[Federal Register Volume 59, Number 150 (Friday, August 5, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19123]


[[Page Unknown]]

[Federal Register: August 5, 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: Public Notice Reopening Comment Period.

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SUMMARY: RSPA is reopening the comment period on the application by the 
Chemical Waste Transportation Institute for a determination that the 
Hazardous Materials Transportation Act preempts certain New York State 
Department of Environmental Conservation requirements on the transfer 
and storage of hazardous wastes incidental to transportation. RSPA will 
afford interested parties the opportunity to submit additional comments 
and to respond to additional comments submitted during the reopened 
initial comment period.

DATES: Further comments received on or before August 31, 1994, and 
rebuttal comments received on or before September 23, 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 during the reopened 
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. Charles Dickhut, 
Chairman, Chemical Waste Transportation Institute, 4301 Connecticut 
Avenue, NW, Suite 300, Washington, DC 20008, 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

    In September 1993, Chemical Waste Transportation Institute (CWTI) 
applied for a determination that the Hazardous Materials Transportation 
Act (HMTA) preempts certain requirements of the New York State 
Department of Environmental Conservation (NYDEC). These requirements, 
in Title 6 of the New York Codes, Rules and Regulations (NYCRR), apply 
to the transfer and storage of hazardous wastes incidental to 
transportation (hereinafter ``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.
    RSPA has previously extended the period for public comments in this 
matter. One extension was in response to the requests of four States 
for additional time to submit comments, including the statement by 
NYDEC that it was preparing revisions to its regulations that would 
eliminate many of the specific requirements challenged by CWTI. 58 FR 
65226 (Dec. 13, 1993). A second extension allowed additional time for 
NYDEC to publish proposed revisions to its transfer and storage 
requirements (which NYDEC then provided to all parties that had 
previously submitted comments on CWTI's application), for NYDEC to 
submit further comments that considered these proposed revisions, and 
for other parties to address these proposed revisions and NYDEC's 
further comments. 59 FR 4312 (Jan. 31, 1994). The rebuttal comment 
period, as extended, closed April 14, 1994.
    RSPA's Acting Administrator recently received a written request 
from the Association of State and Territorial Solid Waste Management 
Officials (ASTSWMO) for a meeting to discuss the effect of RSPA's 
preemption ``activities upon States' ability to appropriately regulate 
transporters of hazardous waste under [the Resource Conservation and 
Recovery Act] RCRA.'' ASTSWMO indicated that it would like to discuss, 
among other issues, the ``commingling and mixing of hazardous waste by 
transporters while in transit,'' and the ``off loading and storage of 
hazardous waste at non-RCRA regulated sites.'' These issues are 
involved in the NYDEC transfer and storage requirements challenged in 
CWTI's application. RSPA views this request broadly as a desire by 
ASTSWMO to make additional comments beyond its January 13, 1994 letter 
already submitted on CWTI's application.
    ASTSWMO's letter and RSPA's response, denying ASTSWMO's request for 
a meeting, have been placed in the public docket. In view of the 
concerns expressed in ASTSWMO's letter and possible developments in 
connection with NYDEC's proposed revisions to its transfer and storage 
requirements, RSPA considers it appropriate to reopen the comment 
period on CWTI's application to allow:
    (1) ASTSWMO and others to comment on ``the effect of RSPA 
[preemption] activities upon States' ability to appropriately regulate 
transporters of hazardous waste under RCRA'';
    (2) NYDEC to advise RSPA of the current status of the proposed 
revisions to the NYDEC transfer and storage requirements, including the 
proposed repeal of many of the requirements challenged by CWTI;
    (3) All interested parties to provide further information on 
whether requirements proposed to be repealed by NYDEC have been or are 
being applied and enforced at this time; and
    (4) NYDEC and other parties to comment further on the meaning of 
the phrases ``store incidental to transport'' and ``transfer incidental 
to transport'' contained in 6 NYCRR 372.3(a)(6) and (7), respectively, 
and whether the definitions set forth in 6 NYCRR 364.1(c)(12) and (14) 
apply to these phrases.
    On July 5, 1994, President Clinton signed Public Law 103-272 which 
extensively revised, codified and enacted without substantive change 
numerous laws related to transportation. The former Hazardous Materials 
Transportation Act, 49 App. U.S.C. 1801 et seq., has been repealed and 
replaced by 49 U.S.C. Chapter 51, ``Transportation of Hazardous 
Material,'' except as to ``proceedings that were begun before'' July 5, 
1994. Accordingly, the preemption provisions in former 49 App. U.S.C. 
1804 and 1811 remain applicable to CWTI's application. At the same 
time, since Congress made no substantive change in passing 49 U.S.C. 
Chapter 51, RSPA's determination in this matter will cite to the 
preemption criteria as set forth in 49 U.S.C. 5125.

II. Reopening of Comment Period

    For the reasons set forth above, the period for public comments on 
CWTI's application is being reopened. Comments may be submitted through 
August 31, 1994, and may discuss all issues relating to CWTI's 
application including those contained in comments previously submitted. 
Rebuttal comments may be submitted through September 23, 1994, and may 
discuss only those issues raised in comments submitted during the 
reopened comment period; rebuttal comments may not raise new issues.
    As previously stated in the October 15, 1993, December 13, 1993, 
and January 31, 1994 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: 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.'' 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, D.C. on July 29, 1994.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 94-19123 Filed 8-4-94; 8:45 am]
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