[Federal Register Volume 68, Number 219 (Thursday, November 13, 2003)]
[Notices]
[Pages 64413-64422]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-28254]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
[Docket No. RSPA-03-16456 (PDA-30(R)]
Houston, Texas Requirements on Storage of Hazardous Materials
During Transportation
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Public notice and invitation to comment.
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SUMMARY: Interested parties are invited to submit comments on an
application by Societ[eacute] Air France for an administrative
determination whether Federal hazardous material transportation law
preempts requirements of the City of Houston, Texas, relating to the
interim storage of hazardous materials during transportation.
DATES: Comments received on or before December 29, 2003, and rebuttal
comments received on or before February 11, 2004, will be considered
before an administrative determination is issued by RSPA's Associate
Administrator for Hazardous Materials Safety. Rebuttal comments may
discuss only those issues raised by comments received during the
initial comment period and may not discuss new issues.
ADDRESSES: The application and all comments received may be reviewed in
the Dockets Office, U.S. Department of Transportation, Room PL-401, 400
Seventh Street, SW., Washington, DC 20590-0001. The application and all
comments are also available on-line through the home page of DOT's
Docket Management System, at http://dms.dot.gov.
Comments must refer to Docket No. RSPA-03-16456 and may be
submitted to the docket either in writing or electronically. Send three
copies of each written comment to the Dockets Office at the above
address. If you wish to receive confirmation of receipt of your written
comments, include a self-addressed, stamped postcard. To submit
comments electronically, log onto the Docket Management System website
at http://dms.dot.gov, and click on ``Help'' to obtain instructions.
You may also sign up on DOT's DMS ``List Serve'' on this website. This
service will automatically notify you when certain documents are put
into a docket that is of interest to you.
A copy of each comment must also be sent to (1) Michael F. Goldman,
Esq., Silverberg, Goldman & Bikoff, L.L.P., 1103 30th Street, NW.,
Suite 120, Washington, DC 20007, counsel for Societ[eacute] Air France,
and (2) Randy Rivin, Esq., Legal Department, City of Houston, P.O. Box
1562, Houston, TX 77251-1652. A certification that a copy has been sent
to these persons must also be included with the comment. (The following
format is suggested: ``I certify that copies of this comment have been
sent to Messrs. Goldman and Rivin at the addresses specified in the
Federal Register.'')
[[Page 64414]]
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (volume 65, Number 70, pages 19477-78.) or you may visit
http://dms.dot.gov.
A list and subject matter index of hazardous materials preemption
cases, including all inconsistency rulings and preemption
determinations issued, are available through the home page of RSPA's
Office of the Chief Counsel, at http://rspa-atty-dot.gov. A paper copy
of this list and index will be provided at no cost upon request to Mr.
Hilder, at the address and telephone number set forth For Further
Information Contact below.
FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief
Counsel, Research and Special Programs Administration, U.S. Department
of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001;
telephone No. 202-366-4400.
SUPPLEMENTARY INFORMATION:
I. Application for a Preemption Determination
Societ[eacute] Air France (Air France) has applied for a
determination that Federal hazardous material transportation law, 49
U.S.C. 5101 et seq., preempts permit requirements contained in the Fire
Code of the City of Houston (Fire Code) and additional secondary
containment and segregation requirements imposed by the Houston Fire
Department (HFD), as the HFD applies those requirements to the handling
or storage of hazardous materials by Air France at George Bush
Intercontinental Airport (IAH). The specific provisions of the Fire
Code challenged by Air France are the following:
A. Permits
1. Sections 105.8.h.1 and 8001.3.1, which require a permit to
store, transport on site, dispense, use or handle hazardous materials
in excess of certain ``exempt'' amounts listed in Table 105-C of the
Fire Code.
2. Sections 105.8.f.3 and 7901.3.1, which require a permit to
store, handle, transport, dispense, or use flammable or combustible
liquids in excess of the amounts specified in Sec. 105.8.f.3.
3. Sections 8001.3.2 and 8001.3.3, which specify that the HFD chief
may require an applicant for a permit to provide a hazardous materials
management plan (HMMP) and a hazardous materials inventory statement
(HMIS), respectively, in accordance with the provisions of Appendix II-
E of the Fire Code.
B. Containment
1. Sections 8003.1.3.3 and 7901.9, which require secondary
containment in buildings, rooms or areas used for storage of hazardous
materials and flammable or combustible materials, respectively, in
excess of specified quantities.
2. Sections 8001.10.6, 8001.11.8, 7902.1.6, and 7902.5.9, which
contain provisions on the use of storage cabinets to increase exempt
amounts of hazardous materials or to separate incompatible materials.
According to Air France, it transports cargo on both passenger-
carrying and all-cargo aircraft between IAH and Paris, France and,
since 1979, it has received an annual permit from the HFD to handle and
store hazardous materials at its IAH cargo facility. It states that the
hazardous materials stored at IAH ``are in transit * * * under active
shipping papers (air waybills) and are only present there incidental to
prior or subsequent air transportation,'' and where ``palletization and
other procedures related to their carriage by air'' take place. It
stresses that ``hazardous materials typically spend only a very short
period of time at the Air France cargo facility,'' and that ``Air
France is unable to predict what hazardous materials it may have in its
facility at any given time since this is a function of the hazardous
materials that its customers choose to ship.''
Air France states that, beginning in June 2002, the HFD has
required it to submit a Hazardous Materials Management Plan (HMMP) and
a Hazardous Materials Inventory Statement (HMIS) in order to obtain a
permit, both of which require extensive information. It relates that
the HFD refused to accept the HMMP and HMIS submitted by Air France
until June 2003, and, during the interval, the HFD cited the local Air
France cargo manager for several violations of the Fire Code including
the alleged failure to provide a proper HMIS for the storage of
hazardous materials and the alleged failure to post the required local
permit for the storage, handling or use of flammable liquids.
Air France also states that it moved into a new cargo warehouse
facility at IAH in July 2003, where, as a condition of issuing a
certificate of occupancy, the HFD has required the installation of ``a
hazardous materials storage cabinet * * * for the storage by Air France
of certain in transit hazardous materials.'' Air France indicates it
operates cargo warehouses at six other locations in the United States,
and none of these jurisdictions requires it to obtain a local permit or
install and use storage cabinets when it handles and stores hazardous
materials in the course of transportation.
As Air France notes in its application, in a prior proceeding, RSPA
considered permit requirements in Section 105 and Articles 79 and 80 of
the Fire Code relating to the transportation of flammable liquids and
other hazardous materials. Preemption Determination (PD) No. 14(R),
Houston, Texas Fire Code Requirements on the Storage, Transportation,
and Handling of Hazardous Materials, 63 FR 57606 (Dec. 7, 1998),
decision on petition for reconsideration, 64 FR 33949 (June 24, 1999).
The version of the Fire Code then in effect stated that it was
primarily directed at ``the hazards of fire and explosion arising from
the storage, handling, and use of hazardous substances, materials and
devices, and from conditions hazardous to life and property in the use
and occupancy of buildings and premises.'' 63 FR at 67507 (quoting from
Sec. 101.2 [``Scope''], emphasis supplied). Based on representations of
the City of Houston (City) that it did not require permits, apply its
definition of ``hazardous materials,'' or apply its tank design
requirements to vehicles ``meeting DOT requirements,'' RSPA found that
challenges to these provisions in the Fire Code ``have become moot.''
63 FR at 67510.
In PD-14(R), RSPA discussed the general principle that
the transportation of hazardous materials in commerce subject to the
Federal hazardous material transportation law and the HMR includes
the storage of these materials ``incidental to [their] movement.''
49 U.S.C. 5102(12). Accordingly, RSPA has stated that HMR clearly
apply to ``transportation-related storage.'' IR-19, Nevada Public
Service Commission Regulations Concerning Transportation of
Hazardous Materials, 52 FR 24404, 24409 (June 30, 1987), decision on
appeal, 53 FR 11600 (Apr. 7, 1988). And RSPA reiterated in PDs 8(R)-
11(R) that the HMR apply to ``[s]torage that is incidental to
transportation,'' which includes ``storage by a carrier between the
time a hazardous material is offered for transportation and the time
it reached its intended destination and is accepted by the
consignee.'' 60 FR [8774] at 8778 [(Feb. 15, 1995)]. See also PD-
12(R), New York Department of Environmental Conservation
Requirements on the Transfer and Storage of Hazardous Waste, 60 FR
62527, 62541 (Dec. 6, 1995), decision on petition for
reconsideration, 62 FR 15970,1 5971 (Apr. 3, 1997)
(``transportation-related
[[Page 64415]]
activities'' include the interim storage of hazardous materials at a
transfer facility).
