticized for regulating only a few chemical substances as "unreasonable risks" under the Toxic Substances Control Act.200

We suggest that the DOT's regulation should be based more upon health and safety concerns than costs, thus comporting with other health-based laws dealing with hazards.201 This is particularly important in implementing HMTUSA regulations, which cover transportation of hazardous waste and radioactive shipments. The public is usually exposed to great risks when such materials are being handled and transported. Since the DOT is concerned with safe packages and warnings rather than banning shipments — the most extreme form of regulation, protection of health and safety rather than economic interests should be DOT's divining rod, even under its present statutory mandate. The DOT is proposing to expand the list of materials it will regulate under HM-181.202 However, the "unreasonable risk" language in the Act will continuously subject any bold DOT action to judicial challenge for the DOT being overly cautious.

To balance against this potentially weak "unreasonable risk" standard, Congress gave the DOT power to act judicially against any shipment that poses an "imminent hazard."203 The power enables the DOT to take instant action — perhaps to enjoin unsafe shipments pending emergency rules — even if the material involved has not previously been regulated by the DOT.204 Unlike the normal cost-conscious approach involved in the "unreasonable risk" standard, the "imminent hazard" standard allows an agency, when in doubt, to regulate or act with caution before any harm materializes.205 Thus, the DOT could have enjoined further shipments of metam sodium after the 1991 derailment until proper regulations were promulgated.206 [22 ELR 10596] This is but one of the many enforcement and regulatory challenges the DOT faces in the 1990s.

The regulations may bring an economic ray of light through the cost-conscious cloud over the DOT's authority. Instead of telling industry exactly what to do to meet HM-181 requirements under a command-and-control approach, the DOT tells industry what is expected, but leaves to industry the "how to." Industry is free to innovate ways to meet POP standards. The true costs of hazardous materials transportation are passed on to the products to be consumed, with the most hazardous requiring higher quality packaging and thus higher costs. Concededly, HM-181 may have added costs to packaging requirements, but these costs are necessary to keep the United States competitive in world chemical markets. Perhaps these regulations carry a hidden message of pollution prevention, whereby to avoid stiff regulation, shippers and manufacturers should alter their reliance on hazardous materials and improve their processes benignly.207

Finally, the hazardous materials highway routing provisions of the HMTUSA,208 which allow the DOT to resolve disputes between states concerning such routing, may raise states' rights issues under the Tenth Amendment of the U.S. Constitution.209 For example, the DOT may favor routing in state A over state B, arguably exposing state A to more risks. Concededly, the federal government may regulate in the area of public health and safety under the Commerce Clause. However, it is doubtful that the federal government will coercively increase the risks in a state without that state's consent. HAZMAT regulation may play a significant role, along with other federal programs controlling state land use, such as wetlands regulation, new clean air nonattainment programs, and nuclear waste siting, as the issue of states' rights takes form in the 1990s.

1. See U.S. GOV'T ACCOUNTING OFFICE, HAZMAT SAFETY 2-3, 6 (1991).

2. See U.S. GOV'T ACCOUNTING OFFICE, CHEMICAL SPILL IN SACRAMENTO RIVER (1991) [hereinafter CHEMICAL SPILL]. The recent train derailment and resulting spill of benzene, creating a toxic cloud and making ghost towns of Duluth, Minn., and Superior, Wis., is another example. Wall St. J., July 1, 1992, at A-1.

3. Bradley M. Marten, Regulation of the Transportation of Hazardous Materials: A Critique and a Proposal, 5 HARV. ENVTL. L. REV. 345, 346 (1981).

4. Act of Feb. 28, 1871, ch. 100, § 4, 16 Stat. 441 (1871). At the time of the delegation, the U.S. Coast Guard was within the Treasury Department. Martin, supra note 3, at 347.

5. Marten, supra note 3, at 347 (citing 46 U.S.C. § 170(7)(a) (repealed 1983)). The U.S. Coast Guard became an entity within the DOT in 1967. Id.

6. Act of Mar. 4, 1909, ch. 321, §§ 232-236, 35 Stat. 1088 (repealed 1979). ICC authority later included regulation of inflammable liquids and solids and radioactive materials. Act of Mar. 4, 1921, ch. 172, § 233, 41 Stat. 1444 (repealed 1948) (inflammable materials); Act of Sept. 6, 1960, Pub. L. No. 86-710, § 232, 74 Stat. 709 (repealed 1979) (radioactive materials); see 18 U.S.C. § 832 note (1976) (Historical & Revision).

