[Federal Register Volume 59, Number 20 (Monday, January 31, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-1988]


[[Page Unknown]]

[Federal Register: January 31, 1994]


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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
[Docket No. PDA-13(R)]

 

Application by Chemical Waste Transportation Institute for a 
Preemption Determination as to New York Department of Environmental 
Conservation Requirements on the Transfer and Storage of Hazardous 
Wastes Incidental to Transportation

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Further extension of period for public comment.

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SUMMARY: RSPA is granting the request of the New York Department of 
Environmental Conservation (NYDEC) for a further extension of the 
comment period on the application by the Chemical Waste Transportation 
Institute (CWTI) for a determination that the Hazardous Materials 
Transportation Act (HMTA) preempts certain NYDEC requirements on the 
transfer and storage of hazardous wastes incidental to transportation. 
The period for rebuttal comments is also extended to permit interested 
parties an opportunity to respond to all comments submitted during the 
extended initial comment period.

DATES: Further comments received on or before February 28, 1994, and 
rebuttal comments received on or before April 14, 1994, will be 
considered before an administrative ruling 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 any comments received may be reviewed in 
the Dockets Unit, Research and Special Programs Administration, room 
8421, Nassif Building, 400 Seventh Street, SW., Washington, DC 20590-
0001 (Tel. No. 202-366-4453). Comments and rebuttal comments on the 
application may be submitted to the Dockets Unit at the above address, 
and should include the Docket Number (PDA-13(R)). Three copies of each 
should be submitted. In addition, a copy of each comment and each 
rebuttal comment must also be sent to (1) Mr. Stephen C. Hansen, 
Chairman, Chemical Waste Transportation Institute, 1730 Rhode Island 
Avenue, NW., suite 1000, Washington, DC 20036, and (2) Mr. Thomas C. 
Jorling, Commissioner, New York Department of Environmental 
Conservation, 50 Wolf Road, Albany, NY 12233. A certification that a 
copy has been sent to these persons must also be included with the 
comment. (The following format is suggested: ``I hereby certify that 
copies of this comment have been sent to Messrs. Hansen and Jorling at 
the addresses specified in the Federal Register.'')

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief 
Counsel, Research and Special Programs Administration, U.S. Department 
of Transportation, Washington, DC 20590-0001 (Tel. No. 202-366-4400).

SUPPLEMENTARY INFORMATION:

I. Background

    CWTI has applied for a determination that the HMTA preempts certain 
NYDEC requirements in Title 6 of the New York Codes, Rules and 
Regulations (NYCRR), governing the transfer and storage of hazardous 
wastes incidental to transportation (hereinafter ``NYDEC transfer and 
storage requirements''). The text of CWTI's application was published 
in the Federal Register on October 15, 1993, and interested parties 
were invited to submit comments. 58 FR 53614. In response to the 
requests of four States for additional time to submit comments, RSPA 
extended the comment periods in a second notice published in the 
Federal Register on December 13, 1993. 58 FR 65226. Among the parties 
requesting additional time was NYDEC which stated that it was proposing 
to eliminate ``all but one'' of the requirements challenged by CWTI and 
that it anticipated filing draft regulations with the New York 
Secretary of State by mid-January 1994. RSPA set January 21, 1994 as 
the revised deadline for comments on CWTI's application and March 7, 
1994 as the revised deadline for rebuttal comments.
    In a January 20, 1994 letter, NYDEC advised that it could not meet 
the revised deadline of January 21, 1994, to complete its comments on 
CWTI's application. It requested that it be allowed until February 1, 
1994, to file its ``supplemental response,'' including a copy of its 
proposed rulemaking. It estimated that proposed revisions to the NYDEC 
transfer and storage requirements would be provided to the New York 
Secretary of State by January 25, 1994, ``which will result in 
publication of the Notice of Proposed Rulemaking in the New York State 
Register on February 9, 1994.'' In a separate telephone conversation, 
NYDEC has agreed to send a copy of the proposed revisions to each party 
that has provided a NYDEC with a copy of comments in this matter. NYDEC 
also stated it needed more time to answer a question in RSPA's December 
13, 1993 notice: whether, during the pendency of this rulemaking, it 
intends to enforce those parts of the NYDEC transfer and storage 
requirements which it has proposed to eliminate.
    Prior to receiving a copy of NYDEC's January 20, 1994 letter, CWTI 
submitted further comments in which it stated its opposition to any 
additional delay. CWTI indicated that it expected RSPA to issue a 
determination in this matter by April 13, 1994, based on a 1987 
statement by DOT of an intention to make preemption determinations 
within 180 days of the date of publication in the Federal Register. 
CWTI argued that there was no need to extend the time to address those 
parts of the NYDEC transfer and storage requirements that were being 
eliminated:

    If the requirements are indeed slated for elimination, we cannot 
conceive that the [NY]DEC would defend the continuation of the 
requirements. Therefore, we see no useful purpose in delaying the 
preemption determination process to consider comments which the 
[NY]DEC had ample notification and opportunity to respond to in the 
first place.

