[Federal Register Volume 60, Number 234 (Wednesday, December 6, 1995)]
[Notices]
[Pages 62527-62542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29648]



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DEPARTMENT OF TRANSPORTATION
RESEARCH AND SPECIAL PROGRAMS ADMINISTRATION
[Preemption Determination No. PD-12(R); Docket No PDA-13(R)]


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: Administrative determination of preemption by RSPA's Associate 
Administrator for Hazardous Materials Safety.

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APPLICANT: Chemical Waste Transportation Institute.

STATE LAWS AFFECTED: New York Codes, Rules and Regulations (NYCRR), 
Title 6, Section 372.3(a)(7).

APPLICABLE FEDERAL REQUIREMENTS: Federal hazardous material 
transportation law, 49 U.S.C. 5101 et seq., and the Hazardous Materials 
Regulations (HMR), 49 CFR Parts 171-180.

MODES AFFECTED: Highway and Rail.


[[Page 62528]]

SUMMARY: Federal hazardous material transportation law preempts 6 NYCRR 
372.3(a)(7) which restricts hazardous waste transporters' activities at 
transfer facilities by (1) prohibiting the repackaging of hazardous 
wastes; (2) requiring an indication on the manifest of a transfer of 
hazardous wastes between vehicles; and (3) requiring secondary 
containment for any storage or transfer of hazardous wastes. This 
decision considers these requirements in the context of highway 
transportation of hazardous wastes, including transfers between motor 
and rail carriers. On their face, these requirements apply to all modes 
of transportation.
    The first two requirements are preempted by 49 U.S.C. 5125(b)(1) 
because they are not substantively the same as provisions in the HMR 
concerning (1) the packing, repacking, and handling of hazardous 
material, and (2) the preparation, contents, and use of shipping 
documents related to hazardous material. The requirement for secondary 
containment is preempted because it is an obstacle to the 
accomplishment and carrying out of the HMR's provisions on packaging 
and segregation. 49 U.S.C. 5125(a)(2).
    No party, including the applicant, has requested a determination 
that Federal law preempts the requirement in 6 NYCRR 373-1.1(d)(1)(xv), 
also incorporated by reference in 372.3(a)(6), that storage of 
hazardous wastes incidental to transport may take place only at a 
transfer facility that is not located on the site of a commercial 
hazardous waste treatment, storage or disposal facility. Accordingly, 
no decision is reached with respect to that requirement.
    This determination does not consider the definitions of ``Storage 
Incidental to Transport'' and ``Transfer Incidental to Transport,'' in 
6 NYCRR 364.1(c)(12) and (14), because these definitions do not appear 
to apply to the NYCRR transfer and storage requirements nor impose any 
requirements or restrictions on transporters of hazardous wastes.

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief 
Counsel, Research and Special Programs Administration, U.S. Department 
of Transportation, 400 Seventh Street, SW, Washington, DC 20590-0001, 
telephone 202-366-4400.

SUPPLEMENTARY INFORMATION:

I. Background

A. Application for Preemption Determination

    In September 1993, the Chemical Waste Transportation Institute 
(CWTI) applied for a determination that the former Hazardous Materials 
Transportation Act (HMTA) preempted certain requirements of the New 
York State Department of Environmental Conservation (NYDEC) applicable 
to the transfer and storage of hazardous wastes incidental to 
transportation (generally referred to in this determination as ``NYDEC 
transfer and storage requirements'').
    In general terms, these requirements impose conditions on the 
transfer and storage of hazardous wastes ``incidental to transport'' 
that, if complied with, exempt the transporter from having to obtain 
the separate permit required for treatment, storage and disposal (TSD) 
facilities. As discussed more fully below, CWTI contends that these 
NYDEC transfer and storage requirements are preempted because they are 
not ``substantively the same as'' requirements in the HMR governing (1) 
the packing, repacking and handling of hazardous materials and (2) the 
content and use of the manifest which serves as a shipping paper 
accompanying a shipment of hazardous waste. CWTI also contends that 
most of the NYDEC transfer and storage requirements constitute an 
obstacle to the accomplishment and execution of the HMTA and the HMR, 
because they interfere with, or are not necessary for, the safe and 
efficient transportation of hazardous waste.
    On their face, the NYDEC transfer and storage requirements apply to 
all modes of transportation. However, CWTI's application and all the 
comments addressed these requirements only in the context of highway 
transportation of hazardous wastes, including transfers between motor 
and rail carriers.
    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. The period for public comments was 
extended when several States initially requested additional time to 
submit comments, and NYDEC advised it was proposing revisions to its 
regulations that have eliminated many of the specific requirements 
challenged by CWTI. 58 FR 65226 (Dec. 13, 1993). Additional time was 
then allowed for interested parties to comment on these proposed 
revisions to the NYDEC transfer and storage requirements, including 
whether requirements proposed to be repealed were being enforced. 59 FR 
4312 (Jan. 31, 1994). Later, RSPA reopened the comment period to invite 
further comments on the effect of preemption on ``States' ability to 
appropriately regulate transporters of hazardous waste under RCRA,'' as 
raised in a June 27, 1994 letter to RSPA from the Association of State 
and Territorial Solid Waste Management Officials (ASTSWMO). 59 FR 40081 
(Aug. 5, 1994). The comment period closed September 23, 1994.
    Extensive comments were received from NYDEC, ASTSWMO, transporters 
of hazardous wastes, industry organizations, and the following States: 
California, Colorado, Connecticut, Maine, Maryland, Massachusetts, 
Montana, Ohio, and Pennsylvania. Further comments were submitted by 
CWTI.