7. Federal Aviation Act of 1958, Pub. L. No. 85-726, § 102(b), 72 Stat. 731 (1958) (current version at 49 U.S.C.A. app. § 1302(b) (West Supp. 1992)) (authority to the CAB); id. §§ 601-610 (current version at 49 U.S.C.A. app. §§ 1421-1432 (West Supp. 1992)) (authority to the FAA).

8. Department of Transportation Act, Pub. L. No. 89-670, § 6, 80 Stat. 931, 937 (1966) (codified at 49 U.S.C.A. § 1655 (West 1976)).

9. Marten, supra note 3, at 347.

10. However, additional regulations were imposed by state and local governments, and some methods and standards were also established by industry associations and insurers. Edward E. Shea, New Hazardous-Shipment Rules Strive for a Uniform Standard, NAT'L L.J., July 22, 1991, at 18.

11. Marten, supra note 3, at 347.

12. Id. at 347-48.

13. Id.

14. Id.

15. FREDERICK R. ANDERSON ET AL., ENVIRONMENTAL PROTECTION: LAW AND POLICY 693-94 (2d ed. 1990).

16. Caroline J. Hogue, Regulating the Transportation of Hazardous Materials Over the Nation's Roadways, 15 TRANSP. L.J. 149, 151 (1986).

17. A primary motive of Congress was to end the fragmented regulation of hazardous materials transportation by vesting the primary regulatory authority in one federal agency, the DOT. See Stuart C. Thompson, The Hazardous Materials Transportation Act: Chemicals at Uncertain Crossroads, 15 TRANSP. L.J. 411, 413 (1987).

18. Pub. L. No. 93-633, tit. I, 88 Stat. 2156 (1975) (codified at 49 U.S.C.A. §§ 1801-1812 (West 1976)).

19. Id.

20. This definition includes materials, such as radioactive materials, etiologic agents, flammable or combustible solids or liquids, oxidizing or corrosive agents, compressed gases, poisons, and explosives. Id. § 1803.

21. Id. § 1804.

22. Id.

23. Id. § 1809.

24. Pub. L. No. 101-615, 104 Stat. 3244 (1990) (codified at 49 U.S.C.A. app. §§ 1801-1819 (West Supp. 1992)).

25. 49 U.S.C.A. app. § 1801 note (West Supp. 1992).

26. Id.

27. "Transportation" or "transport" means "any movement of property by any mode, and any loading, unloading, or storage incident thereto." Id. § 1802(15).

28. Id. § 1804(a)(1).

29. 49 U.S.C.A. § 1803 (West 1976).

30. 49 U.S.C.A. app. § 1804(a)(3) (West Supp. 1992). The Congressional Budget Office stated, "While the legislation proposes to strengthen the Federal hazardous materials transportation program, it does not propose to bring additional persons within the coverage of the HMTA beyond the shippers, carriers, and container manufacturers who are now covered." S. REP. NO. 449, 101st Cong., 2d Sess. 9 (1990), reprinted in 1990 U.S.C.C.A.N. 4595, 4603, 4605. However, the United States was deemed to be a "HAZMAT employer" and a regulated "person" for most purposes of HMTUSA, when it engages in "commercial transportation" of HAZMAT (presumably this phrase includes government contracts). See 49 U.S.C.A. app. § 1802(6), (11) (West Supp. 1992); 49 C.F.R. § 171.8 (1991).

31. 49 U.S.C.A. app. § 1804(b)(2) (West Supp. 1992). Highway routing rules shall enhance public safety both within a state's jurisdiction and also in other U.S. jurisdictions. Id. § 1804(b)(3)(A). An opportunity for public comment and consultation with appropriate states, local, or tribal jurisdictions and affected industries is mandatory when developing routing requirements. Additionally, highway routing regulations that affect other hazardous materials transportation in other states may be established only if (1) either the affected states or tribes or the Secretary concur, and (2) the regulations do not burden commerce. Id. § 1804(b)(3)(E). The routes must also provide reasonable access to terminals for the loading and unloading of hazardous materials and to obtain food, fuel, repairs, and personal rest. Id. § 1804(b)(3)(G).

