Alliance for Uniform Hazmat Transportation Procedures
Governing Board Meeting
Oklahoma City, Oklahoma
August 31-September 1, 2004
Meeting Summary
The Alliance for Uniform Hazmat Transportation Procedures consists of seven states that have implemented uniform forms and procedures for the permitting and registration of motor carriers of hazardous materials pursuant to 49 USC 5119. This approach, called the Uniform Program (UP), has been adopted by Illinois, Michigan, Minnesota, Nevada, Ohio, Oklahoma, and West Virginia. A governing board made up of member Alliance states oversees activities related to implementation and operation of the Uniform Program. The Alliance is governed by several documents including the final report of the Alliance working group to the U.S. Secretary of Transportation and the Uniform Program Administrator’s Manual. The Alliance is staffed by the National Conference of State Legislatures.
Present
Illinois-Mick Nechvatal, Cindy Bahner and Dave Walters by phone
Michigan-Larry AuBuchon by phone
Minnesota-Buzz Danzl
Ohio-John Canty
Oklahoma-Sherri Twidwell, Sherry Soliz
Nevada-Jim Rhode
West Virginia-Alan Abbott, by phone
NCSL-Jim Reed
State Reports
Alliance Chair John Canty opened the meeting and introductions were made. The first order of business was reports from the Alliance states on actions necessary in each state to incorporate program changes to achieve equivalency with the new federal permit. After a meeting with the Federal Motor Carrier Safety Administration in July, Alliance states were asked to provide information for pursuing equivalency to the federal permit, including:
- Legislative changes/rules promulgation
- Contact state MCSAP Director for cooperation with compliance reviews (CRs)
- Discuss assistance in obtaining High-Priority funds
- Discuss with state information technology folks to plug into MCMIS
- Meet with state motor carrier association if possible
Alan Abbott reported for West Virginia. He said West Virginia is fine with getting in line with federal equivalency. He had some questions about the compliance reviews. What types of CRs are the states going to be doing? The assumption is that the states will have to do the intrastate CRs. Alan had concerns about in-state manpower to do this.
He stated that with emergency rules, they could implement changes right away. Regular rulemaking will take 90-120 days. The legislature already has given the Public Service Commission (PSC) authority to implement the program.
A question raised by Alan Abbott was--How will FMCSA require states to do revocations? He said West Virginia has a due process system that must be followed.
John Canty read from the new FMCSA rule of administrative review requirements for the new federal permit seeking guidance on this question and found none.
Additional questions were raised—how will state requirements be incorporated? Will the state be able to assess penalties and fines in a CR process? Jim Rhode said suspensions in Nevada are immediate and there is an appeals process. John Canty stated that Ohio will not be going out of state to do CRs. The Motor Carrier Safety Assistance Program (MCSAP) agency in that state would be requested to do the CRs.
Alan Abbott concluded that in summary, West Virginia is in line to set up the necessary new program changes.
The Oklahoma report was made by Sherry Soliz. She said that legislation will be needed. A bill will be introduced to make changes—to change waste to materials. Once passed the Oklahoma Corporation Commission (OCC) will change its rules. The new rules could be effective as late as July 2005. Sherry has discussed this with the MCSAP agency to assist as needed. Access to the on-line motor carrier information system-- MCMIS--is no problem. She met with Dan Case of the state motor carrier association and he is in support of the proposed changes, didn’t see any opposition. Case will help push the legislation. OCC has been issuing US DOT numbers to intrastate carriers since 1998. She raised some transition questions, particularly that the timing of various states will differ. It was agreed to discuss the issue later in the meeting.
Ohio—John Canty reported that some legislative changes will be needed. Legislation will be introduced in January and be effective July 1, 2005. The wording changes are still being discussed. He thinks the CR process won’t be a problem—49 are projected to be needed. He urged other states to discuss the issue of applying for high priority funds. MCMIS is already. His agency has a good relationship with Ohio Trucking Association and expects cooperation from them.
Nevada—Jim Rhode reported that the Nevada statute will need to be changed to conform the program to either a federal rule or the Administrator’s Manual. On Part III, Jim wants to be done with it, but some questions may/will have to be carried over to Part II as it pertains to radioactive waste. The legislature is likely not open to changes relative to the radioactive waste parts. The opportunity for the state agency to make the bill request has passed, but the state trucking association can still do it. At this point there are questions about how to accomplish changes. Cooperation with MCSAP agency is anticipated. Nevada is already plugged into MCMIS. Some concern about setting up any fee netting, would want his state IT people involved.