B. Transfer Facilities and EPA's Regulations

    Hazardous wastes, like many other commodities, are seldom 
transported in a single vehicle from origin to destination. In issuing 
a 1980 amendment to its hazardous waste regulations, the Environmental 
Protection Agency (EPA) noted that

    Many transporters own or operate transfer facilities (sometimes 
called ``break-bulk'' facilities) as part of their transportation 
activities. At these facilities, for example, shipments may be 
consolidated into larger units or shipments may be transferred to 
different vehicles for redirecting or rerouting. Shipments generally 
are held at these facilities for short periods of time. The length 
of time may vary due to such factors as scheduling and weather, but 
because these facilities are intended to facilitate transportation 
activities, rather than storage, the time is typically as short as 
practicable.

Interim final amendments and request for comments, Hazardous Waste 
Management System, etc., 45 FR 86966 (Dec. 31, 1980)
    Commenters on CWTI's application described as a common practice the 
transfer of hazardous wastes between vehicles, including transferring 
the contents of one container into another. For example, NCH 
Corporation referred to transporters who pick up hazardous waste in 
drums from relatively small generators and then consolidate them

into loads that are large enough to be accepted by the permitted 
recycler or waste treatment facility. Transferring the drummed waste 
upon delivery to the transfer facility into a tanker truck * * * 
eliminates the labor-intensive and wasteful unloading, reloading, 
and management of multiple drums of waste that would otherwise be 
necessary.

According to the Association of American Railroads (AAR):

    It is a common transportation practice for hazardous waste to be 
transferred from truck to rail. For example, contaminated soil has 
been trucked from hazardous waste sites to rail sidings for rail 
delivery to treatment or disposal facilities. Hazardous waste 
liquids are trucked to sidings for pumping into tank 

[[Page 62529]]
cars and subsequent delivery to consignees for burying or recycling.

    EPA's regulations provide that a transporter who mixes hazardous 
wastes of ``different DOT shipping descriptions by placing them in a 
single container'' must comply with the standards applicable to 
generators. 40 CFR 263.10(c)(2). Transporters who simply hold hazardous 
wastes ``for a short period of time in the course of transportation,'' 
45 FR 86966, are exempted from EPA's requirements applicable to TSD 
facilities. Section 263.12 of 40 CFR states that:

    A transporter who stores manifested shipments of hazardous waste 
in containers meeting the requirements of Sec. 262.30 [specifying 
packagings that meet DOT regulations] at a transfer facility for a 
period of ten days or less is not subject to regulation under parts 
270, 264, 265, and 268 of this chapter with respect to the storage 
of those wastes.

C. NYDEC Transfer and Storage Requirements

    In contrast, New York subjects transfer facilities to all the 
requirements governing TSD facilities, including permits, unless the 
hazardous waste transporter limits its activities at the transfer 
facilities as follows:
     Transfer of hazardous wastes by a transporter ``incidental 
to transport'' is permitted by 6 NYCRR 372.3(a)(7) only if ``(i) no 
consolidation or transfer of loads occurs either by repackaging in, 
mixing, or pumping from one container or transport vehicle into 
another[;] (ii) transfer of hazardous waste from one vehicle to another 
is indicated on the Manifest as Second Transporter''; and (iii) the 
transfer or storage areas where sealed containers are transferred from 
one vehicle to another, or unloaded for temporary storage, are 
``designed to meet secondary containment requirements'' set forth in 6 
NYCRR 373-2.9(f).
     Storage of hazardous wastes by a transporter ``incidental 
to transport,'' is allowed by 6 NYCRR 372.3(a)(6) for ten calendar days 
only if conditions specified in 6 NYCRR 373-1.1(d)(1)(xv) are met. The 
latter section is contained in New York's Hazardous Waste Treatment, 
Storage and Disposal Facility Permitting Requirements. It allows the 
transporter an exemption from the requirement to obtain a TSD permit 
when it stores manifested shipments of hazardous waste in DOT-
authorized packagings for ten calendar days or less, ``provided that 
the transfer facility is not located on the site of any commercial 
hazardous waste treatment, storage or disposal facility subject to 
permitting'' by NYDEC.
    Violations of NYDEC's regulations are punishable by civil and 
criminal penalties. In addition, a transporter's permit may be revoked 
or suspended, and the violator may be enjoined from continuing to 
violate the regulations. N.Y. Envtl. Conserv. Law. 71-2703.
    CWTI does not challenge the condition in Sec. 373-1.1(d)(1)(xv) 
that storage of hazardous wastes at a transfer facility must be in DOT-
authorized containers. While CWTI's application also argued for 
preemption of several other restrictions in Sec. 373-1.1(d)(1)(xv), 
concerning the storage of hazardous wastes at transfer facilities (such 
as daily inspections, a log of receipts and shipments, and facility 
ownership), these other restrictions have been (1) combined with 
similar requirements in Sec. 372.3(a), (2) eliminated, or (3) modified 
for consistency with EPA's regulations. These amendments took effect on 
January 14, 1995 (60 days after NYCRR filed amendments to 6 NYCRR with 
the New York Secretary of State on November 15, 1994). N.Y.S. Register, 
p.14 (Nov. 30, 1994).
    The only restriction added by NYDEC's November 1994 amendments to 
the transfer and storage requirements is the condition that a transfer 
facility not be located on the site of a commercial TSD facility. CWTI 
refers to this additional restriction in its March 11, 1994 comments, 
but neither it nor any other party has discussed the effect of this 
condition on hazardous waste transporters or argued that this condition 
is preempted by 49 U.S.C. 5125.
    In its application, CWTI also contends that the following 
definitions in 6 NYCRR 364.1(c), defining terms used in Part 364 
(governing Waste Transporter Permits), are also preempted:

    (12) ``Storage Incidental to Transport'' means any on-vehicle 
storage which occurs enroute from the point of initial waste pickup 
to the point of final delivery for purposes such as, but not limited 
to, overnight on-the-road stops, stops for meals, fuel, and driver 
comfort, stops at the transporter's facility for weekends 
immediately prior to shipment, or on-vehicle storage not to exceed 
five days at the transporter's facility for the express purpose of 
consolidating loads (where such loads are not removed from their 
original packages or containers) for delivery to an authorized 
treatment, storage or disposal facility.
    (14) ``Transfer Incidental to Transport'' means any transfer of 
waste material associated with storage incidental to transport where 
such material is not unpackaged, mixed or pumped from one container 
or truck into another.

However, these definitions do not appear to impose any requirements or 
restrictions on transporters of hazardous wastes. Moreover, NYDEC has 
stated that these definitions do not apply to the transfer and storage 
requirements in 6 NYCRR Part 372 and 373. And CWTI has not indicated 
that the scope of requirements in Part 364, governing permits for 
transporters of hazardous wastes, is improperly broadened by these 
definitions to the extent that transporter permit requirements are 
preempted by 49 U.S.C. 5125. Accordingly, this determination does not 
consider these two definitions.
    The next part of this decision summarizes the regulation of 
hazardous wastes as hazardous materials under the HMR, the criteria for 
Federal preemption of non-Federal requirements applicable to the 
transportation of hazardous materials, and RSPA's procedures for 
issuing administrative determinations of preemption. Part III addresses 
in detail NYDEC's three restrictions on transfer facilities that have 
been challenged by CWTI's application and remain in effect following 
the 1994 amendments to the transfer and storage requirements: (1) The 
prohibition against repackaging, (2) the requirement to indicate on the 
manifest any transfer of hazardous waste between vehicles, and (3) the 
requirement for secondary containment for any storage or transfer of 
sealed containers.

II. Federal Hazardous Materials Transportation Law

A. Scope of Federal Law and Application to Hazardous Wastes

    The HMTA was enacted in 1975 to give the Department of 
Transportation greater authority ``to protect the Nation adequately 
against the risks to life and property which are inherent in the 
transportation of hazardous materials in commerce.'' Pub. L. 93-633 
Sec. 102, 88 Stat. 2156, amended by Pub. L. 103-272 and codified as 
revised in 49 U.S.C. 5101. The HMTA ``replace[d] a patchwork of state 
and federal laws and regulations * * * with a scheme of uniform, 
national regulations.'' Southern Pac. Transp. Co. v. Public Serv. 
Comm'n, 909 F.2d 352, 353 (9th Cir. 1980). On July 5, 1994, the HMTA 
was among the many Federal laws relating to transportation that were 
revised, codified and enacted ``without substantive change'' by Public 
Law 103-272, 108 Stat. 745. The Federal law governing the 
transportation of hazardous material is now found in 49 U.S.C. Chapter 
51. Although the HMTA remains applicable to proceedings begun before 
July 5, 1994, this determination will cite to the preemption criteria 
presently set forth 