32. Id. § 1804(b)(3).

33. They include: (i) population density; (ii) type of highways; (iii) type and quantities of hazardous materials; (iv) emergency response capabilities; (v) results of consultations with affected persons; (vi) exposure and other risk factors; (vii) terrain considerations; (viii) continuity of routes; (ix) alternative routes; (x) effects on commerce; (xi) delays in transportation; and (xii) other factors considered appropriate by the Secretary. Id. § 1804(b)(3)(I).

34. Id. § 1804(b)(5)(A). If a highway route designation is in dispute, it may be approved only if it complies with DOT regulations and provides the greatest level of highway safety without unreasonably burdening commerce. Id. § 1805(b)(5)(D). A party adversely affected by the decision of the Secretary may seek judicial review in an appropriate U.S. district court within 90 days. Id. § 1804(b)(5)(F).

35. Id. § 1804(b)(7)(A).

36. Id. § 1804(c).

37. S. REP. NO. 449, supra note 30, reprinted in 1990 U.S.C.C.A.N. at 4610.

38. 49 U.S.C.A. app. § 1805(c)(1)(A) (West Supp. 1992). Note that federal, state, and local government agencies and their employees are exempt from this registration requirement. Id. § 1805(c)(15).

39. Id. § 1805(d)(1). The Secretary must establish criteria for the issuance of federal permits. Id. § 1805(d)(2). A permittee's failure to comply with the statute, its regulations, federal motor carrier safety laws and regulations, or applicable financial responsibility obligations may result in amendment, suspension, or revocation of the permit. Id. § 1805(d)(4). The Secretary must provide for a hearing unless an imminent hazard exists. Id.

40. Id. § 1805(d)(3). This is discussed further infra section V.B.

41. This provision was originally approved as part of the Motor Carrier Safety Act of 1989 and the Safe Food Transportation Act. S. REP. No. 449, supra note 30, reprinted in 1990 U.S.C.C.A.N. at 4621.

42. Since no penalties or restrictions are presently imposed on motor carriers with unsatisfactory ratings, suspension of operations of motor carriers provides an incentive for compliance. Id. at 4622. Section 16(b) requires issuance of a rule prohibiting a motor carrier with an unsatisfactory rating from operating a "commercial motor vehicle," as defined in the Motor Carrier Safety Act of 1984, 49 U.S.C.A. app. § 2503(1) (West Supp. 1992).

43. To receive an "unsatisfactory" rating, the motor carrier must lack basic safety management control systems and must have been involved in a preventable accident within the last 12 months. S. REP. No. 449, supra note 30, reprinted in 1990 U.S.C.C.A.N. at 4621.

44. 49 U.S.C.A. app. § 1814(a) (West Supp. 1992). The FHWA inspects motor carriers for compliance with the Federal Motor Carrier Safety Regulations and the Hazardous Materials Regulations and issues a safety rating. Over one-half of the 80,652 motor carriers inspected as of May 1, 1990, received safety ratings less than satisfactory. Approximately four percent of those inspected have safety ratings of "unsatisfactory." Over 688 of these transport hazardous materials are on our highways. S. REP. NO. 449, supra note 30, reprinted in 1990 U.S.C.C.A.N. at 4621. Federal agencies are prohibited from using a motor carrier with an unsatisfactory safety rating. 49 U.S.C.A. app. § 1814(c) (West Supp. 1992).

45. S. REP. NO. 449, supra note 30, reprinted in 1990 U.S.C.C.A.N. at 4623.

46. Id.

47. The shipping paper must contain a description of the hazardous material, its class, its ID number, the immediate first action emergency response information, and a telephone number by which to receive further information. See infra subsection III.A.

48. 49 U.S.C.A. app. § 1804(g)(3) (West Supp. 1992).

49. Id. § 1804(g)(4).

50. Pub. L. No. 101-615, § 27, 104 Stat. 3244, 3276 (1990).

51. 29 U.S.C. § 655(b) (1988).

52. Pub. L. No. 101-615, § 29, 104 Stat. 3244, 3277 (1990).

53. 49 U.S.C.A. app. § 1815 (West Supp. 1992).

54. Pub. L. No. 91-458, tit. II, 84 Stat. 971 (1970) (codified as amended at 45 U.S.C.A. §§ 421, 431-447 (West 1986 & Supp. 1992)).