Minnesota-Buzz Danzl reported that Minnesota is in the same boat as Nevada and Ohio--Minnesota will need to make a legislative changes to spell out the proposed Uniform program revisions. The date has passed for the agency to sponsor the bill, so they will now look to the state motor truck association to carry a bill. Buzz's agency will do the CRs, and foresees no problem completing the required CRs. They follow the FMCSA schedule. Minnesota relies on the feds for the penalties and uses an Administrative Penalty Order for intrastate fines. Minnesota could be eligible for high priority funds and is hooked into MCMIS. He will meet with the motor truck association after this meeting.
Buzz Danzl conveyed Minnesota's proposal for program changes. The new federal rule gives an opportunity to consider major substantive changes to the program. The program, as it has evolved, is neither "national" or "uniform." A new program should: (1) be administered by the individual states; (2) be based on and compatible with the new federal rule; (3) be primarily directed at addressing safety and security concerns; (4) cover a uniform set of hazardous materials and/or substances in addition to including those covered by the federal rule; and (5) be capable of automation and incorporation into CVISN architecture.
Buzz Danzl continued by saying that much has changed since the original program was developed. He said the current program does not meet the needs in Minnesota and suspects the same might be true for other member or prospective member states. He fears that if the Alliance does not act, it's just a matter of time before the federal government expands the new program and takes control away from the states. Speaking only for Minnesota, Buzz said that if the program doesn't change, the Minnesota Legislature will need to be presented with an alternative at some point.
Michigan—Larry AuBuchon reported that the news from Michigan is not good. Yes, the new CRs could be done. But there is no outcry for changes in Michigan. He said that if a new part were added to the Alliance program, perhaps another agency might pick it up. As it stands now, no push is on to make the changes needed. How to merge Michigan with the changed Alliance program is up in the air. Michigan may have to drop out. It will still regulate haz waste and liquid industrial waste. He suggested some alternatives-- another state could take on Michigan’s carriers of the 4 federal materials; or the Michigan intrastate carriers would simply go to the federal program. Another option is the trucking association may push for some agency in Michigan to do the federal materials. There is currently a noticing process for high level radioactive shipments within the Department of Environmental Quality.
Sherry Soliz mentioned that ideally, new states coming on board would have to be completely uniform. Questions arose as to how to handle states with traditionally hazardous waste only programs. Would they have to go to all hazardous materials? There are some difficulties to getting these states to expand.
Jim Rhode stated that this could all be solved if USDOT moves forward with a rule implementing 5119. This should be added to the MOU we are drafting. Buzz Danzl said the bigger issue is security of other materials besides hazardous waste. The Alliance program could be a leader on a broader hazmat security approach. He sees the reason that the feds have been slow to embrace this program is due to our lack of uniformity. The pros and cons of preemption were discussed.
Illinois—Mike Nechvatal reported that his agency’s mission was to stop hazardous waste from being dumped on the side of the road. The waste haulers forced the hazardous waste states into the Alliance program to save money. It’s a difficult fit, his agency is not a transportation safety agency. Illinois EPA will not become a hazardous materials agency, other agencies do it. The Illinois Commerce Commission (ICC) might be interested but major changes would need to be made. ICC already does registration of motor carriers. If 5119 became the law, Illinois would have to face the question or withdraw. Once the Alliance makes its changes, Illinois will make an assessment of what to do, and will meet also with trucking association at that time. Overall, uniformity is a good goal. The Illinois Department of Transportation has no interest in regulating hazmat, though they will have to do the intrastate CRs. In conclusion, Mike said that in Illinois, there seems to be no lobbying interest in broadening to all hazmat.
Letter of Intent
The Alliance Board reviewed a draft "Letter of Intent" to Bill Quade at FMCSA expressing the intent of the board to make changes to the Alliance uniform program to become equivalent to the new federal safety permit. It will be revised and sent after this meeting. Suggestions were made to take out list of current program elements and list only new changes. Some editorial changes were also suggested.
Federal Equivalency
John Canty walked through the list of Minimum Standards of Equivalency for the Alliance provided to the Alliance by FMCSA.