    In addition, CWTI clarified or supplemented its application in 
three respects. The October 15, 1993 Federal Register notice 
specifically requested comments on each of the preemption criteria in 
the HMTA, including the provision that requirements in covered subject 
areas which must be ``substantively the same as'' requirements in the 
HMTA or the Hazardous Materials Regulations (HMR). CWTI has now argued 
that the NYDEC transfer and storage requirements concern the ``packing, 
repacking [and] handling'' of hazardous materials, so that these 
requirements are preempted because they are not ``substantively the 
same as'' requirements in the HMTA and the HMR.
    Responding to the invitation in RSPA's December 13, 1993 Federal 
Register notice, CWTI has addressed NYDEC's earlier comment concerning 
secondary containment requirements for hazardous waste transfer 
operations. CWTI stated that its original application in this matter 
challenged ``the State's secondary containment requirements as they 
pertain to the transport of DOT-authorized packagings from one 
transport vehicle to another.'' It stated that it would submit a formal 
amendment of its application, if necessary, but that ``it is immaterial 
whether or not the [NY]DEC repeals Sections 373-1.1(d)(1)(xv)(c)(1) or 
373-1.1(d)(1)(xv)(i) because these sections are only given meaning to 
the extent section 373-2.9(f) exists.''
    CWTI also has addressed an issue raised in RSPA's October 15, 1993 
Federal Register notice, regarding the definitions of ``Storage 
Incidental to Transport'' and ``Transfer Incidental to Transport.'' It 
asserted that these definitions are embodied in the transfer and 
storage requirements, and are interwoven, so that

    A transporter cannot even transfer an unopened drum of hazardous 
waste by forklift from one vehicle to another, where the drum never 
touches the ground, unless the transporter owns the facility, 
maintains a log of the activity, provides secondary containment, 
inspects containers for leaks and records the inspections, and, if 
the drum contained ignitable or reactive wastes, not engage in this 
activity unless it occurs more than 50 feet from the facility's 
property line.

    Perhaps because CWTI's original application focused on the 
``obstacle'' criterion, many of the comments received to date have not 
addressed whether the NYDEC transfer and storage requirements concern 
the ``packing, repacking [or] handling'' of hazardous materials, within 
the meaning of 49 App. U.S.C. 1804(a)(4)(b)(ii). In addition, CWTI's 
original application referred to 40 CFR 236.10(c)(2), which provides 
that a transporter of hazardous wastes must comply with 40 CFR Part 262 
(Standards Applicable to Generators of Hazardous Waste), if it 
``[m]ixes hazardous wastes of different DOT shipping descriptions by 
placing them into a single container.'' None of the other comments has 
discussed whether this provision has any relevance to RSPA's 
determination.

II. Further Extension of Comment Periods

    RSPA considers that NYDEC should be allowed additional time to 
submit the text of its proposed amendments to the transfer and storage 
requirements and provide information on its enforcement policies as to 
requirements that may be eliminated within a year. With this text and 
enforcement information, comments on CWTI's application and NYDEC's 
transfer and storage requirements should be more specific, and more 
helpful to a decision in this matter. Moreover, the clarifications to 
CWTI's application, as discussed above, may enable other parties to 
provide additional, more focused comments at this time, rather than 
waiting for the rebuttal comment period.
    For these reasons, the initial comment period is hereby extended 
until February 28, 1994, and the rebuttal comment period is extended 
until April 14, 1994. Rebuttal comments may discuss only those issues 
raised by comments received during the initial comment period, now 
extended until February 28, 1994, and may not discuss new issues.
    These periods should guarantee that all parties have access to the 
proposed amendments that may eliminate many of the specific 
requirements which CWTI's application asks RSPA to find preempted by 
the HMTA. In its further comments, NYDEC may still address all matters 
on which comments were invited in the December 13, 1993 Federal 
Register notice. 58 FR at 65227. All parties are invited to comment on: 
(1) Whether the NYDEC transfer and storage requirements concern the 
``packing, repacking [or] handling'' of hazardous materials, within the 
meaning of 49 App. U.S.C. 1804(a)(4)(B)(ii), and (2) what relevance, if 
any, 40 CFR 263.10(c)(2) has to RSPA's decision on CWTI's application.
    As previously stated in both the October 15 and December 13, 1993 
notices, all comments should be limited to the issue of whether the 
NYDEC transfer and storage requirements are preempted by the HMTA, and 
all comments should:
    (1) Specifically address: (a) The preemption criteria 
(``substantively the same,'' ``dual compliance,'' and ``obstacle'') 
described in Part I of the October 15, 1993 Public Notice, and (b) 
whether the NYDEC transfer and storage requirements are ``otherwise 
authorized by Federal law'';
    (2) Set forth in detail the manner in which the NYDEC transfer and 
storage requirements are applied and enforced; and
    (3) Discuss the definitions of ``Storage Incidental to Transport'' 
and ``Transfer Incidental to Transport'' in 6 NYCRR 364.1(c), and how 
these definitions apply to the NYDEC transfer and storage requirements 
in 6 NYCRR Parts 372 and 373.
    Persons intending to comment should review the standards and 
procedures governing RSPA's consideration of applications for 
preemption determinations, set forth at 49 CFR. 107.201 - 107.211.

    Issued in Washington, DC on January 25, 1994
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 94-1988 Filed 1-28-94; 8:45 am]
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