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When does “storage incident to transportation” end?

Are hazardous chemicals stored at the destination indicated on the shipping papers considered to be storage “incident to transportation” if they will be shipped later on to another destination under new shipping papers?

Section 327 of EPCRA exempts from any reporting requirement, other than the Section 304 notification requirements, substances or chemicals in transportation or being stored incident to transportation. However, hazardous chemicals which are carried on transportation vehicles, including rail cars, can be subject to reporting when they are not under active shipping papers and have reached the consignee identified on the shipping papers. See, House Report No. 99-962 (Committee of Conference), October 3, 1986. 99 Cong. Conf. H. Report 962, at 311, which clarifies that the exemption under Section 327 relating to storage “is limited to the storage of materials which are still moving under active shipping papers and which have not reached the ultimate consignee. This is consistent with the manner in which storage facilities are treated under the Hazardous Materials Transportation Act, which is administered by the Department of Transportation (DOT).”

Once the transportation vehicle has reached the consignee listed on the shipping papers, storage of the vehicle is no longer considered to be “storage incident to transportation” and the hazardous chemical in the vehicle would be subject to Sections 311 and 312 if it exceeds the reporting thresholds specified in 40 CFR 370. This is the case even when the hazardous chemicals will be transloaded onto another mode of transportation and shipped to a subsequent consignee under a new set of shipping papers.

This is not intended to restrict the Department of Transportation’s jurisdiction over such transportation vehicles. While the Hazardous Materials Regulations apply to transloading operations at fixed facilities, regulations of other Federal or non-Federal entities may also apply to such facilities (68 FR 61919).