Id. RSPA also explained that, when a State or local permit is required
``for a facility where hazardous materials are stored in
transportation,'' preemption depends on what is required to obtain the
permit. Id. RSPA has found that the Federal law preempts these permit
requirements when the underlying conditions are ``so open-ended and
discretionary that they authorize the [State] to approve storage
prohibited by the HMR or prohibit storage authorized by the HMR,'' id.
quoting from Inconsistency Ruling (IR) No. 19, 52 at 24410, and
``unfettered discretion * * * with respect to approval or disapproval
of storage of hazardous materials incidental to the transportation
thereof is inconsistent with the HMTA and the HMR,'' id., quoting from
IR-28, San Jose Restrictions on the Storage of Hazardous Materials, 55
FR 8884, 8890 (Mar. 8, 1990), appeal dismissed as moot, 57 FR 41165
(Sept. 9, 1992). In IR-28, RSPA found that an in-transit permit
requirement is preempted when it requires the submission of a HMMP and
HMIS and stated that:
detailed information required to be provided concerning the identity
and quantity of hazardous materials (and other materials) which is
transportation carrier might store at its facility during a given
year is impossible to compile and provide in advance because a
common carrier is at the mercy of its customers, including the
general public, who may without advance notice offer to the carrier
virtually any quantity of any of the thousands of hazardous
materials listed in, or covered by, the HMR.
Id., quoted at 64 FR at 33952.
In PD-14(R), the City asked RSPA to postpone any decision pending
issuance of a final rule in Docket No. RSPA-98-4952 (HM-223),
``Applicability of the Hazardous Materials regulations to Loading,
Unloading, and Storage.'' See 63 FR at 67507, 64 FR at 33951. RSPA
declined to do so, but noted the City's concerns about ``in-transit
facilities'' and the stated interest of the HFD ``that the same fire
protection standards apply to both (1) the buildings and other
facilities where hazardous materials are stored for short times in the
course of transportation and (2) the facilities where hazardous
materials are stored and used outside of transporation.'' 64 FR at
33951.
In the recently-issued final rule in HM-223, RSPA has reaffirmed
that ``storage incidental to movement of a hazardous material'' is a
``transportation function,'' and the HMR apply to the ``[s]torage if a
* * * package containing a hazardous material by any person between the
time that a carrier takes possession of the hazardous material for the
purpose of transporting it until the package containing the hazardous
material is physically delivered to the destination indicated on a
shipping document, package marking, or other medium * * *'' 49 CFR
171.1(c)(4), as added in 68 FR 61906, 61938 (Oct. 30, 2003); ``see
also'' the definition of ``storage incidental to movement'' added to
Sec. 171.8. Id. at 61940-41. RSPA also reaffirmed in new Sec.
171.1(f)(1) that State and local requirements may apply to a ``facility
at which pre-transportation or transportation functions are
performed,'' but that those State and local requirements remain subject
to preemption under the criteria set forth in 49 U.S.C. 5125 (discussed
in part II, below). Id. at 61938.
As stated in the preamble to the final rule,
Unless the Secretary waives preemption, the preemption
provisions of Federal hazmat law effectively preclude State, local,
and tribal governments from regulating transportation functions, as
defined in this final rule, in a manner that differs from the
Federal requirements if the non-Federal requirement is not
authorized by another Federal law and the non-Federal requirement
fails the dual compliance, obstacle, or covered subject test.
Examples of such transportation functions include:* * * (4) storage
of a hazardous material between the time that a carrier takes
possession of the material until it is delivered to its destination
as indicated on shipping documentation.
Id. at 61924. Thus, ``the definitions adopted in this final rule permit
other Federal agencies, States, and local governments to exercise their
legitimate regulatory roles at fixed facilities,'' but, as expressed in
one comment in the HM-223 rulemaking proceeding, ``[u]niformity,
clarity, and consistency are essential when addressing the * * *
storage of hazardous materials in intrastate and interstate commerce.''
Id. at 61915. In this regard, RSPA has not broken new ground in HM-223
but simply set forth principles ``consistent with previous
administrative determinations and letters of interpretation concerning
the applicability of the HMR to hazardous materials stored incidental
to movement.'' Id., at 61919.
In PD-14(R), RSPA addressed the provisions in the prior edition of
the Fire Code that excepted the ``[t]ransportation of flammable and
combustible liquids when in accordance with DOT regulations on file
with and approved by DOT'' (In Sec. 7901.1.1), and for ``[o]ff site
hazardous materials transportation in accordance with DOT
requirements'' (in Sec. 8001.1.1). 63 FR at 67507, 67510, 64 FR at
33950, 33951. The current edition of the Fire Code has retained the
exception in Sec. 7901.1.1 with respect to flammable and combustible
liquids, but eliminated the previous exception in Sec. 8001.1.1.
Accordingly, to the extent that flammable and combustible liquids are
stored in the course of transportation, they cannot be considered
subject to any requirements in Article 79 of the Fire Code. 63 FR at
67510, 64 FR at 33951. The Fire Code also contains ``exceptions'' in
Secs. 105.8.f.3, 105.8.h.1, and 7901.3.1 that ``A permit is not
required for any activity when the requirement of local permits is
preempted by federal or state law.''
The text of Air France's application is set forth in Appendix A,
and the complete application including the exhibits is available in the
Dockets Office, U.S. Department of Transportation, room PL-401, 400
Seventh Street, SW., Washington, DC 20590-0001, and on-line through the
home page of DOT's Docket Management System, at http://dms.dot.gov. A
copy of the exhibits will be provided without charge upon request to
Mr. Hilder (see FOR FURTHER INFORMATION CONTACT above).
In summary, Air France argues that both (1) the requirements to
submit an HMMP and HMIS in order to obtain a permit to store hazardous
materials at IAH for a short period in the course of transportation and
(2) the requirement to store these materials in storage cabinets during
the time they are at IAH create obstacles to accomplishing and carrying
out the HMR because of the potential for unnecessary delay or diversion
in their transportation for the reasons set forth in prior
inconsistency rulings, preemption determinations, and court decisions.
Air France also argues that the requirement for storage cabinets does
not advance the safe transportation of hazardous materials because (1)
it is not applied in the same manner to non-transportation facilities
at which the same materials are stored, (2) it increases the number of
times hazardous materials are handled, increasing the risk of an
accident or incident, and (3) it conflicts with the HMR's requirements
for separation and segregation of hazardous materials.
II. Federal Preemption
Section 5125 or 49 U.S.C. contains express preemption provisions
that are relevant to this proceeding. 66 FR at 41933-34. As amended by
Section 1711 of the Homeland Security Act of 2002 (Pub. L. 107-296, 116
Stat. 2319), 49 U.S.C. 5125(a) provides that--in the absence of a
waiver of preemption by DOT under Sec. 5125(e) or specific
[[Page 64416]]
authority in another Federal law--a requirement of a State, political
subdivision of a State, or Indian tribe is preempted if
(1) Complying with a requirement of the State, political
subdivision, or tribe and a requirement of this chapter, a
regulation prescribed under this chapter, or a hazardous materials
transportation security regulation or directive issued by the
Secretary of Homeland Security is not possible; or
(2) The requirement of the State, political subdivision, or
tribe, as applied or enforced, is an obstacle to accomplishing and
carrying out this chapter, a regulation prescribed under this
chapter, or a hazardous materials transportation security regulation
or directive issued by the Secretary of Homeland Security.
These two paragraphs set forth the ``dual compliance'' and
``obstacle'' criteria that RSPA had applied in issuing inconsistency
rulings prior to 1990, under the original preemption provision in the
Hazardous Materials Transportation Act (HMTA). Pub. L. 93-633 112(a),
88 Stat. 2161 (1975). The dual compliance and obstacle criteria are
based on U.S. Supreme Court decisions on preemption. Hines v.
Davidowitz, 312 U.S. 52 (1941); Florida Lime & Avocado Growers, Inc. v.
Paul, 373 U.S. 132 (1963); Ray v. Atlantic Richfield, Inc., 435 U.S.
151 (1978).
Subsection (b)(1) of 49 U.S.C. 5125 provides that a non-Federal
requirement concerning any of the following subjects is preempted--
unless authorized by another Federal law or DOT grants a waiver of
preemption--when the non-Federal requirement is not ``substantively the
same as'' a provision of Federal hazardous material transportation law,
a regulation prescribed under that law, or a hazardous materials
security regulation or directive issued by the Secretary of Homeland
Security:
(A) The designation, description, and classification of
hazardous material.
(B) The packing, repacking, handling, labeling, marking, and
placarding of hazardous material.
(C) The preparation, execution, and use of shipping documents
related to hazardous material and requirements related to the
number, contents, and placement of those documents.
(D) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material.
(E) The design, manufacturing, fabricating, marking,
maintenance, reconditioning, repairing, or testing of a packaging or
a container represented, marked, certified, or sold as qualified for
use in transporting hazardous material.