55. Prior to the HMTUSA, Section 206 of the FRSA applied to railroad safety with the exception of hazardous materials. S. REP. NO. 449, supra note 30, reprinted in 1990 U.S.C.C.A.N. at 4624.

56. Id. The legislative history specifically states that pending litigation over state enforcement authority against railroads under state HAZMAT laws was not to be affected. Id.

57. Id. "Radioactive materials" means "any materials or combination of materials which spontaneously emit ionizing radiation." 49 U.S.C.A. app. § 1807(b) (West Supp. 1992).

58. 49 U.S.C.A. app. § 1807(a) (West 1976).

59. 49 U.S.C.A. app. § 1813(b) (West Supp. 1992).

60. Id. § 1813(d).

61. Id. § 1813(a). High-level radioactive materials, including spent nuclear fuel, are one of the most dangerous forms of radiation. Id. The categories of employees affected is broad, including all of those who perform functions involving HAZMAT "… who … in the course of employment directly affects hazardous materials transportation safety …," e.g., loading, testing packages, labeling, marking, package selecting, etc. See 57 Fed. Reg. 2944, 2952 (May 15, 1992) (to be codified at 49 C.F.R. § 171.8).

62. 49 U.S.C.A. app. § 1805(a) (West Supp. 1992).

63. Id.

64. Id. § 1805(b)(1). All HAZMAT employers must have commenced training their employees within six months of issuance of regulations. HAZMAT employers must also certify that their employees received training and testing. Id. § 1805(b)(6).

65. Id. § 1804(e).

66. Id. § 1804(f).

67. Id. § 1809(a). The United States is not subject to such enforcement. See id. § 1802(a)(4)(B).

68. Id. § 1809(a).

69. Id.

70. Id. § 1809(b). Applicable fines are imposed under 18 U.S.C. and/or imprisonment for five years may be imposed. Id.

71. Id. § 1804(g)(1).

72. Id. § 1804(g)(3).

73. Id. § 1804(g)(4).

74. 49 U.S.C.A. app. § 1808(a) & (b) (West 1976 & Supp. 1992).

75. Id. § 1808(c).

76. 49 U.S.C.A. app. § 1811(a) (West Supp. 1992).

77. Id. § 1804(b)(4)(A).

78. Id. § 1811(b).

79. Id. § 1811(c)(1).

80. Id. § 1811(d).

81. Id. § 1810(b).

82. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA 001-050.

83. RCRA defines "hazardous waste" as:

a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may —

(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or

(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.

RCRA § 1004(5), 42 U.S.C. § 6903(5), ELR STAT. RCRA 166.

84. See generally 40 C.F.R. pt. 262 (1991).

85. See id. pt. 262 subpt. B.

86. Id. § 264.71(b)(4).

87. Id. §§ 262.52(b), .53(a).

88. Stan Millan, A Guide to Hazardous and Solid Waste Law and Regulations, 2 FED. FACILITIES ENVTL. J. 395, 404 (1992).

89. OFFICE OF SOLID WASTE, EPA, RCRA ORIENTATION MANUAL III-27 (1990).

90. 42 U.S.C. § 6923(b) (1988).

91. If the transporter cannot make delivery, the waste must either be returned or delivered to another TSD facility upon the generator's instructions.

92. The transporter must also notify the Center for Disease Control.

93. Section § 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) generally extends liability for the cleanup cost to a transporter only if it selects the site for disposal; however, if a transporter causes a spill of a hazardous substance during transport, it is also liable pursuant to CERCLA under these circumstances. 42 U.S.C. § 9607(a), ELR STAT. CERCLA 024; Environmental Transp. Sys., Inc. v. Ensco, Inc., 763 F. Supp. 384, 392 (C.D. Ill. 1991); see Arnold Reitze et al., Cost Recovery by Private Parties Under CERCLA: Planning a Response Action for Maximum Recovery, 27 TULSA L.J. 365, 372 n.38 (1992) ("most transporter liability cases center around the factual question of whether or to what extent the transporter was responsible for selecting the disposal facility").

94. 49 U.S.C.A. app. §§ 2001-2015 (West Supp. 1992).