According to FMCSA, the Alliance program, at a minimum, must:
- Recognize the hazardous materials listed in 385.403 as permitted hazardous materials and subject motor carriers to the requirements for the minimum standard of Alliance program.
- Incorporate an application process to include the pertinent information for evaluating a motor carrier that transports the four federal permitted hazardous materials.
- Incorporate a system that only satisfactory (SAT) carriers can transport permitted hazardous materials
- During a motor carrier compliance review, evaluate the security program for a motor carrier that transports or will be transporting permitted hazardous materials.
- Incorporate a system that will check RSPA registration prior to issuing a HM permit to a motor carrier.
- Incorporate a process to suspend or revoke a HM permitted motor carrier permit. The Alliance minimum standard for suspension or revocation is not contingent upon FMCSA final rule for HM Safety Permits as long as there is some type of suspension or revocation period.
- Incorporate a system to meet the circumstances in 385.421, which lists ten grounds for revocation and suspension, that will have a means to suspend or revoke a motor carrier’s hazardous materials safety permit.
- Conduct a review of the motor carrier out-of-service and crash rate to determine if it is in the top 30 percent of the national average.
Item #1 was discussed. The question arose: Can the Alliance say it is equivalent if two states (IL and MI) likely will not be conforming, that is not covering the four federal hazmats? How do we handle this? Do other states pick up the four federal materials for IL and MI?
Larry Au Buchon speculated that most waste states would drop hazardous waste transportation if a federal rule on 5119 is promulgated. Sherry Soliz suggested that hazardous waste could be carved out for the states that do it, especially if it is purely intrastate. Discussion ensued on how to handle hazardous waste.
One suggestion was that the 4-5 full hazmat states agree to take the carriers in the 2-3 hazardous waste states for the four federal materials during an interim period. Jim Rhode suggested the interim period be tied to promulgation of 5119 rules. Perhaps another agency in IL or MI could pick up the federal materials at some point.
Discussion ensued. What are the mechanics of this? What about a carrier that is purely intrastate in MI or IL or does not travel in an Alliance state? They would go to the feds. Could the MOU say where these carriers would go? The hazmat states have no authority to issue permits to carriers that don’t travel in their state. Discussion ensued. Perhaps the Alliance is simply a clearinghouse for paperwork in these situations.
Mike Nechvatal mentioned that another option is to push back and say, we are going to make this partial equivalence. For IL and MI, the feds would issue the federal permit, plain and simple. Don’t force the waste states out now, we need new states.
Jim Rhode agreed and said the Alliance could say, until 5119 is enacted, we will use this “waiver” process. This may put pressure on the feds to enact promulgate 5119. More discussion on the history of the program, the extent of uniformity, etc continued.
A general consensus emerged that the Alliance intent is to move ahead with 5119, seek incentive funding, and get database help from FMCSA. One suggestion was to urge FMCSA to set a drop dead date for the implementation of 5119. After that state programs must be the Alliance program, or be terminated.
Some asked if the feds will buy this? It makes sense and the Alliance will be handling much of their paperwork. What about carriers that are both haz waste and hazmat? Some type of review will take place for these carriers.
John Canty suggested that since the same forms and review process is being used that a hazardous waste carrier permitted in Illinois and Michigan who also might carry the four federal hazmats would meet the federal equivalency. All agreed.
Question #2 was discussed. This seemed to be straightforward and is already included in existing Alliance procedures. To address the application process, the application revision by Sherry Soliz was reviewed. The philosophy of the revision is to downsize and simplify the application, incorporating the instructions into the application.
Item #3 addresses the permitting of "Satisfactory" carriers only. It was agreed that this change can be made in our instructions and application and review standards. A member state asked the questions: Do we change our program for all carriers to be Satisfactory? Or just the federal safety permit classes? What is the Alliance philosophy on this? Unrated carriers have 180 days to get a rating. Alan Abbott wondered if this was enough time. Jim Rhode thought that state FMCSA directors would have to give priority to these unrated carriers. What about conditional carriers? It appears that they would be suspended until they get a satisfactory rating. Would a legislative change be necessary? In Michigan yes, it’s built into the statute. There is a problem in going overnight to a Satisfactory only rating for all hazmat carriers—not enough manpower to do all the unrated or conditional carriers, plus the problem of putting a carrier out of business if it can’t get a timely rating. It was proposed and agreed that for now, to just requiring satisfactory for the federal classes and have an interim period for the other hazmat classes?