[[Page 62530]]
in 49 U.S.C. 5125, because Congress made no substantive change.
    The HMR, now issued under the 49 U.S.C. 5103(b)(1) mandate that the 
Secretary of Transportation ``prescribe regulations for the safe 
transportation of hazardous material in intrastate, interstate, and 
foreign commerce,'' predate the HMTA. They had their origins in the 
Explosives and Combustibles Act of 1908, 35 Stat. 554 (chap. 234), and 
many of the provisions governing motor vehicles carrying hazardous 
materials were originally issued by the Interstate Commerce Commission 
under former Sec. 204 of the Interstate Commerce Act. After DOT assumed 
responsibility for the regulation of hazardous materials, the HMR were 
continued, but renumbered. 32 FR 5606 (Apr. 5, 1967).
    To encourage the nationwide application of uniform requirements, 
DOT has long encouraged States to adopt and enforce the HMR as State 
law. Grants are available, under the Motor Carrier Safety Assistance 
Program (MCSAP) of the Federal Highway Administration (FHWA), to States 
that enforce the ``highway related portions'' of the HMR ``or 
compatible State rules, regulations, standards, and orders applicable 
to motor carrier safety, including highway transportation of hazardous 
materials.'' 49 CFR 350.9(a). New York has adopted the HMR ``as the 
standard for classification, description, packaging, marking, labeling, 
preparing, handling and transporting all hazardous materials,'' 17 
NYCRR 507.4(a)(1)(i), and these incorporated provisions of 49 CFR 
``apply to all transportation within or through the State of New 
York.'' 17 NYCRR 507.7.
    Under the MCSAP program, in the year ending September 30, 1995, New 
York was awarded almost $3.5 million in grants for enforcement of the 
HMR and the Federal Motor Carrier Safety Regulations, 49 CFR Parts 350-
399. As a condition of receiving MCSAP grant funds in fiscal 1996, New 
York has certified that it has adopted highway hazardous materials 
safety rules and regulations that are substantially similar to and 
consistent with the HMR.
    All hazardous wastes are designated ``hazardous substances'' under 
the Comprehensive Environmental Response, Compensation, and Liability 
Act (CERCLA), 42 U.S.C. 9601(14)(C), and, as such, hazardous wastes 
were explicitly required to be ``listed and regulated as * * * 
hazardous material[s] under the Hazardous Materials Transportation 
Act.'' 42 U.S.C. 9656(a). See also 49 CFR 171.8 (the term ``hazardous 
material'' includes hazardous wastes.) The HMR apply to the 
transportation of hazardous wastes by intrastate, interstate and 
foreign carriers. 49 CFR 171.1(a).
    Under the HMR, all hazardous materials (including hazardous wastes) 
are classified according to their hazard characteristics (flammable, 
corrosive, etc.) and must be packaged for transportation in containers 
that meet prescribed design specifications or performance-oriented 
standards. A package containing hazardous materials must be marked and 
labeled, and the vehicle or freight container placarded, according to 
the HMR's requirements. The package also must be accompanied by a 
shipping paper that properly describes the hazardous material. An EPA 
manifest (meeting the requirements of 40 CFR part 262) must be prepared 
for any shipment of hazardous waste, and, if it contains all the 
information required by DOT, the manifest may be used as the DOT 
shipping paper. 49 CFR 172.205(a), (h).
    In enacting RCRA in 1976, Congress provided that EPA's regulations 
on transporters of hazardous waste must be consistent with the 
requirements of the HMTA and the HMR. 42 U.S.C. 6923(b). Accordingly, 
the EPA regulations on transporters of hazardous wastes adopted in 1980 
contain a note to explain that:

    EPA and DOT worked together to develop standards for 
transporters of hazardous waste in order to avoid conflicting 
requirements. Except for transporters of bulk shipments of hazardous 
waste by water, a transporter who meets all applicable requirements 
of 49 CFR parts 171 through 179 and the requirements of 40 CFR 
263.11 [concerning an EPA identification number] and 263.31 
[concerning cleanup of releases of hazardous wastes] will be deemed 
in compliance with this part. 40 CFR 263.10, Note.

B. Federal Preemption

    A statutory provision for Federal preemption was central to the 
HMTA. In 1974, the Senate Commerce Committee ``endorse[d] the principle 
of preemption in order to preclude a multiplicity of State and local 
regulations and the potential for varying as well as conflicting 
regulations in the area of hazardous materials transportation.'' S. 
Rep. No. 1102, 93rd Cong. 2nd Sess. 37 (1974). More recently, a Federal 
Court of Appeals found that uniformity was the ``linchpin'' in the 
design of the HMTA, including the 1990 amendments which expanded the 
preemption provisions. Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 
1571, 1575 (10th Cir. 1991). In 1990, Congress specifically found that:

    (3) many States and localities have enacted laws and regulations 
which vary from Federal laws and regulations pertaining to the 
transportation of hazardous materials, thereby creating the 
potential for unreasonable hazards in other jurisdictions and 
confounding shippers and carriers which attempt to comply with 
multiple and conflicting registration, permitting, routing, 
notification, and other regulatory requirements,
    (4) because of the potential risks to life, property, and the 
environment posed by unintentional releases of hazardous materials, 
consistency in laws and regulations governing the transportation of 
hazardous materials is necessary and desirable,
    (5) in order to achieve greater uniformity and to promote the 
public health, welfare, and safety at all levels, Federal standards 
for regulating the transportation of hazardous materials in 
intrastate, interstate, and foreign commerce are necessary and 
desirable.