95. The term "hazardous liquid" includes petroleum, petroleum products, and any substance or material that is in a liquefied state, transported by pipeline, and may cause an unreasonable risk to life or property when transported by pipeline. Id. § 2001(2). The term does not include liquefied natural gas. Id. "Transportation of hazardous liquids" includes movement and incidental storage of hazardous liquids by pipeline in interstate or foreign commerce. Id. § 2001(3). It excludes gathering hazardous liquids in production, refining, and storage systems. Id.

96. "Pipeline facilities" include pipes, rights-of-way, and equipment and buildings used in the transport of hazardous liquids. Id. § 2001(4).

97. Id. § 2002(a)(1). Section 2001(1) does not include the United States as a regulated "person."

98. Id. § 2002(a)(1) (West Supp. 1992).

99. Id. § 2002(a)(2)(A).

100. Id. § 2002(c).

101. Id. § 2002(i).

102. Id. § 2002(j).

103. Id. § 2002(k).

104. Id. § 2002(l).

105. Id. § 2006(a); see id. §§ 2009, 2010.

106. Id. § 2007(a)(1).

107. Id. § 2007(c)(1).

108. Id. § 2008(a)(1).

109. Id.

110. Id. § 2008(b)(2)(A).

111. RCRA § 3003, 42 U.S.C. § 6923, ELR STAT RCRA 173.

112. CERCLA § 105, 42 U.S.C. § 9605, ELR STAT. CERCLA 233.

113. Memorandum of Understanding Between the Department of Transportation and the Environmental Protection Agency on Enforcement of Standards Applicable to Hazardous Waste Shippers and Transporters, 45 Fed. Reg. 51645 (Aug. 4, 1980) [hereinafter MOU].

114. Id.

115. Id.

116. Id.

117. Id.

118. EPA must also make this information available to the Bureau of Motor Carrier Safety and the FHWA. Id.

119. EPA must also report this information to the Office of Hazardous Materials Regulation, Materials Transport Bureau, and the Research and Special Programs Administration. Id.

120. This mandate applies to situations constituting an "imminent and substantial endangerment to health and the environment," as used in RCRA § 7003, 42 U.S.C. § 6973, ELR STAT. RCRA 196 and FWPCA § 504, 33 U.S.C. § 1364, ELR STAT. FWPCA 623.

121. MOU, supra note 113, at 51645.

122. Id.

123. Id. at 51646.

124. Id.

125. Id.

126. Id.

127. Id.

128. Id.

129. Id.

130. Id.

131. See U.S. GOV'T ACCOUNTING OFFICE, WEAK DOE CONTRACT MANAGEMENT INVITED TRUPACT-II SETBACKS (1992); see also S. REP. 449, supra note 30, reprinted in 1990 U.S.C.C.A.N. at 4613-15. The information in these sources was relied upon for the discussion at section IV.D.

132. U.S. GOV'T ACCOUNTING OFFICE, HAZMAT SAFETY (1991).

133. Id.

134. 57 Fed. Reg. 2322 (Jan. 21, 1992); Letter from Lawrence W. Bierlein, General Counsel, Conference on Safe Transportation of Hazardous Articles, Inc. (COSTHA), to COSTHA (Jan. 27, 1992) (on file with authors) [hereinafter Bierlein Letter].

135. 49 C.F.R. pts. 171-180 (1991).

136. The HMTUSA defines "hazardous materials" as a substance or material designated by the Secretary of Transportation under § 1803 of the HMTA. 49 U.S.C.A. app. § 1802(4) (West Supp. 1992).

137. 55 Fed. Reg. 52402 (Dec. 21, 1990); 49 U.S.C.A. app. § 1804(a) (West Supp. 1992).

138. 49 U.S.C.A. § 1803 (West 1976). These materials may include and are not limited to explosives, radioactive materials, etiologic agents, flammable liquids or solids, combustible liquids or solids, poisons, oxidizing or corrosive materials, and compressed gases. Id.

139. 49 U.S.C.A. app. § 1804(a)(3) (West Supp. 1992).

140. Id. § 1802(11). "Person" does not, however, include the U.S. Postal Service or any agency or instrumentality of the federal government for purposes of §§ 1809 and 1810, which relate to civil penalty and criminal law enforcement actions. Id.