Item #4, evaluation of security program during CR will be picked up as part of the review. Training will need to be given to state folks. It was asked to place this requirement and others agreed to in the letter of intent.
Item #5, requiring RSPA registration is already a part of the Alliance program.
Item #6, suspension/revocation process is already part of Alliance procedures.
Item #7-- The Alliance has several of these grounds for suspension and revocation and will add the others.
Item #8 --Alliance states agreed to include this as part of Uniform program procedures but will need guidance from FMCSA on how to do it.
MOU
Out of discussions between Alliance officers and FMCSA at the meeting in Washington D.C July 27-28, 2004 came the idea of a memorandum of understanding (MOU) detailing how the Alliance and FMCSA would interact regarding the implementation of the federal hazmat safety permit. The draft MOU between the Alliance and FMCSA prepared by Jim Rhode was reviewed. Jim Rhode walked through the draft. The eight-page MOU covers the equivalency elements the Alliance will incorporate, the recruitment of new states with incentive funds, and FMCSA' assistance to the Alliance in developing a database, along with some boilerplate legal language. He recommended that the Alliance consider incorporating as a legal entity and that the document should be reviewed by an independent attorney.
A member state asked if the MOU could be simplified. Some wondered if the agreement could be more informal. It was suggested to identify the core elements, get FMCSA input and pull out the essence on two or three pages and place it in the letter of intent.
John Canty agreed and proposed that the Alliance boil our issues down and place it in our intent letter, use Jim Rhode’s language from the MOU. This would include:
- Implementation of 5119 to give our program teeth, deadline of January 2006.
- Grants for new states to join
- Database development and maintenance
- Directive from FMCSA headquarters to state MCSAP director for cooperation on CRs
- Directive from FMCSA to help states obtain high priority funds for assistance in implementation
- Recognize the Alliance as equivalent and recommend to other states that they work through the Alliance in achieving federal permit equivalency.
Include this as a part of the letter of intent. Jim Reed will draft letter and send out for review and vote by Alliance members.
Discussion of CVSA’s involvement in helping us ensued.
Program and application changes
The possibility of dropping Part III was suggested by Sherry Soliz. What problems might we have later with new states that may like the Part III? Several states were previously interested in this type of approach. The Alliance consensus was to leave Part III as an option for future states.
The application changes made by Sherry Soliz were addressed again. Several changes were made. Sherry argued to drop the section asking for their safety rating, since the state has to check on this anyway.
Do we include information on what will disqualify the carrier on its face? Yes
Cindy Bahner asked for an application with larger print.
Day 2 -- September 1, 2004
Outreach
Four states are interested based on John Canty’s presentation at the NCSL meeting in Salt Lake City in July. Board members will approach state agencies in these states:
Missouri, John Canty
Indiana, Sherry Soliz
Idaho, Jim Rhode
Florida, John Canty
Jim Reed will send a packet of information to the legislators who expressed interest and copy the board who will be in contact. Rich Moskowitz will be asked to contact the trucking associations in these states.
A letter to New Jersey given their recent fee problems was suggested.
Once the Alliance changes its program, a letter should be sent to states and state trucking associations marketing it as a way to meet the new federal permit and streamline state programs. Also some notification to CVSA members is appropriate.
The changes from the previous day regarding changes to the application was reviewed.
The changes are largely streamlining the old application, and becoming equivalent to the federal permit.
It was decided that the Alliance would keep the current application until the new application is fully accepted by FMCSA in a Federal Register notice.
The motion was made by Mike Nechvatal to move to equivalency with the new federal safety permit in a phased manner, while requesting a rulemaking on section 5119 to implement the Alliance program and development of the Alliance data base. It was seconded by Sherry Soliz and approved unanimously. The Alliance staff will develop the changes suggested by the Board on the application for presentation at a future meeting.
Discussion ensued about what constitutes a uniform program. Buzz Danzl argued for a uniform registration and permitting of all hazardous materials. Accommodating hazardous waste only states has made it less than uniform. He fears greater federal preemption of state programs over time. Many agreed. A transition is necessary though. The waste states need a legal way out. The board needs to make a statement on this. The ramifications for the waste states were discussed.