Pub. L.101-615 Sec. 2, 104 Stat. 3244.
    Following the 1990 amendments and the subsequent 1994 codification 
of the Federal law governing the transportation of hazardous material, 
in the absence of a waiver of preemption by DOT under 49 U.S.C. 
5125(e), ``a requirement of a State, political subdivision of a State, 
or Indian tribe'' is explicitly preempted (unless it is authorized by 
another Federal law) if

    (1) complying with a requirement of the State, political 
subdivision, or tribe and a requirement of this chapter or a 
regulation prescribed under this chapter is not possible; or
    (2) the requirement of the State, political subdivision, or 
Indian tribe, as applied or enforced, is an obstacle to the 
accomplishing and carrying out this chapter or a regulation 
prescribed under this chapter.

49 U.S.C. 5125(a). These two paragraphs set forth the ``dual 
compliance'' and ``obstacle'' criteria which RSPA had applied in 
issuing inconsistency rulings prior to the 1990 amendments to the HMTA. 
While advisory in nature, these inconsistency rulings were ``an 
alternative to litigation for a determination of the relationship of 
Federal and State or local requirements'' and also a possible ``basis 
for an application * * * [for] a waiver of preemption.'' Inconsistency 
Ruling (IR) No. 2, Rhode Island Rules and Regulations Governing the 
Transportation of Liquefied Natural Gas and Liquefied Propane Gas, etc. 
44 FR 75566, 75567 (Dec. 20, 1979). The dual compliance and obstacle 
criteria are based on U.S. Supreme Court decisions on preemption. Hines 
v. Davidowitz, 312 U.S. 52 (1941); Florida Lime & Avocado Growers, Inc. 
v. Paul, 373 U.S. 132 (1963); Ray v. Atlantic Richfield Co., 435 U.S. 
151 (1978).
    In the 1990 amendments to the HMTA, Congress also confirmed that 
there is no room for differences from Federal requirements in certain 
key 

[[Page 62531]]
matters involving the transportation of hazardous material. As now 
codified, a non-Federal requirement ``about any of the following 
subjects, that is not substantively the same as a provision of this 
chapter or a regulation prescribed under this chapter,'' is preempted 
unless it is authorized by another Federal law or DOT grants a waiver 
of preemption:

    (A) the designation, description, and classification of 
hazardous material.
    (B) the packing, repacking, handling, labeling, marking, and 
placarding of hazardous material.
    (C) the preparation, execution, and use of shipping documents 
related to hazardous material and requirements related to the 
number, contents, and placement of those documents.
    (D) the written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material.
    (E) the design, manufacturing, fabricating, marking, 
maintenance, reconditioning, repairing, or testing of a packaging or 
a container represented, marked, certified, or sold as qualified for 
use in transporting hazardous material.

49 U.S.C. 5125(b)(1). RSPA has defined ``substantively the same'' to 
mean ``conforms in every significant respect to the Federal 
requirement. Editorial and other similar de minimis changes are 
permitted.'' 49 CFR 107.202(d).
    Since 1984, the HMR have also included the provision in 49 CFR 
171.3(c) that:

    With regard to hazardous waste subject to [the HMR], any 
requirement of a state or its political subdivision is inconsistent 
with [the HMR] if it applies because that material is a waste 
material and applies differently from or in addition to the 
requirements of [the HMR] concerning:
    (1) Packaging, marking, labeling, or placarding;
    (2) Format or contents of discharge reports (except immediate 
reports for emergency response); and
    (3) Format or contents of shipping papers, including hazardous 
waste manifests.

This standard (which has been incorporated by reference in New York's 
transportation regulations) followed the original preemption provision 
in the HMTA that, unless DOT granted a waiver,

any requirement, of a State or political subdivision thereof, which 
is inconsistent with any requirement set forth in this chapter [the 
HMTA], or in a regulation issued under this chapter [the HMR], is 
preempted.