141. Id. § 1802(15).

142. NL Indus., Inc. v. Department of Transportation, 901 F.2d 141, 20 ELR 21132 (D.C. Cir. 1990).

143. Id. at 142, 20 ELR at 21133.

144. Id. at 143, 20 ELR at 21133.

145. Id.

146. Id.

147. Id. at 144, 20 ELR at 21134.

148. 55 Fed. Reg. 52403 (1990).

149. Id.

150. Id.

151. 40 C.F.R.pts.171-180 (1991) (55 Fed. Reg. 52402 (Dec. 21, 1990), amended by 56 Fed. Reg. 47158 (Sept. 18, 1991) and 56 Fed. Reg. 66124 (Dec. 20, 1991)).

152. See 55 Fed. Reg. at 52404.

153. Trade Agreements Act of 1979, tit. IV, 19 U.S.C. §§ 2531-2573 (1988); see 55 Fed. Reg. at 52404.

154. See 55 Fed. Reg. at 52404-05.

155. Id.

156. 49 C.F.R. § 171.14 (1991).

157. Shea, supra note 10, at 28.

158. 40 C.F.R. § 300.430(d) (1991).

159. They consisted of explosives — classes A, B, C (e.g., ammunition); flammable liquids (e.g., paints); flammable solids (e.g., fuses); corrosive materials (e.g., acids); gases (e.g., acetylene); poisonous materials — class A and B (e.g., arsenic); radioactive materials (e.g., enriched uranium); and other regulated materials, classes A-E (e.g., hazardous waste). See 49 C.F.R. pt. 173 (1990).

160. They are as follows: class 1 — explosives, with six divisions (§ 173.50); class 2 — gases, .1 flammable, .2 nonflammable, and .3 poisonous (§ 173.115); class 3 — .1 flammable and .2 combustible liquids (§ 173.120); class 4 — .1 flammable solids, .2 spontaneous combustibles, and .3 dangerous when-wet materials (§ 173.124); class 5 — .1 oxidizers and .2 organic peroxides (§ 173.128); class 6 — .1 poisonous and .2 infectious substances (§ 173.132); class 7 — radioactive materials (§ 173.403); class 8 — corrosive materials (§ 173.136); and class 9 — miscellaneous (§ 173.140). The foregoing references are codified at 49 C.F.R. pt. 173 (1991).

Note: Class 6.2, infectious waste, includes a broad list of "regulated medical waste." 49 C.F.R. § 173.1334(a)(4) & app. G (1991). This regulation could affect a wide variety of businesses, such as medical offices, clinics, nursing homes, etc. Letter from Lawrence W. Bierlein, General Counsel, Conference on Safe Transportation of Hazardous Articles, Inc. (COSTHA), to COSTHA (Apr. 28, 1992) (on file with authors).

161. The hazardous materials table, 49 C.F.R. § 172.101 (1991), aids the user (shipper) in identifying the class, division, group, UN number, and packaging requirements for several thousand hazardous materials.

162. See 55 Fed. Reg. at 52606-07; 56 Fed. Reg. at 66264-65.

163. 55 Fed. Reg. at 52403.

164. Id.

165. Id.

166. Id. at 52403-04.

167. Shea, supra note 10, at 18.

168. 49 C.F.R. §§ 173.24, .24b (1991).

169. Id. pt. 178, subpt. M.

170. Id. §§ 178.604, .605.

171. Letter from Lawrence W. Bierlein, General Counsel, Conference on Safe Transportation of Hazardous Articles, Inc. (COSTHA), to COSTHA (Jan. 7, 1991 [sic]) (on file with authors). This letter contains a detailed sypnosis of HM-181 that provided insight to the writers.

172. 49 C.F.R. § 178.601 (1991). The exception is a leak proofness test, which must be conducted on 100 percent of the packages produced. Id. § 178.604.

173. Id. § 178.601(g)(2).

174. Conversation with A. Altemus, COSTHA, in Washington, D.C. (Nov. 18, 1991).

175. 49 C.F.R. § 173.28 (1991).

176. Id. § 173.29.

177. Id. §§ 173.3, .4, .9, .12, .150, .151, .152, .153, .154, .155, .156 and .306.

178. 55 Fed. Reg. at 52411.

179. 49 C.F.R. § 178.2 (1991).

180. Id. § 172.301.

181. Id. § 172.312.

182. Id. pt. 172, subpt. E.

183. Id. §§ 172.202-.203.

184. Id. § 172.604.

185. Id. pt. 172, subpt. F.

186. Id. § 173.22.

187. Most shippers hire the Chemical Manufacturer's Association's CHEMTREC, which has most material safety data sheets, to provide this service.