To be ``substantively the same,'' the non-Federal requirement must
conform ``in every significant respect to the Federal requirement.
Editorial and other similar de minimis changes are permitted.'' 49 CFR
107.202(d).
Last year's amendments to the preemption provisions in 49 U.S.C.
5125 reaffirmed Congress's long-standing view that a single body of
uniform Federal regulations promotes safety (including security) in the
transportation of hazardous materials. Almost 30 years ago, when it was
considering the HMTA, the Senate Commerce Committee ``endorse[d] the
principle of preemption in order to preclude a multiplicity of State
and local regulations and the potential for varying as well as
conflicting regulations in the area of hazardous materials
transportation.'' S. Rep. No. 1102, 93rd Cong. 2nd Sess. 37 (1974).
When it expanded the preemption provisions in 1990, Congress
specifically found that:
(3) Many States and localities have enacted laws and regulations
which vary from Federal laws and regulations pertaining to the
transportation of hazardous materials, thereby creating the
potential for unreasonable hazards in other jurisdictions and
confounding shippers and carriers which attempt to comply with
multiple and conflicting registration, permitting, routing,
notification, and other regulatory requirements,
(4) Because of the potential risks to life, property, and the
environment posed by unintentional releases of hazardous materials,
consistency in laws and regulations governing the transportation of
hazardous materials is necessary and desirable,
(5) In order to achieve greater uniformity and to promote the
public health, welfare, and safety at all levels, Federal standards
for regulating the transportation of hazardous materials in
intrastate, interstate, and foreign commerce are necessary and
desirable.
Pub. L. 101-615 2, 104 Stat. 3244. (In 1994, Congress revised, codified
and enacted the HMTA ``without substantive change,'' at 49 U.S.C.
Chapter 51. Pub. L. 103-272, 108 Stat. 745.) A United States Court of
Appeals has found that uniformity was the ``linchpin'' in the design of
the Federal laws governing the transportation of hazardous materials.
Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1575 (10th Cir.
1991).
III. Preemption Determinations
Under 49 U.S.C. 5125(d)(1), any person (including a State,
political subdivision of a State, or Indian tribe) directly affected by
a requirement of a State, political subdivision or tribe may apply to
the Secretary of Transportation for a determination whether the
requirement is preempted. The Secretary of Transportation has delegated
authority to RSPA to make determinations of preemption, except for
those that concern highway routing (which have been delegated to the
Federal Motor Carrier Safety Administration). 49 CFR 1.53(b).
Section 5125(d)(1) requires that notice of an application for a
preemption determination must be published in the Federal Register.
Following the receipt and consideration of written comments, RSPA will
publish its determination in the Federal Register. See 49 CFR 107.209.
A short period of time is allowed for filing of petitions for
reconsideration. 49 CFR 107.211. Any party to the proceeding may seek
judicial review in a Federal district court. 49 U.S.C. 5125(f).
Preemption determinations do not address issues of preemption
arising under the Commerce Clause, the Fifth Amendment or other
provisions of the Constitution or under statutes other than the Federal
hazardous material transportation law unless it is necessary to do so
in order to determine whether a requirement is authorized by another
Federal law, or whether a fee is ``fair'' within the meaning of 49
U.S.C. 5125(g)(1). A State, local or Indian tribe requirement is not
authorized by another Federal law merely because it is not preempted by
another Federal statute. Colorado Pub. Util. Comm'n v. Harmon, above,
951 F.2d at 1581 n.10.
In making preemption determinations under 49 U.S.C. 5125(d), RSPA
is guided by the principles and policies set forth in Executive Order
No. 13132, entitled ``Federalism.'' 64 FR 43255 (August 10, 1999).
Section 4(a) of that Executive Order authorizes preemption of State
laws only when a statute contains an express preemption provision,
there is other clear evidence that Congress intended to preempt State
law, or the exercise of State authority directly conflicts with the
exercise of Federal authority. Section 5125 contains express preemption
provisions, which RSPA has implemented through its regulations.
IV. Public Comments
All comments should be limited to whether 49 U.S.C. 5125 preempts
the Houston requirements in the Fire Code and imposed by HFD for
permits, secondary containment, and segregation, as applied to
hazardous materials handled and stored by an air carrier at an airport
during transportation. Comments should specifically address the
preemption criteria detailed in Part II, above, and set forth in detail
the manner in which these requirements are applied and enforced.
[[Page 64417]]
Issued in Washington, DC on November 4, 2003.
Robert A. McGuire,
Associate Administrator for Hazardous Materials Safety.
Appendix A
Application of Societ[eacute] Air France for a Preemption Determination
Pursuant to 49 CFR 107.203 and 49 U.S.C. 5125, Societ[eacute]
Air France (``Air France'') hereby applies for a determination that
certain permit requirements contained in the Fire Code of the City
of Houston, as well as certain secondary containment and segregation
requirements imposed by the Houston Fire Department, are preempted
under Federal hazardous materials transportation law as these
requirements are being applied to the handling or storage by Air
France of hazardous materials incidental to their movement by air at
the Air France cargo facility at George Bush Intercontinental
Airport (``IAH''), Houston, Texas.
I. Local Ordinances and Requirements at Issue
Air France seeks a Department determination that the following
local Houston Fire Code and Fire Department requirements are
preempted:
1. Sec. 105.8.h.1 and Sec. 8001.3.1. of the Fire Code--
requirement for a local permit to handle or store hazardous
materials.
2. Sec. 8001.3.2. and Appendix II-E of the Fire Code--
requirement that carriers must submit a Hazardous Materials
Management Plan (``HMMP'') as specified therein in support of a
Sec. 105.8.h.1. and Sec. 8001.3.1 permit application.
3. Sec. 8001.3.3 and Appendix II-E of the Fire Code--
requirement that carriers must submit a Hazardous Materials
Inventory Statement (``HMIS'') as specified therein in support of a
Sec. 105.8.h.1 and Sec. 8001.3.1 permit application.
4. Sec. 105.8.f.3 and Sec. 7901.3.1 of the Fire Code--
requirement for a local permit to handle or store flammable or
combustible liquids.\1\
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\1\ To the extent that a HMMP or a HMIS is required by the Fire
Department to obtain a permit to handle or store flammable or
combustible liquids under Article 79 of the Fire Code, Air France
also requests that such requirements be preempted.
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5. Sec. 8001.10.6 Sec. 8001.11.8, Sec. 7902.5.9 and Sec.
7902.1.6 of the Fire Code and requirements imposed under the Lynxs/
Air France Agreement--requirements for the use of hazardous
materials storage cabinets.
6. Sec. 8003.1.33 and Sec. 7901.8 of the Fire Code--
requirements for the secondary containment of hazardous materials
liquids and solids.
These local Houston requirements are inconsistent with Federal
hazardous materials law and specific provisions of the Hazardous
Materials Regulations (``HMR''), 49 CFR part 171-180, enforced by
the Department and adhered to by Air France in its United States
operations, including those conducted at IAH in Houston, Texas.
II. Statement of Facts
Air France is a foreign air carrier licensed and regulated by
the United States Department of Transportation (``DOT'' or
``Department'') and is authorized to transport air cargo between
points in the United States and points in France. Air France has
been providing cargo air transportation, including the
transportation of hazardous materials, at IAH since 1969. Currently,
Air France operates a daily passenger/cargo combination flight and
an all-cargo flight three times per week between IAH and Paris,
France.
Air France has applied for and received a permit from the
Houston Fire Department to handle or store hazardous materials on an
annual basis since 1979 in connection with its IAH cargo warehouse.
On June 11, 2002, Air France received the paperwork from the Houston
Fire Department to renew its permit to handle or store hazardous
materials. On this occasion, Air France was required for the first
time to submit tow additional items to renew its permit: (1) a HMMP
and (2) a HMIS. Air France had never been asked to provide these
items on any other occasion when renewing its local permit to store
or handle hazardous materials.
The City of Houston has adopted the 1997 edition of the Uniform
Fire code, with certain amendments (``Fire Code'').\2\ The
requirement for a permit to handle or store hazardous materials over
certain amounts is found in Sec. 105.8.h.1 of the Fire Code. This
section also contains a general exception which states
``EXCEPTION'': A permit is not required for any activity where the
requirement of local permits is preempted by Federal or State
law.\3\ In addition, Article 80--Hazardous Materials states that
``[p]ermits are required to store, dispense, use or handle hazardous
material in excess of quantities specified in Section 105, Permit
h.1.'' \4\ Article 80 further provides that, when required by the
fire chief, and applicant for a permit is required to submit a HMMP
and a HMIS.\5\ Fire Code Sec. 105.8.f.3 and Sec. 7901.3.1 of
Article 79--Flammable and Combustible Liquids also require a permit
to handle or store flammable or combustible liquids in excess of
certain amounts. Both of these sections also provide for an
exception where the requirement of a local permit is preempted by
Federal or State law.