Pub. L. 93-633 Sec. 112(a), 88 Stat. 2161. New York's regulations 
specifically recognize that ``any requirement of the State or political 
subdivision thereof which is inconsistent with Federal law or 
regulations in the field is preempted,'' and refer to procedures under 
which DOT can issue a waiver of preemption. 17 NYCRR 507.1(b).
    Under 49 U.S.C. 5125(d)(1), any directly affected person may apply 
to the Secretary of Transportation for a determination whether a State, 
political subdivision or Indian tribe requirement is preempted. This 
administrative determination replaced RSPA's process for issuing 
inconsistency rulings. The Secretary of Transportation has delegated to 
RSPA the authority to make determinations of preemption, except for 
those concerning highway routing which have been delegated to FHWA. 49 
CFR 1.53(b). Under RSPA's regulations, preemption determinations are 
issued by RSPA's Associate Administrator for Hazardous Materials 
Safety. 49 CFR 107.209(a).
    Section 5125(d)(1) requires that notice of an application for a 
preemption determination must be published in the Federal Register. Id. 
Following the receipt and consideration of written comments, RSPA 
publishes its determination in the Federal Register. See 49 C.F.R. 
107.209(d). A short period of time is allowed for filing of petitions 
for reconsideration. 49 C.F.R. 107.211. Any party to the proceeding may 
seek judicial review in a Federal district court. 49 U.S.C. 5125(f).
    Preemption determinations do not address issues of preemption 
arising under the Commerce Clause of the Constitution or under statutes 
other than the Federal hazardous material transportation law unless it 
is necessary to do so in order to determine whether a requirement is 
authorized by another Federal law. A State, local or Indian tribe 
requirement is not authorized by another Federal law merely because it 
is not preempted by another Federal statute. Colorado Pub. Util. Comm'n 
v. Harmon, above, 951 F.2d at 1581 n.10.
    In making preemption determinations under 49 U.S.C. 5125(d), RSPA 
is guided by the principles and policy set forth in Executive Order No. 
12,612, entitled ``Federalism'' (52 FR 41685, Oct. 30, 1987). Section 
4(a) of that Executive Order authorizes preemption of State laws only 
when a statute contains an express preemption provision, there is other 
firm and palpable evidence of Congressional intent to preempt, or the 
exercise of State authority directly conflicts with the exercise of 
Federal authority. Section 5125 contains express preemption provisions, 
which RSPA has implemented through its regulations.
    Although cases cited by NYDEC and other commenters note the general 
presumption against preemption, RSPA must consider CWTI's application 
under the express preemption standards of 49 U.S.C. 5125. For that 
reason, the issue is not whether ``there is a clearly demonstrated 
compelling need for preemption,'' as NYDEC asserts, but rather whether 
the non-Federal requirements, such as the NYDEC transfer and storage 
requirements, fit the criteria in 49 U.S.C. 5125 for preemption.
    The Massachusetts Department of Environmental Protection's Division 
of Hazardous Materials appears to object to RSPA's procedure for 
issuing preemption determinations. Massachusetts asserts that RSPA's 
decision ``must be made on the basis of adjudicatory facts, not 
legislative-type facts.'' It states that ``DOT/RSPA has no authority 
for law-making with respect to preemption, only law-applying,'' and 
that RSPA ``must make findings of fact in an adjudicative-type 
proceeding, and then apply the facts to Congress' preemption 
standard.'' However, RSPA disagrees with the position of Massachusetts 
that a formal, fact-finding process under the Administrative Procedure 
Act is required. As RSPA has stated, before it issues a determination 
of preemption, each interested party, including the jurisdiction whose 
requirements are challenged

has been afforded (1) notice and an opportunity to submit any 
comments it wished; (2) the opportunity to petition for 
reconsideration; and (3) the right to judicial review. Due process 
does not require more. Nor is the Administrative Procedure Act 
applicable here, since the HMTA does not require RSPA to make a 
determination of preemption ``on the record after opportunity for an 
agency hearing.'' 5 U.S.C. 554(a). See Wong Yang Sun v. McGrath, 339 
U.S. 33 (1950), and Gardner v. United States, 239 F.2d 234, 238 (5th 
Cir. 1956).

Preemption Determination (PD) No. 1, State Bonding Requirements for 
Vehicles Carrying Hazardous Wastes, decision on petitions for 
reconsideration, 58 FR 32418, 32420 (June 9, 1993), affirming initial 
decision, 57 FR 58848 (Dec. 11, 1992), judicial review dismissed, 
Massachusetts v. United States Dep't of Transp., Civil Action No. 93-
1581(HHG) (D.D.C. Apr. 7, 1995), appeal pending, No. 95-5175 (D.C. 
Cir.).
    On August 26, 1994, 49 U.S.C. 5125(d)(1) was amended to require 
that DOT must issue its decision on an application for a determination 
of preemption within 180 days after publication in the Federal Register 
of receipt of the application, or DOT must publish a statement of ``the 
reason why the * * * decision on the application is delayed, along with 
an estimate of the additional time before the decision is made.'' Pub. 
L. 103-311 Sec. 120(b), 108 

[[Page 62532]]
Stat. 1681. Notice of CWTI's application was first published in the 
Federal Register on October 15, 1993. However, for the reasons 
explained above, the comment period was twice extended, later reopened, 
and finally closed on September 23, 1994. NYDEC's amendments to its 
transfer and storage requirements were not finalized until November 15, 
1994, and did not become effective until January 14, 1995. These facts 
made it impracticable to issue this decision within 180 days of the 
Federal Register notice of CWTI's application.