188. 49 C.F.R. §§ 173.22(b) and 178.601(b) (1991). See also 29 C.F.R. § 1910.1200(g) (1991) for MSDS requirements and §§ 1910.10-.120 for other OSHA standards dealing with hazardous waste material handling.

189. 55 Fed. Reg. at 52409.

190. 49 C.F.R. §§ 174-177 (1991).

191. Id. §§ 174.3, 175.3, and 177.801.

192. Id. § 178.2.

193. 57 Fed. Reg. 30620 (July 9, 1992); see also Bierlein Letter, supra note 134. There are a few exceptions, e.g., federal and state agencies.

194. See 57 Fed. Reg. 4744 (Feb. 7, 1992). The DOT solicited comments on changes needed for its regulations to comply with the Office of Management and Budget and the President's Council on Competitiveness guidelines. Whether these comments will result in any changes to HM-181 regarding testing, etc., remains to be seen.

195. 49 U.S.C.A. § 1803 (West 1976).

196. See, e.g., Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 1214, 22 ELR 20037, 20042 (5th Cir. 1991) (dealing with EPA's "unreasonable risk" standard in regulating chemical substances, e.g., asbestos, under the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2671, ELR STAT. TSCA 001-056).

197. See City of New York v. The Department of Transportation, 715 F.2d 732, 13 ELR 20823 (2d Cir. 1983).

198. See CHEMICAL SPILL, supra note 2, at 6.

199. Id.

200. 15 U.S.C. §§ 2601-2671, ELR STAT. TSCA 001-056. See U.S. GOV'T ACCOUNTING OFFICE, EPA's CHEMICAL TESTING PROGRAM HAS NOT RESOLVED SAFETY CONCERNS (1991). Of course, DOT has done better than EPA by regulating several thousand hazardous materials under the HMTUSA, including adding to its list gases that are poisonous by inhalation and are not on the UN list. Shea, supra note 10, at 18.

201. See, e.g., Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA 001-050; Sanitary Food Transportation Act of 1990, 49 U.S.C.A. app. §§ 2805-2812 (West Supp. 1992).

202. 57 Fed. Reg. 3854 (Jan. 31, 1992).

203. 49 U.S.C.A. app. §§ 1802(7), 1810(b) (West Supp. 1992).

204. DOT's authority under the Sanitary Food Transportation Act of 1990, 49 U.S.C.A. app. §§ 2801-2812 (West Supp. 1992), is closely modeled after the HMTUSA. Congress was concerned about trucks and railroads back-hauling garbage from the eastern United States after delivering foodstuffs there from the midwestern United States. "Safety" for humans and animals is the DOT's primary focus in regulating shippers and carriers of food, food additives, and drugs under this Act.

205. Reserve Mining Co. v. EPA, 514 F.2d 492, 5 ELR 20596 (8th Cir. 1975).

206. In 1992, the DOT stated that commodities that only present an environmental and not acute health hazard are not adequately regulated. 57 Fed. Reg. 3854 (Jan. 27, 1992). Therefore, the DOT has added miscellaneous classes of goods regulated as hazardous materials, which previously only included hazardous wastes and substances regulated by EPA. Those new hazardous materials are hundreds of marine pollutants presently subject to international protocols and codes, including the Protocol of 1978 relating to the international convention for the prevention of pollution from ships MARPOL 7, 8/78, and the International Maritime Dangerous Goods Code. However, the DOT proposes to regulate these marine pollutants in all modes of transportation and not just ships. The DOT feels that rail, road, and air shipments of these pollutants, including metamsodium, could still cause damage to the aquatic environment. Obviously, industry is concerned about these additional requirements. The DOT plans to expand the list further in the future beyond hazardous waste and substances and marine pollutants. Id. at 3855.

207. See Pollution Prevention Act of 1990, 42 U.S.C.A. §§ 13101-13109 (West Supp. 1992).

208. See 49 U.S.C.A. app. § 1804(b)(5) (West Supp. 1992).

209. See New York v. United States, 60 U.S.L.W. 4603 (U.S. June 19, 1992).

22 ELR 10583 | Environmental Law Reporter | copyright © 1992 | All rights reserved