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\2\ Applicable provisions of the Fire Code are attached hereto
as Exhibit 1.
\3\ Fire Code Sec. 105.8.1
\4\ Fire Code Sec. 8001.3.1
\5\ Fire Code Sec. Sec. 8001.3.2 and 8001.3.3.
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Appendix II-E, Sec. 2.1 of the Fire code requires that the HMIS
list by hazard class all hazardous materials stored in a building
and include the following information for each hazardous material
listed: (1) Hazard class; (2) common or trade name; (3) chemical
name, major constituents and concentrations if a mixture. If a
waste, the waste category; (4) Chemical Abstract Service number
found in 29 CFR; (5) whether the material is pure or a mixture and
whether the material is a solid, liquid or gas; (6) maximum
aggregate quantity stored at any one time; and (7) storage
conditions related to the storage type, temperature and pressure. An
amended HMIS is required to be provided within 30 days of the
storage of any hazardous materials which changes or adds a hazard
class or which is sufficient in quantity to cause an increase in the
quantity that exceeds 5 percent for any hazard class.\6\ Pursuant to
Column 6.2 of Section II of Figure A-II-E-1 (Sample Format)
contained in Appendix II-E, an applicant is also required to
estimate the average daily amount of hazardous material on site
during the past year.
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\6\ Fire Code App. II-E,Sec. 2.2
---------------------------------------------------------------------------
Appendix II-E, Sec. 3.2 of the Fire Code requires that the HMMP
include the following information: (1) General business information;
(2) a general site plan; (3) a building floor plan; (4) information
on hazardous materials handling; (5) information on chemical
compatibility and separation; (6) a monitoring program; (7)
inspection and record keeping; (8) employee training; and (9)
emergency response procedures.
On July 3, 2002, Air France first applied to the Houston Fire
Department for renewal of its permit to handle or store hazardous
materials at its IAH cargo facility. Air France, however, was unable
to obtain such a permit due, in part, to its inability to provide
the Houston Fire Department with the detailed information it sought
as part of the HMIS requirement. Given the nature of its operations,
the hazardous materials that are present at the Air France cargo
facility changes on a day-to-day basis (or even on an hour-to-hour
basis) at these materials are in transit and are only present for
palletization and other procedures related to their carriage by air.
All hazardous material shipments present in the Air France facility
are under active shipping papers (air waybills) and are only present
there incidental to prior or subsequent air transportation. As a
result, hazardous materials typically spend only a very short period
of time at the Air France cargo facility. In addition, Air France is
unable to predict what hazardous materials it may have in its
facility at any given time since this is a function of the hazardous
materials that its customers choose to ship.
Nevertheless, Air France has attempted to comply with the
Houston Fire Department's requirements. At the request of the
Houston Fire Department, Air France revised its HMIS and HMMP on
several occasions subsequent to its July 3, 2002 submission (the
Fire Department's rejection of Air France's submitted HMMP and HMIS
is evidenced by the Notice of Violation, dated October 23, 2002,
attached hereto as Exhibit 2). As none of these submissions were
satisfactory to the Fire Department, Air France ultimately found it
necessary to retain Loss Control Associates, Inc., a fire protection
engineering firm, to assist it in completing these forms. At the
suggestion of the Houston Fire Department, Loss Control Associates
conducted a survey of NOTOCs (Notifications to Captains) and
manifests for shipments transiting the Air France IAH cargo facility
during a prior sixth-month period in order to estimate the maximum
aggregate quantities of hazardous materials stored at any one time
as required to be provided in the HMIS. In addition, as the common
names and trade names of hazardous materials are not contained on
[[Page 64418]]
shipping papers, the engineering firm was required to contact the
numerous shippers and manufacturers of the materials in order to
obtain the information and complete the HMIS.
In addition to the permit to handle or store hazardous
materials, the Houston Fire Department also required Air France to
apply for and obtain a permit to handle or store flammable and
combustible liquids, including requiring Air France to submit an
additional HMMP and HMIS The HMMPS and HMISs prepared for Air France
by Loss Control Associates and finally accepted by the Fire
Department are attached hereto as Exhibit 3. Air France spent over
$7,000.00 in its effort to comply with the HMMP and HMIS
requirements imposed by the Houston Fire Department to obtain these
local permits. The Fire Department issued the annual permit to
handle or store hazardous materials on June 17, 2003 and issued the
annual permit to handle or store flammable and combustible liquids
on June 27, 2003 but refused to deliver the permits to Air France
until after a hazardous materials storage cabinet was installed at
the carrier's new cargo facility (discussed below). Air France
finally received both of the permits from the Houston Fire
Department on August 6, 2003 (copies of the permits issued by the
Fire Department are attached hereto as Exhibit 4). Since the permits
are for a one-year period and expire on June 17 or 27, 2004, Air
France will have to re-apply and undergo this same burdensome and
costly application procedure next year and every year thereafter.
On February 10, 2003, while Air France was attempting to comply
with the Houston Fire Department's permit requirements,
representatives of the Fire Department visited the Air France cargo
facility and cited Eric Roberts, the local Air France cargo manager,
for several alleged violations of the Fire Code, including failure
to post the required local permit for flammable liquids storage,
handling or use, and failure to provide a proper HMIS for storage of
hazardous materials. Mr. Roberts was also cited by the Fire
Department for allegedly failing to provide proper H-occupancy for
storage of flammable liquids above exempt amounts, as well as for
failing to post a valid certificate of occupancy (the citations are
attached hereto as Exhibit 5). There is a Houston municipal court
trial related to these citations scheduled for November 13, 2003.
On July 8, 2003, Air France moved into a new cargo warehouse
facility at IAH. The Lynxs Group developed the new facility for the
Houston Airport System (``HAS''), the Houston municipal department
responsible for managing the airport. Air France subleases the new
facility from the Lynxs Group. As a condition of issuing a
certificate of occupancy for the new building, the Houston Fire
Department required that a hazardous materials storage cabinet be
installed and used at the facility for the storage by Air France of
certain in transit hazardous materials. Consequently, the Lynxs
Group agreed with the Fire Department to require Air France
contractually to use a storage cabinet so that a certificate of
occupancy could be obtained for the new facility. The Lynxs Group
agreed to purchase the cabinet and finance its acquisition by
assessing Air France additional rent for a 60-month period. The cost
of the storage cabinet, including installation, was approximately
$50,000. The specific storage cabinet requirements imposed on Air
France by the Fire Department are described in the Letter Agreement
between the Lynxs Group and Air France, dated April 15, 2003
(attached hereto as Exhibit 6). The certificate of occupancy was
issued on June 27, 2003 with a notation that ``HAZARDOUS MATERIAL
ABOVE THE EXEMPT AMOUNTS SHALL BE STORED IN LOCKERS PER FIRE
MARSHALL'' (the certificate of occupancy is attached hereto as
Exhibit 7).
While the Houston Fire Department has not identified for Air
France the specific Fire Code provisions under which it has required
the installation and use of the hazardous materials storage cabinet,
various provisions of the Fire Code concern the use of such
cabinets. For example, Sec. 8001.10.6 of the Fire Code provides
that storage cabinets may be used to increase exempt amounts or to
comply with Article 80.\7\ In addition, Sec. 8001.11.8 provides
that, among certain other methods, the separation of incompatible
materials may be achieved by storing liquid and solid materials in
hazardous materials storage cabinets.\8\ Finally, while it does not
specifically address the use of hazardous materials storage
cabinets, Sec. 8003.1.3.3 provides secondary containment
requirements for buildings, rooms and areas used for the storage of
hazardous materials liquids and solids.\9\ The Fire Department has
provided Air France with a copy of Fire Code Tables 7902.3-A,7902.5-
A, 7902.5-B, 8001.15-A and 8001.15-B and indicated that these tables
contain the exempt amounts of hazardous materials above which must
be stored in the cabinet (the Fire Code tables of exempt amounts are
attached hereto as Exhibit 8).
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\7\ In addition, Sec. 7902.5.9 provides quantity limitations
and construction requirements when other sections of the Fire Code
require that liquid containers be stored in storage cabinets.
\8\ Sec. 7902.1.6 also provides that the storage of flammable
and combustible liquids are required to be separated from
incompatible hazardous materials in accordance with Sec. 8001.11.8.
\9\ Sec. 7901.8 also provides that rooms, buildings or areas
used for storage or handling of flammable and combustible liquids
shall be provided with spill control and secondary containment in
accordance with, inter alia, Sec. 8003.1.3.