III. Discussion

A. CWTI's Standing to Apply for a Preemption Determination

    NYDEC and other States opposing CWTI's application assert that CWTI 
lacks ``standing'' to challenge the NYDEC transfer and storage 
requirements. NYDEC states that, based on CWTI's own statements, none 
of CWTI's members have been ``adversely affected'' or ``aggrieved by 
the challenged regulations.'' According to NYDEC, ``no [CWTI] member 
has demonstrated any actual harm (such as lost profits or penalties for 
failure to comply).'' NYDEC also asserts that, ``[s]ince the secondary 
containment requirement is a facility safety standard, and not a 
transportation issue, it is inapplicable to CWTI,'' and none of CWTI's 
members ``have been impaired by the application or enforcement of this 
requirement in their operations.''
    The Pennsylvania Department of Environmental Resources and the 
Montana Department of Health and Environmental Sciences both contend 
that CWTI has failed to show that the NYDEC transfer and storage 
requirements have been ``applied or enforced'' against transporters of 
hazardous waste in New York. Massachusetts simply states that ``CWTI 
has failed to state an injury for which relief pursuant to HMTA 
Sec. 1811(a) [now 49 U.S.C. 5125 (a) and (b)] can be granted.''
    In response, CWTI submitted affidavits by two of its members 
stating that they do not engage in certain activities within the State 
of New York because of, as set forth in one affidavit, ``the severity 
of the New York Department of Environmental Conservation regulations 
and the severity of the penalty for non-compliance.'' In other 
comments, private companies indicate they have been complying with the 
NYDEC transfer and storage requirements. For example, Chemical Waste 
Management, Inc. attributes the lack of enforcement actions against it 
to its ``conformance with those standards, which in part is based on 
our belief that New York would exercise its enforcement prerogative on 
companies not in compliance.'' Safety-Kleen states that it has obtained 
permits, that it would not need in the absence of the NYDEC transfer 
and storage requirements, in order to permit it to ``commingle and 
repackage our mineral spirits solvents for ultimate transport to our 
recycle centers.''
    Section 5125(d) authorizes any person who is ``directly affected'' 
by a non-Federal requirement to apply for a determination of 
preemption. That standard is a simple one; being ``affected'' means 
only that the requirement applies to the applicant. The plain words of 
the statute do not require showing that one is ``adversely affected,'' 
``aggrieved,'' or has suffered ``injury'' or ``actual harm.'' Issues of 
enforcement (and how the non-Federal requirement is actually applied) 
are relevant to whether or not there is an ``obstacle'' to executing 
and carrying out the Federal law and regulations governing the 
transportation of hazardous materials. But these issues do not bear on 
whether the applicant is within the scope of those persons entitled to 
use the administrative procedure set forth in Sec. 5125(d) for 
obtaining a preemption determination, i.e., whether the non-Federal 
requirement applies to the applicant.
    Moreover, the question of whether NYDEC's secondary containment 
requirement is a ``facility'' or ``transportation'' requirement cannot 
be determinative of whether a person to whom that requirement applies 
has ``standing'' to ask for a determination of preemption. Where 
loading, unloading or storage occurs incidental to ``the movement of 
property'' in commerce, that activity is within the scope of Federal 
law governing the transportation of hazardous material and the HMR. See 
49 U.S.C. 5102(12) (definition of ``transportation''). Requirements 
affecting transportation facilities, and transporters' activities at 
those facilities, are subject to Federal preemption. See IR-28, San 
Jose, California; Restrictions on Storage of Hazardous Materials, 55 FR 
8884, 8889-90 (Mar. 8, 1990), appeal dismissed as moot, 57 FR 41165 
(Sept. 9, 1992). Similar requirements affecting a consignee's facility 
and its handling of hazardous materials at that facility, after 
transportation has ended, are ``beyond the scope of the HMTA,'' as 
codified at 49 U.S.C. 5101 et seq. Id.; see also PD-8(R)--PD-11(R), 
California and Los Angeles County Requirements Applicable to the On-
site Handling and Transportation of Hazardous Materials, 60 FR 8774, 
8777-78 (Feb. 15, 1995) (petitions for reconsideration pending).
    CWTI has provided sufficient information to establish that the 
NYDEC transfer and storage requirements, including the requirement for 
secondary containment, do apply to its members. Accordingly, it is 
``directly affected'' by those requirements and entitled to submit this 
application.

B. Claims That RCRA Authorizes the NYDEC Requirements

    NYDEC and many of the States that submitted comments on CWTI's 
application argue that the NYDEC transfer and storage requirements are 
authorized by the provision in RCRA that:

Nothing in this title [42 U.S.C. Sec. 6921 et seq.] shall be 
construed to prohibit any State or political subdivision from 
imposing any requirements, including those for site selection, which 
are more stringent than those imposed by [EPA] regulations.

