PHMSA Publishes Lack of Preemption Notice

Today the Pipeline and Hazardous Materials Administrtion (PHMSA) published a notice in the Federal Register (77 FR 39567-39571) regarding the preemptive status of the Federal Hazardous Materials Regulation (HMR). The notice is in a response to a letter requesting clarification of that status in a State civil suit under common law. That request for determination was submitted in 2009 (74 FR 5723); so this is a timely response if there ever was one.

The short answer is provided in the summary:

“Federal hazardous material transportation law does not preempt a tort claim that a packaging, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material failed to meet the design, manufacturing, or marking requirements in the HMR or that a person who offered a hazardous material for transportation in commerce or transported a hazardous material in commerce failed to comply with applicable requirements in the HMR.” (77 FR 3567)

Now the claim here is complex and the legal arguments are mainly of interest only to lawyers (which once again I would like to point out that I am not), but the central issue here may have some implications for chemical facility security or cybersecurity.

First it is clear that the HMR has specific preemptive authority over State and local laws in several areas. According to this notice one of the specific areas covered under 49 USC 5912(b)(1) is:

“The designing, manufacturing, fabricating, inspecting, marking, maintaining, reconditioning, repairing, or testing a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material.”

The ruling in this notice clearly affirms that preemption but goes on to explain that:

“Federal hazardous material transportation law does not preempt tort claims that the packaging or packaging component failed to meet the design, manufacturing, or marking requirements in the HMR or that a person who offered a hazardous material for transportation in commerce or transported a hazardous material in commerce failed to comply with applicable requirements in the HMR.”

Now this legal notice only applies generally to PHMSA HMR preemption requirements and specifically only to this particular case, though it certainly establishes a precedent that will be argued in future such cases. The same general argument could be made, however, in cases where federal security regulations preempt State laws (for example CFATS).

For example if a high-risk chemical facility covered under CFATS had an approved site security plan (forget for the nonce that there is no such facility yet) and it was successfully attacked by a terrorist. Neighbors affected by that attack could argue the same lack of preemptive protection if they could prove negligence or malfeasance contributed to the success of the attack.

Or a critical infrastructure facility had a successful cyber-attack that resulted in hundreds of off-site casualties, but were covered by …. OOPS there is no cybersecurity legislation, current or in the works, that would regulate control systems at critical infrastructure facilities (excepting CFATS); so there would be no federal preemption that would have to be bypassed.