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No other U.S. jurisdiction requires Air France to obtain a local
permit to store hazardous materials at its cargo warehouses located
in the U.S. Of the eleven U.S. cities Air France serves, it operates
cargo warehouse facilities at six: Boston, Chicago, Houston, Los
Angeles, Miami and Washington. In addition, no other U.S.
jurisdiction requires Air France to install and use hazardous
materials storage cabinets at any of its U.S. cargo facilities.
Air France therefore requests a determination that Sec.
105.8.h.1, Sec. 8001.3.1, Sec. 8001.3.2, Sec. 8001.3.3 and
Appendix II-E of the Fire Code are preempted to the extent that
these provisions require Air France to submit a HMMP or a HMIS in
order to obtain a local permit to handle or store hazardous
materials at its IAH cargo facility.\10\ In addition, Air France
requests that Exhibit 6 and Sec. 8001.10.6, Sec. 8001.11.8, Sec.
8003.1.3.3, Sec. 7902.5.9, Sec. 7902.1.6, Sec. 7901.8, or any
other provision of the Houston Fire Code or other independent
requirement of the Houston Fire Department, are preempted to the
extent that these requirements or provisions mandate the
installation or use of a hazardous materials storage cabinet at the
new Air France cargo facility at IAH.
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\10\ Air France also requests that the Houston Fire Department's
requirement that the carrier submit a HMMP and a HMIS in order to
obtain a permit to handle or store flammable or combustible liquids
(Sec. 105.8.f.3 and Sec. 7901.3.1) also be preempted.
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III. DOT's Preemption Authority Under Federal Hazardous Materials
Transportation Law
The Hazardous Materials Transportation Act (``HMTA''), former 49
App. U.S.C. 1801 et seq., was enacted in 1975 to give DOT greater
authority ``to protect the Nation adequately against the risks to
life and property which are inherent in the transportation of
hazardous materials in commerce.'' \11\ The HMTA ``replace[d] a
patchwork of state and federal laws and regulations concerning
hazardous materials transport with a scheme of uniform, national
regulations.'' \12\ On July 5, 1994, President Clinton signed Public
Law 103-272, codifying the provisions of the HMTA without
substantive change, which are now found at 49 U.S.C. Sec. Sec.
5101-5127.\13\
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\11\ 49 App. U.S.C. 1801.
\12\ Southern Pac. Transp. Co. v. Public Serv. Comm'n, 909 F.2d
352, 353 (9th Cir. 1990).
\13\ Pub. L. 103-272, 108 Stat. 745 (1994).
---------------------------------------------------------------------------
When Congress substantively amended the HMTA in 1990, it
specifically found that:
(3) Many States and localities have enacted laws and regulations
which vary from Federal laws and regulations pertaining to the
transportation of hazardous materials, thereby creating the
potential for unreasonable hazards in other jurisdictions and
confounding shippers and carriers which attempt to comply with
multiple and conflicting registration, permitting, routing,
notification, and other regulatory requirements,
(4) Because of the potential risk to life, property, and the
environment posed by unintentional releases of hazardous materials,
consistency in laws and regulations governing the transportation of
hazardous materials is necessary and desirable,
(5) In order to achieve greater uniformity and to promote the
public health, welfare, and safety at all levels, Federal standards
for regulating the transportation of hazardous materials in
intrastate, interstate, and foreign commerce are necessary and
desirable.\14\
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\14\ Pub. L. 101-615, Sec. 2, 104 Stat. 3244 (1990) (emphasis
added.)
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In amending the HMTA, Congress affirmed that ``uniformity was
the linchpin'' of the statute.\15\ Accordingly, Congress gave DOT
the authority to preempt a requirement of a
[[Page 64419]]
State, political subdivision of a State, or an Indian tribe where:
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\15\ Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1575
(10th Cir. 1991).
---------------------------------------------------------------------------
(1) Complying with such a requirement and a requirement of this
chapter [49 U.S.C. 5101 et seq.], a regulation prescribed under this
chapter, or a hazardous materials transportation security regulation
or directive issued by the Secretary of Homeland Security is not
possible (the ``dual compliance test''); or
(2) Such a requirement, as applied or enforced, is an obstacle
to accompanying and carrying out this chapter, a regulation
prescribed under this chapter, or a hazardous materials
transportation security regulations or directive issued by the
Secretary of Homeland Security (the ``obstacle test'').\16\
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\16\ See 49 U.S.C. 5125(a)(1) and (2).
---------------------------------------------------------------------------
Congress also gave DOT the authority to preempt a law,
regulation, order, or other requirement of a State, political
subdivision of a State, or Indian tribe concerning five covered
subjects, including: (A) the designation, description, and
classification of hazardous material and (B) the packaging,
repackaging, handling, labeling, marking, and placarding of
hazardous material, that are not substantively the same as a
provision of this chapter, a regulation prescribed under this
chapter, or a hazardous materials transportation security regulation
or directive issued by the Secretary of Homeland Security (the
``covered subjects test'').\17\
---------------------------------------------------------------------------
\17\ See 49 U.S.C. 5125(b)(1)(A) and (B).
---------------------------------------------------------------------------
The Research and Special Programs Administration (``RSPA'') has
enacted regulations under which ``any person . . . directly affected
by any requirement of a State, political subdivision, or Indian
tribe may apply for a determination as to whether that requirements
is preempted under 49 U.S.C. 5125'' \18\ The standards established
by RSPA for determining whether a requirement of a State, political
subdivision, or Indian tribe is preempted are essentially the same
as the standards stated in 49 U.S.C. 5125(a)(1) and (2) and
(b)(1).\19\ For the purpose of making preemption determinations,
RSPA has defined ``substantially the same'' to mean ``that the non-
Federal requirement conforms in every significant respect to the
Federal requirement.'' \20\
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\18\ 49 CFR 107.201(a)(1).
\19\ See 49 CFR 107.202(a) and (b).
\20\ 49 CFR 107.202(d).
---------------------------------------------------------------------------
The HMR have been promulgated in accordance with the HMTA's
direction that the Secretary of Transportation ``prescribe
regulations for the safe transportation of hazardous materials in
intrastate, interstate, and foreign commerce'' \21\ The HMR ``shall
govern safety aspects of the transportation of hazardous material
the Secretary considers appropriate.'' \22\ ``Transportation'' is
defined as ``the movement of property and loading, unloading, or
storage incidental to the movement.'' \23\
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\21\ 49 U.S.C. 5103(b).
\22\ 49 U.S.C. 5103(b)(1a)(B).
\23\ 49 U.S.C. Sec. 5102(12) (emphasis added). Air France is
aware that the Department has issued a Notice of Proposed Rulemaking
seeking to clarify the applicability of the HMR to specific
functions and activities, including loading, unloading and storage
of hazardous materials during transportation. Docket No. RSPA-98-
4952 (HM-223), 66 FR 32420 (June 14, 2001). Under the proposed rule,
``storage incidental to movement'' would be defined as:
``Storage of a transport vehicle, freight container, or package
containing a hazardous material between the time that a carrier
takes physical possession of the hazardous material for the purpose
transporting it until the package containing the hazardous material
is physically delivered to the destination indicated on a shipping
document, package marking, or other medium. * * *'' 66 Fed. Reg. at
32448.
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IV. The Requirements Contained in the Houston Fire Code To Submit a
Hazardous Materials Management Plan and a Hazardous Materials
Inventory Statement in Order To Obtain a Permit To Handle or Store
Hazardous Materials Should Be Preempted in Accordance With DOT
Precedent as an Obstacle to the Execution of the HMTA and the HMR
In Inconsistency Ruling No. IR-28 (San Jose), 55 FR 8884 (March
8, 1990), RSPA held that a local ordinance requiring the submission
of a HMMP and a HMIS in order to obtain a permit to store hazardous
materials incidental to transportation is an obstacle to the
execution of the HMTA and the HMR and thus preempted. Since the
Houston Fire Department is imposing virtually identical HMMP and
HMIS requirements upon Air France in order for the carrier to obtain
a permit to handle or store in transit hazardous materials at its
cargo facility at IAH, these requirements should similarly be
preempted in accordance with IR-28 (San Jose).
The Hazardous Materials Storage Ordinance at issue in IR-28,
which was contained in the San Jose Municipal Code, required Yellow
Freight System, Inc., (``Yellow Freight'') to obtain a Hazardous
Materials Storage Permit (``HMSP'') and submit a HMMP to operate its
expanded trucking terminal.\24\ Among several other items, San Jose
required that a HMIS, including names, hazard classes and total
quantities, be included in the HMMP.\25\ Yellow Freight argued that
the fluid nature of the commerce through its facility made it
impossible to comply with San Jose's inventory requirements.\26\
---------------------------------------------------------------------------
\24\ See id at 8885.
\25\ See id.
\26\ See id at 8888.
