Friday, August 15, 2008

Federal Preemption of Hazmat Truck Routes

The conflict between a local jurisdiction’s right to protect its citizens from inadvertent exposure to hazardous materials transiting its boundaries and the Federal governments right to control interstate commerce have been much in the news lately. Last Friday the Federal Motor Carrier Safety Administration (FMCSA) published a notice in the Federal Register seeking comments about the latest conflict. The American Trucking Association (ATA) has petitioned the FMCSA to preempt the latest changes to the Boston, MA rules regarding the through traffic of hazardous materials shipped by truck through the city limits of Boston.


Federal Rules for Hazardous Material Route Designations


 In 1994 the FMCSA established rules for how states and local jurisdictions could go about designating certain thoroughfares through their areas as the sole authorized routes to transport hazardous materials by truck. These rules covered truck shipments that were neither originated or delivered in the jurisdiction. Routes that were already in place on November 14th, 1994 were grandfathered into the FMCSA route registry.


The procedures that non-federal jurisdictions had to go through to designate these hazmat routes are fairly involved, but not overly complex. They mainly deal with the notification of affected parties, coordination with adjacent affected jurisdictions. These standards are listed in 49 CFR Sec.397.71(b) and are summarized below:


  • Enhancement of public safety.
  • Public participation.
  • Consultation with others.
  • Through routing.
  • Agreement of other States; burden on commerce.
  • Timeliness.
  • Reasonable routes to terminals and other facilities.
  • Responsibility for local compliance.

Section 397.71(b)(9) provides guidance on specific things that must be considered when establishing a hazardous material transportation route. The twelve factors are listed without any priority or weighting provided. They include:


  • Population density.
  • Type of highway.
  • Types and quantities of non-radioactive hazardous material (NRHM).
  • Emergency response capabilities.
  • Results of consultation with affected persons.
  • Exposure and other risk factors.
  • Terrain considerations.
  • Continuity of routes.
  • Alternative routes.
  • Effects on commerce.
  • Climatic conditions.
  • Congestion and accident history.

ATA Petition


In their petition to the FMCSA the ATA claims that the city of Boston did not comply with the regulation described above when it changed the pre-existing hazmat routes through the city after the completion off the new I93 corridor under the city center (the Big Dig). Further more they claim that the new route and the new Hazmat permitting process have effectively prohibited the shipment off hazardous materials off all types through the downtown section off Boston. Specifically they claim that:


  • Changes were made without respect for impact upon public safety outside its own borders;
  • There was no input from neighboring jurisdictions;
  • Eliminated connectivity with adjacent hazmat routes;
  • Failed to make public notification of the proposed change; and
  • Failed to hold public hearings

Massachusetts Highway Department Petition


In response, the Massachusetts Highway Department (MHD) has submitted their own request for preemption determination. MHD is given the responsibility (by 49 CFR Sec.397.71) for enforcing these rules within the State. They are seeking guidance from FMCSA about the competing claims of the city of Boston and the ATA.


Boston claims that the existing regulations and routes are grandfathered into the system since they were in existence since 1980 and have been found acceptable by DOT and the US District Court in previous cases. They maintain that the minor route modifications are covered under those grandfather provisions. They also maintain that there have been no changes to the Hazmat Permit regulations; they have just been enforcing them more closely and refusing to accept arguments of ‘economic harm’ as justification of a through-permit.


FMCSA Request for Comments


As is fairly common in disputes like this, both sides believe that what they are doing (or want to do) is in accordance with the applicable law. Boston is trying to do what it can to protect its citizens from the dangers related to the movement of hazardous chemicals in a high traffic environment. The trucking industry wants to avoid the additional costs and hazards of driving an addition 42 miles around the center of Boston.


One final note; this is not the issue of the transportation of chlorine (well, not specifically, though chlorine is covered since it is an NRHM). Most of the comments deal with fuel and fuel oil trucks.


It will be interesting to see how this turns out. Final comments are due by September 22, 2008. 

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