Jim Rhode argued for a more formal Alliance structure. He said the Alliance has no legal standing.
Discussion proceeded on how to define uniformity.
John Canty discussed a strategy going forward. If the feds won’t move forward on 5119 what does the Alliance do? Should the Alliance even exist if the desire for national uniformity is not being actively pushed? Trying to get to uniformity has been a difficult chore.
Equivalency with the federal permit is a partial step. This could be a basis for moving forward. The trucking industry has been inactive recently in advancing the goal of uniformity.
What direction should the Alliance go? Should the direction should be to require uniformity in terms of all states covering all hazmat? Bringing in the haz waste only states have made uniformity as an overall Alliance difficult.
Alliance states hope to know how the FMCSA will react soon. Even without 5119, equivalency is one step forward. Once equivalent, new states may be enticed to join the Alliance to be able to assist their home state carriers in getting the federal permit.
Over time many agreed that the Alliance needs to move to regulation of all hazmat.
It was agreed that the Alliance will petition FMCSA to achieve equivalency with our changes, asking for 5119 and the database as well. If no to 5119, the Alliance would then consider a motion to require all Alliance states to cover all hazmat to be Alliance members, with an appropriate transition period.
Concerned about Minnesota's stance regarding the Alliance, Jim Rhode moved that Minnesota affirm its commitment to the Alliance in writing that the proposed changes by the Alliance are sufficient to keep Minnesota in the program. After discussion and assurances from Buzz Danzl that Minnesota wanted to continue to work with the Alliance, the motion was withdrawn.
Larry AuBuchon pointed out that the Alliance is running the program according to its original plan as contained in the 1996 report which was uniform but allowed some state flexibility in what type of material is registered and permitted. Adding the new federal subset of hazmat is likely, but all hazmat may be a problem for states that do not currently regulate all hazmat. And it likely won’t be mandated that all hazmat would be permitted by the feds under 5119. It’s a tough sell to convince the trucking industry to create a whole new regulatory program. Larry thinks that he might be able to get the four additional federal classes of hazmat covered by Michigan in his agency or another.
The question, which states regulate all hazmat? was asked. According to a compilation by Jim Reed, ten states do, including California, Colorado, Georgia, Idaho, Minnesota, Nevada, New Mexico, Ohio, West Virginia, and Wisconsin.
It was suggested that a transition schedule needs to be developed and to include a date in the MOU that this whole process would go online.
Petitions for Review at Next Meeting
According to Alliance procedures, page 7-10 in the Administrator's Manual, substantial changes to the program must be sent in the form of petition to the board, which is accepted by the board and considered at least 90 days in the future. Two petitions have arisen from this meeting.
- Petition of program changes by the board for equivalency— details in minutes above
- Petition by Minnesota for program change to include all hazmat and make the program compatible with CVISN-details in minutes above
A motion to accept both petitions was made by Jim Rhode, and seconded by Mike Nechvatal. It passed unanimously.
Alliance procedures also require a notice to the public on petitions be sent 60 days prior to next meeting. NCSL will handle the public notification. It was suggested to create a mail list of trucking groups, state agencies, legislators, and those previously interested in the program.
To do items were reviewed:
- Letter of intent—telling FMCSA the changes the Alliance is contemplating, asking for 5119 and the database.
- Redo the application.
- Notice of program changes at next meeting
- Suggested transition schedule
A new fee worksheet was developed by Sherry Soliz. Everyone liked it and agreed that a form of it should be part of the new application. Jim Rhode asked can the fee worksheet be put online? All agreed that it should be in each state and maybe the NCSL site as well. Regarding the application cover sheet –keep the same for now, but streamline and reformat.
In letter of intent to Quade, it was suggested to ask that the Alliance be cc’ed on letters of action to suspend or revoke the federal safety permit.
Chairman Canty said hard decisions must be made in January to include whether to move to all hazmat, but no changes can be decided now due to Alliance procedures.
The next meeting is scheduled in conjunction with COHMED in Ft. Lauderdale, Florida January 24-26, 2005. Bill Quade will be asked to speak to our group then.
The meeting adjourned.
 Hazmat Meetings
Visitor counts for this page.
|