---------------------------------------------------------------------------
While RSPA's Director of the Office of Hazardous Materials
Transportation noted that ``State and local permits for hazardous
materials transportation are not per se inconsistent [and] their
consistency depends upon the nature of their requirements[,]'' \27\
the Director went on to state that:
---------------------------------------------------------------------------
\27\ Id at 8890 (citation omitted).
a state or local permitting system which prohibits or requires
certain hazardous materials transportation activities depending upon
whether a permit has been issued (regardless of whether the activity
is in compliance with the HMR), applies to selected hazardous
materials * * * involves extensive information and documentation
requirements [such as a HMMP and a HMIS], and contains considerable
discretion as to permit issuance, is inconsistent with the HMTA and
the HMR.
`Cumulatively, these factors constitute unauthorized prior
restraints on shipments of hazardous materials that are
presumptively safe based on their compliance with Federal
regulations.' \28\
\28\ Id (quoting Inconsistency Ruling No. IR-19 (the
Inconsistency Ruling underlying the Ninth Circuit's decision in
Southern Pac. Transp. Co. v. Public Serv. Comm'n of Nevada, 909 F.
2d 352 (9th Cir. 1990) discussed below).
---------------------------------------------------------------------------
The Director concluded that ``the City's discretionary and
burdensome permit/approval requirements for the storage of hazardous
materials incidental to their transportation (e.g., at motor carrier
terminals) are inconsistent and thus preempted.'' \29\
---------------------------------------------------------------------------
\29\ Id at 8890-91.
---------------------------------------------------------------------------
With respect to San Jose's HMMP and HMIS requirement, the
Director noted that ``[i]nformation and documentation requirements
as prerequisites to hazardous materials transportation have been
considered on many prior occasions. Where such requirements exceed
Federal requirements, they have been found to create potential delay
or diversion of hazardous materials transportation, to constitute an
obstacle to the execution of the HMTA and the HMR, and thus to be
inconsistent.'' \30\ The Director stated that ``the HMTA and HMR
provide sufficient information and documentation requirements for
the safe transportation of hazardous materials; state and local
requirements in excess of them constitute obstacles to
implementation of the HMTA and HMR and thus are inconsistent with
them.'' \31\ The Director went on to find that:
---------------------------------------------------------------------------
\30\ Id at 8891.
\31\ Id (citing IR-19).
the City of San Jose has imposed extensive (practically exhaustive),
extremely detailed, burdensome, open-ended, vague and impossible-to-
comply-with information and documentation requirements as a
condition precedent to, inter alia, the storage of hazardous
materials incidental to the transportation thereof without regard to
whether that transportation-related storage is in compliance with
the HMR. For example, the detailed information required to be
provided concerning the identity and quantity of hazardous materials
(and other materials) which a transportation carrier might store at
its facility during a given year is impossible to compile and
provide in advance because a common carrier is at the mercy of its
customers, including the general public, who may without advance
notice offer to the carrier for transportation virtually any
quantity of any of the thousands of hazardous materials listed in,
---------------------------------------------------------------------------
or covered by, the HMR.\32\
\32\ Id (emphasis added).
---------------------------------------------------------------------------
The Director also found that San Jose's information and
documentation requirements, insofar as they relate to hazardous
materials to be stored at a facility incidental to transportation,
constitute an inconsistent advance notice requirement since they
have the potential to delay and redirect traffic.\33\
---------------------------------------------------------------------------
\33\ See id (citing IR-8 (Appeal) and IR-16).
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[[Page 64420]]
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As the Director correctly explained:
It is impossible for a common carrier to comply with the City's
requirements concerning advance identification of hazardous
materials and quantities thereof. As a result, when the carrier/
facility operator receives or is offered hazardous materials not
previously identified or in quantities exceeding those projected, it
faces a dilemma: Whether to comply with its obligations under the
HMR to transport the materials without delay, to hold the materials
pending an amended application to the City, to divert the materials
to another jurisdiction for any necessary transportation-related
storage, or to violate its common carrier obligation by refusing to
accept any such materials.\34\
\34\ Id at 8892.
---------------------------------------------------------------------------
The Director also found that ``the City's information
requirements are inconsistent with the HMR insofar as they require
emergency response information as a prerequisite to the loading,
unloading, and storage of hazardous materials incidental to their
transportation.'' \35\ In reaching this conclusion, the Director
stated that:
---------------------------------------------------------------------------
\35\ Id.
With the promulgation of these regulations [49 CFR Part 172,
subpart G], RSPA's emergency response information requirements for
hazardous materials transportation, including the loading,
unloading, or storage incidental to such transportation exclusively
occupy that field. Therefore, state and local requirements not
identical to these HMR provisions will cause confusion concerning
the nature of such requirements, undermine compliance with the HMR
requirements, constitute obstacles to implementation of those
---------------------------------------------------------------------------
provisions, and thus be inconsistent and preempted.\36\
\36\ Id.
---------------------------------------------------------------------------
The rationale used by the Department to preempt the HMMP and
HMIS permit requirements in IR-28 (San Jose) applies with equal
force with respect to the present Houston requirements. In IR-28
(San Jose), the Department found that where extensive information
and documentation is required in order to obtain a permit (such as
with a HMMP and a HMIS), such requirements might constitute an
unauthorized prior restraint on the shipment of hazardous materials.
With respect to the HMIS, the Department held that detailed
information concerning the identity and quantity of hazardous
materials that a carrier might store at its facility incidental to
transportation is impossible to compile and provide in advance since
such information depends on what the carrier's customers choose to
ship. The Department also found that extensive information and
documentation requirements, insofar as they relate to hazardous
materials to be stored at a facility incidental to transportation,
might constitute an inconsistent advanced notice requirement since
they have the potential to delay and redirect traffic. Finally, DOT
found that the HMR exclusively occupy the field of emergency
response information requirements for the transportation of
hazardous materials. In this Application, Air France respectfully
request that RSPA follow its decision in IR-28 (San Jose) by holding
that the virtually identical HMMP and HMIS permit requirements
contained in the Houston Fire Code are similarly incidental to their
movement by air at the Air France cargo facility at IAH.
A similar Department Inconsistency Ruling was upheld by the
Ninth Circuit Court of Appeals in Southern Pac. Transp. Co. v.
Public Serv. Comm'n of Nevada, 909 F.2d 352 (9th Cir. 1990). There
the Ninth Circuit reversed an order of the district court granting
summary judgment to the Public Service Commission of Nevada
(``PSC'') and reinstated the DOT Inconsistency Ruling. In that case,
Southern Pacific Transportation Company (``SPTC'') argued that PSC
regulations requiring rail carriers to obtain an annual permit prior
to loading, unloading, transferring or storing hazardous material on
railroad property within the state of Nevada were preempted by the
HMTA and the Federal Railroad Safety Act.\37\ In order to obtain the
permit, applicants were required to submit, among several other
items, ``[a] summary of all hazardous material carried by the
railroad during the proceeding 12 months[.]'' \38\
---------------------------------------------------------------------------
\37\ See id at 353.
\38\ Id at 354 (citing Nev. Admin. Code Sec. 705.330(e)).
---------------------------------------------------------------------------
In reversing the district court's decision for failing to accord
sufficient deference to the underlying Inconsistency Ruling issued
by DOT (IR-19 (Appeal), 53 FR 11600 (April 7, 1988)), the Ninth
Circuit stated that:
The DOT found that its regulations and the Nevada regulations
address many of the same matters. For instance, it found that
several of its own regulations already addressed storage incident to
the transportation of hazardous materials, the primary focus of the
Nevada regulations * * * Because the Nevada regulations address
matters already covered by the federal regulations, impose
substantial burdens on applicants, and create the risk of confusion,
conflicts, and delays, the DOT determined that they were
inconsistent with the federal regulations.\39\
\39\ Id at 355-56.
---------------------------------------------------------------------------
The court went on to cite numerous HMR provisions that address
loading, unloading, and storage (including temporary storage) of
hazardous materials during carriage by rail, concluding that ``[a]t
least one Federal court has recently held that `the extent of
Federal regulation in the area of transportation, loading, unloading
and storage of hazardous materials is comprehensive.' '' \40\ The
court found that ``[d]espite DOT's extensive regulation of loading,
unloading, transfer and storage incidental to the transportation of
hazardous materials, the Nevada regulations require a carrier to
obtain an annual permit prior to engaging in these activities within
the State of Nevada. The Nevada regulations, thus, create a separate
regulatory regime for these activities, fostering confusion and
frustrating Congress' goal of developing a uniform, national scheme
of regulation.'' \41\ In addition, the court noted that ``Federal
regulations also impose specific information and documentation
requirements deemed necessary for the safe transportation of
hazardous materials. * * *'' and that the Nevada regulations
``indicate the State's attempt to regulate areas clearly addressed
in the Federal regulations.'' \42\
---------------------------------------------------------------------------
\40\ Id at 357 (quoting Consolidated Rail Corp. v. Bayonne, 724
F. Supp. 320, 330 (D.N.J. 1989)).
\41\ Id at 358.
\42\ Id.
---------------------------------------------------------------------------
The same can be said of the HMMP and the HMIS requirements
contained in the Houston Fire Code. For example, despite the fact
that 49 CFR 172.600(c)(2) requires emergency response information to
be immediately available to any Federal, State or local government
agency representative that responds to an incident involving a
hazardous material (including providing the basic description and
technical name of the hazardous material as required by Sec. Sec.
172.202 and 172.203(k), the ICAO Technical Instruction, the IMDG
Code or the TDR Regulations as required by Sec. 172.602(a)(1)), Air
France is also required by the Fire Code to submit a HMIS on which
it must list all hazardous materials that it might store in its
cargo facility, including the common names or trade names of the
hazardous materials and the maximum aggregate quantity stored at any
one time.\43\ In addition to being impossible to accurately compile
and provide in advance because the amount and type of hazardous
materials that are present at the Air France cargo facility is a
function of what its customers choose to ship, such a requirement
also indicates an attempt by the Houston Fire Department to regulate
an area (emergency response information) that is already addressed
in the HMR.
---------------------------------------------------------------------------
\43\ Fire Code App. II-E, Sec. 2.1
---------------------------------------------------------------------------
Moreover, the confusion that the court in Southern Pac.
suggested would be fostered by two separate regulatory regimes is
illustrated by the inability of Air France to comply with the HMIS
requirement to provide common names or trade names for the hazardous
material shipped through its cargo facility at IAH. Neither the
common names nor trade names of hazardous materials are required by
the HMR to be included on a carrier's shipping papers. Air France
should not be required to retain a fire protection engineering firm
to conduct a survey of prior shipping papers and investigate the
common names and trade names of the hazardous materials with the
shippers and manufacturers of the materials in order to provide this
information to the Fire Department. At best, conducting such a time-
consuming and expensive survey only results in a sampling of the
common names and trade names of the various hazardous materials
shipped through the Air France warehouse and might not even
accurately reflect which materials are actually present in the
facility at any given time. For these reasons, the local Houston
permit, HMIS and HMMP requirements should be preempted by the
Department as obstacles to the execution of the HMTA and the HMR.
Interestingly, the Houston Fire Code permit requirements have
been the subject of a prior DOT preemption proceeding. In Preemption
Determination No. PD-14(R), 64 FR 33949 (June 24, 1999), RSPA
affirmed its earlier Preemption Determination (No. PD-14(R), 63
[[Page 64421]]
FR 67506 (December 7, 1998)) finding that certain provisions of the
Houston Fire Code (the 1994 edition of the Uniform Fire Code),
including the permit requirements in Sec. 105.8.h.1, Sec.
8001.3.1, Sec. 105.8.f.3 and Sec. 7901.3.1 were not preempted (to
the extent that these sections require a permit for a vehicle to
transport hazardous materials in commerce within the City) because
the local Fire Code provisions by explicit exception did not apply
to the transportation of hazardous materials subject to the HMR.\44\
In PD-14(R), the Association of Waste Hazardous Materials
Transporters (``AWHMT'') had challenged certain provisions of the
Fire Code, including provisions requiring inspections and fees in
order to obtain an annual permit for cargo tank motor vehicles to
pickup or deliver hazardous materials within the City.\45\ In that
case, RSPA reasoned that the specific exceptions in Sec. Sec.
7901.1.1 and 8001.1.1 for transportation ``in accordance with'' DOT
regulations makes it clear that the Fire Code is not intended to
apply to vehicles when they are transporting hazardous materials
subject to the HMR.\46\ RSPA therefore concluded that there was no
inconsistency with Federal hazardous material transportation law or
the HMR when the Fire Code is properly applied in this manner.\47\
---------------------------------------------------------------------------
\44\ 64 FR at 33953.
\45\ See id at 33949.
\46\ See id at 33951.
\47\ See id.
---------------------------------------------------------------------------
In reaching this conclusion, RSPA noted that:
the City specifically acknowledged that the `express exceptions for
DOT-regulated activities' in Secs. 7901.1.1 and 8001.1.1 mean that
`the Fire Code should not be read as applicable to over-the-road
(off-site) transportation * * *'. The City elaborated that `permits
will not be required for DOT-regulated activities'[.] \48\
---------------------------------------------------------------------------
\48\ Id (emphasis added).
In its initial Preemption Determination, RSPA noted that the
City had stopped requiring permits of vehicles meeting DOT
requirements.\49\ RSPA concluded that [b]ecause the City now
correctly equates the exceptions in the Houston Fire Code for
vehicles `meeting DOT requirements' with `subject to regulation by
DOT' under the HMR, AWHMT's challenges to these requirements have
become moot.'' \50\
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\49\ See (No. PD-14(R), 63 FR at 67510.
\50\ 64 FR at 33951.
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While AWHMT did not challenge the City's requirements that apply
to a facility that stores hazardous materials, as opposed to
vehicles that move those materials, RSPA nevertheless undertook a
discussion of the issue stating that:
RSPA has long encouraged States and localities to adopt and
enforce requirements on the transportation of hazardous materials
that are consistent with the HMR. See, e.g., PD-12(R), 60 FR at
62530. This applies to storage that is incidental to the movement of
hazardous materials in commerce, as well as the actual movement of
those materials. The enforceability of non-Federal requirements on
`incidental' storage depends on the consistency of those
requirements with the HMR and, of course, the applicability of the
requirements themselves in terms of exceptions such as Secs.
7901.1.1 and 8001.1.1 of the Uniform Fire Code.\51\
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\51\ Id at 33952 (emphasis added).
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Citing IR-28 (San Jose), RSPA reiterated its position that:
detailed information required to be provided concerning the identity
and quantity of hazardous materials (and other materials) which a
transportation carrier might store at its facility during a given
year is impossible to compile and provide in advance because a
common carrier is at the mercy of its customers, including the
general public, who may without advance notice offer to the carrier
virtually any quantity of any of the thousands of hazardous
materials listed in, or covered by, the HMR.52
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\52\Id.
RSPA concluded that ``[t]o to the extent that the exceptions in
Secs. 7901.1.1 and 8001.1.1 mean that provisions of the Uniform Fire
Code do not apply to transportation of hazardous materials in
commerce, including incidental storage, that result derives from the
plain language of the Uniform Fire Code and not from any
inconsistency with the HMR.\53\
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\53\ Id.
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Although RSPA held in Preemption Determination No. 14(R) that
the permit requirements contained in Sec. 105.8.h.1, Sec.
8001.3.1, Sec. 105.8.f.3 and Sec. 7901.3.1 of the Fire Code were
not preempted by Federal hazardous materials law (to the extent that
these sections require a permit for a vehicle to transport hazardous
materials in commerce within the City), RSPA's holding rested on the
exceptions contained in the Fire Code that permits are not required
for transportation of hazardous materials in accordance with DOT
requirements and the fact that the city had stopped requiring
permits for the activities in question.
In addition, in PD-14(R), RSPA specifically noted that the
enforceability of non-Federal requirements on incidental storage
depends on the consistency of those requirements with the HMR and
the applicability of the requirements themselves in terms of
exceptions contained in the Houston Fire Code. The Fire Department,
however, assuredly is not enforcing its permit requirements in
accordance with the express terms of the Houston Fire Code (i.e.,
the exceptions contained in Sec. 105.8.h.1, Sec. 105.8.f.3 and
Sec. 7901.3.1 for activity where the requirement for a local permit
has been preempted by Federal or state law) since it is enforcing
the permit requirements against carriers such as Air France under
circumstances that have already been determined to be preempted,
including requiring the submission of a HMMP and a HMIS (see e.g.,
IR-28 (San Jose) and Southern Pac. Transp. Co., 909 F.2d 352 (9th
Cir. 1990)).
V. The Fire Department's Hazardous Materials Storage Cabinet
Requirement Should Also Be Preempted as an Obstacle to the
Execution of the HMTA and the HMR
The hazardous materials storage cabinet requirement imposed by
the Houston Fire Department on Air France pursuant to Exhibit 6
should also be preempted by the HMTA and the HMR.\54\ This
requirement is an obstacle to compliance with specific HMR
provisions and conflict with the Department's ruling in IR-28 (San
Jose).
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\54\ Air France also requests that Fire Code Sec. 8001.10.6,
Sec. 8001.11.8, Sec. 8003.1.3.3, Sec. 7901.8, Sec. 7902.5.9 and
Sec. 7902.1.6 be preempted to the extent that the Fire Department
relies on these provisions to require Air France to use a hazardous
materials storage cabinet.
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In IR-28 (San Jose), RSPA noted that ``state or local
prohibition of transportation-related storage at places where, and
at times when, the HMR allow such storage is inconsistent with the
HMTA and the HMR.'' \55\ In that case, Yellow Freight had complained
that the City of San Jose desired to have every shipment of
hazardous material that is not moving directly across the dock into
an immediately available vehicle moved instead into one of a series
of specially constructed and segregated storage bunkers, with
materials divided by hazard classification.\56\ Yellow Freight
maintained that the movement of these materials in and out of such
bunkers would cause confusion, delay and safety problems for its
employees.\57\
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\55\ 55 FR at 8893 (citing IR-19).
\56\ See id at 8888.
\57\ See id.
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In addressing the secondary containment and segregation
requirements for hazardous materials imposed by San Jose, the
Director noted that Sec. 177.848(f) (now Sec. 177.848(d)) provided
that ``[h]azardous materials must not be loaded, transported, or
stored together, except as provided in' a detailed Segregation and
Separation Chart of Hazardous Materials, which is a part of that
Section.'' \58\ Accordingly, the Director found that:
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\58\ Id at 8893.
State or local imposition of containment or segregation
requirements for the storage of hazardous materials incidental to
the transportation thereof different from, or additional to those
in, Sec. 177.848(f) of the HMR [which applies to carriage by public
highway] create confusion concerning such requirements and
[increase] the likelihood of noncompliance with Sec. 177.848(f).
Since such state or local requirements, therefore, are obstacles to
the execution of an HMR provision, they are inconsistent with the
HMR--insofar as they apply to transportation-related storage.\59\
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\59\ Id.
The Houston Fire Department's requirement that Air France use a
hazardous materials storage cabinet for the temporary storage of
certain in transit hazardous materials also has the potential to
create confusion and increase the likelihood of noncompliance with
the hazardous materials segregation and separation rules established
for air carrier cargo facilities contained in
[[Page 64422]]
Sec. 175.78 of the HMR.\60\ Air France should not be required to
choose between following the Fire Department's storage requirements
or complying with the segregation and separation requirements
contained in the HMR.
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\60\ Sec. 175.78 provides a similar hazardous materials
segregation and separation chart for air carriers (including air
carrier cargo facilities) as that found in Sec. 177.848(d).
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Let us be clear that the local Houston requirement is clearly
restricting storage that is incidental to transportation subject to
the HMR. All hazardous material shipments at the Air France IAH
facility are under active shipping papers (through air waybills);
they are in transit prior to continuing transportation by truck or
by aircraft to the ultimate consignee.
The local Houston requirement to store certain in transit
hazardous materials in a storage cabinet also has the potential to
create delays and diversions in the transportation of such
materials. Obviously, the storage cabinet required by the Fire
Department is only able to hold a limited amount of hazardous
materials, i.e., 48 55-gallon drums. When the cabinet is full (or
other incompatible hazardous materials are already stored in the
cabinet) hazardous materials may have to be shipped through other
jurisdictions using a more circuitous routing in order to reach
their final destination. Thus, the Fire Department's storage cabinet
requirement could have a direct impact on the length of time certain
shipments of hazardous materials remain in transit thereby
increasing the risk associated with their transportation. In fact,
within the first few days of using the storage cabinet, Air France
had to delay for two days the acceptance of a shipment of flammable
liquid due to the lack of space in the cabinet. As RSPA noted in IR-
28 (San Jose) ``[t]he manifest purpose of the HMTA and the Hazardous
Materials Regulations is safety in the transportation of hazardous
materials. Delay in such transportation is incongruous with safe
transportation.'' \61\
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\61\ 55 FR at 8892.
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In addition, if the Fire Department's storage cabinet
requirement is allowed to remain in place, Air France will be
required to load and unload certain hazardous materials into and out
of the cabinet increasing the number of times that the hazardous
materials are handled. As one court has recognized, ``the more
frequently hazardous material is handled during transportation, the
greater the risk of mishap. Accordingly, these provisions [the HMTA]
require that the material reach its destination as quickly as
possible, with the least amount of handling and temporary storage.''
\62\ Since the hazardous materials storage cabinet being required by
the Houston Fire Department has the potential to create delays and
diversions in the transportation of hazardous materials and will
increase the amount that the materials are required to be handled,
this requirement should be preempted as an obstacle to the execution
of the HMTA and the HMR.
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\62\ Consolidated Rail Corp. v. Bayonne, 724 F. Supp. 320, 330
(D.N.J. 1989).
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Given the obvious potential for delays and diversions in the
transportation of hazardous materials associated with the Houston
Fire Department's storage cabinet requirement, the current situation
can easily be distinguished from PD-12(R), 62 Fed. Reg. 15970 (April
3, 1997), in which RSPA reversed its earlier decision in the same
proceeding concluding that certain secondary containment
requirements of the New York State Department of Environmental
Conservation were not preempted due to a lack of information from
which to determine that the requirements actually cause delays or
diversions in the transportation of hazardous materials.
Nor is there a rational and compelling local governmental
interest for requiring Air France to use storage cabinets to store
certain in transit hazardous materials in its warehouse while not
imposing the same requirement on comparably constructed retail
establishments like a Home Depot or a Wal-Mart. According to Table
7902.5-A, Air France is required to store a shipment of paint
thinner (a class I-B flammable liquid) over 120 gallons in a storage
cabinet (the Air France facility is equipped with an approved
automatic sprinkler system), while Table 7902.5-B provides a 15,000-
gallon to 30,000-gallon exemption (depending on the size of the
store) for paint thinner stored in retail establishments. The
Houston Building Code also appears to provide an exception to the
city's H-occupancy requirements for wholesale and retail
establishments that store flammable and combustible liquids.\63\ The
irrational nature of the Fire Department's differing treatment of
these two types of facilities becomes even more apparent when one
considers that hazardous materials temporarily stored in the Air
France warehouse will have the added security of being enclosed in
DOT-approved packaging rendering them suitable for carriage by air;
hazardous materials stored in retail establishments, on the other
hand, are most likely packaged and stored in ordinary boxes or other
types of containers. Absent a rational and compelling regulatory
scheme, any claim of local governmental interest must be rejected
and the local requirement preempted as an obstacle to the execution
of the HMTA and the HMR.
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\63\ See Sec. 307.9, paragraph 4 of the Building Code of the
City of Houston, the 2000 edition of the International Building Code
as adopted with certain amendments, attached hereto as Exhibit 9.
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VI. Conclusion
Pursuant to 49 CFR 107.205(b), Air France respectfully requests
that a notice of this Application be published in the Federal
Register with an opportunity for public comment. Air France further
requests that upon consideration of the comments received and the
prior Inconsistency Rulings, Preemption Determinations and court
decisions discussed in this Application, that RSPA issue a
determination finding that: (1) the Hazardous Materials Management
Plan and Hazardous Materials Inventory Statement provisions
contained in the Houston Fire Code are preempted to the extent that
these items are required to be submitted in order for Air France to
obtain a permit to handle or store in transit hazardous materials at
its cargo facility at George Bush Intercontinental Airport; and (2)
the Houston Fire Department's requirement that Air France use a
hazardous materials storage cabinet for the storage of certain in
transit hazardous materials is preempted.
VII. Certification
Pursuant to 49 CFR 107.205(a), I hereby certify that a copy of
this Application has been sent via first class mail postage pre-paid
with an invitation to submit comments to:
Randy Rivin, Esquire, Legal Department, City of Houston, P.O. Box
1562, Houston, TX 77251-1562.
Mr. Richard M. Vacar, Director of Aviation, Bush Intercontinental
Airport, P.O. Box 60106, Department of Aviation, Houston, TX 77205-
0106.
Dated: October 15, 2003.
Respectfully submitted,
Michael F. Goldman,
L. Jeffrey Johnson,
Silverberg, Goldman & Bikoff, L.L.P., 1101 30th Street, NW., Suite
120, Washington, DC 20007. Counsel for Societ[eacute] Air France.
List of Exhibits
Exhibit 1--Applicable Houston Fire Code Provisions
Exhibit 2--Fire Department Notice of Violation, dated October 23,
2002
Exhibit 3--HMMPs and HMISs prepared for Air France by Loss Control
Associates, Inc.
Exhibit 4--City of Houston permits issued to Air France to handle or
store hazardous materials and flammable or combustible liquids
Exhibit 5--Fire Department Violation Citations, dated February 10,
2003
Exhibit 6--Letter Agreement between Lynxs Group and Air France,
dated April 15, 2003
Exhibit 7--Certificate of occupancy, issued June 27, 2003
Exhibit 8--Fire Code tables of exempt amounts
Exhibit 9--Applicable Houston Building Code Provisions
[FR Doc. 03-28254 Filed 11-12-03; 8:45 am]
BILLING CODE 4910-60-M