42 U.S.C. Sec. 6929 (RCRA Sec. 3009).
    NYDEC states that this provision ``explicitly invites state 
requirements that are 'more stringent''' than Federal ones, and that 
``a preemption determination will effectively repeal a basic tenet upon 
which RCRA is based.'' Maryland and Pennsylvania concur that ``RCRA 
expressly contemplates that state laws will be different and 
specialized to each state's concerns. States are only preempted by RCRA 
if state law is less stringent than RCRA.''
    Maryland and Pennsylvania further contend that DOT has ``no 
authority * * * to administer or interpret RCRA. Therefore, DOT's 
construction or interpretation of RCRA is entitled to no weight or 
deference at all.'' The Colorado Hazardous Waste Commission similarly 
states that ``RSPA has no expertise in the field of hazardous waste, 
[and] it should recognize the limits of its jurisdiction and defer to 
the State of New York in this matter.''
    The Maine Department of Environmental Protection asserts that more 
stringent requirements in an EPA-authorized State hazardous waste 
program take precedence over ``HMTA's transportation rules,'' and that 
``the preemption criteria under HMTA does not extend into hazardous 
waste transfer activities.'' Massachusetts mentions the ``special 
regulatory status of hazardous waste'' and also contends that 
``Congress left the states with their authority to enact requirements 
governing generation, transportation, storage, treatment and disposal 
which are more stringent than RCRA.'' Montana states that a 1982 EPA 
memorandum ``expressed [the] 

[[Page 62533]]
interpretation that provisions of an authorized State program which are 
more stringent than the Federal counterparts become a part of the 
requirements of RCRA, and fully enforceable by the EPA.''
    The California Department of Toxic Substances Control similarly 
asserts that ``RCRA stands as the minimum standards which States must 
follow, and Congress did not intend to preempt states from promulgating 
their own requirements pursuant to RCRA.'' It argues that NYDEC's 
``loading and unloading requirements'' are authorized by both RCRA 
Sec. 3009 and ``EPA's statutory obligation [in RCRA Sec. 3003, 42 
U.S.C. Sec. 6923] to promulgate regulations which are necessary to 
protect human health and the environment in the transportation of 
hazardous waste.'' ASTSWMO also indicates that RCRA empowers States 
``to create regulatory systems which are more stringent than federal 
rules,'' and that ``these State rules have been closely analyzed by the 
USEPA for consistency with federal statute and regulations, * * *''
    In contrast to the States' arguments, CWTI points to EPA's own 
statements that it does not examine State hazardous waste 
transportation requirements for consistency with Federal hazardous 
material transportation law. CWTI cites EPA's final determination on 
California's hazardous waste program, 57 FR 32726, 32728 (July 23, 
1992), where EPA found that ``preemption issues under other Federal 
laws * * * do not affect the State's RCRA authorization,'' and an 
August 17, 1994 letter signed by the Director of EPA's Office of Solid 
Waste stating that:

A possible issue of preemption under HMTA would not affect the 
programs's eligibility for RCRA authorization where the preemption 
concern is unrelated to RCRA authorities. * * * Thus, EPA still 
believes that the RCRA authorization decisions provide no basis for 
shielding state regulations touching upon hazardous materials 
transport from possible preemption challenges raised under the HMTA.

    CWTI also argues that the ``more stringent than'' language in 42 
U.S.C. 6929 simply prevents RCRA itself from prohibiting additional 
State requirements, so that the ``more stringent than language'' is not 
sufficient to specifically authorize the NYDEC transfer and storage 
requirements. According to CWTI, the ``more stringent than'' language 
does not prevent other Federal statutes from preempting State hazardous 
waste requirements.
    Moreover, CWTI finds that this language applies only to sites of 
TSD facilities. It quotes a statement by Senator Bumpers, the sponsor 
of the 1980 amendment that added the ``more stringent than'' language 
to RCRA, that the purpose of that language was to ``permit States to 
establish standards more stringent than Federal standards with regard 
to the selection of sites for the disposal of hazardous waste 
material.'' 125 Cong. Rec. 13,247 (1979).
    CWTI contends that State requirements on hazardous waste 
transporters must not be in conflict with the Federal hazardous 
material transportation law and the HMR, because RCRA requires that (1) 
EPA's regulations on transporters must be ``consistent with'' DOT's 
requirements, 42 U.S.C. 6923(b), and (2) State hazardous waste programs 
must be ``equivalent to'' and ``consistent with'' EPA's program. 42 
U.S.C. 6926(b). CWTI refers to 40 CFR 263.12, under which a transporter 
``who stores manifested shipments of hazardous waste in containers 
meeting [DOT packaging] requirements'' for no more than 10 days at a 
transfer facility need not meet other storage facility requirements. 
For the position that there is no restriction on transporters mixing 
wastes having the same DOT shipping description, CWTI cites the 
provision in 40 CFR 263.10 that a transporter who ``[m]ixes hazardous 
wastes of different DOT shipping descriptions by placing them in to a 
single container'' must comply with the standards applicable to 
generators. CWTI quotes the preamble to later amendments to 40 CFR Part 
263, where EPA stated that the ``amendments do not place any new 
requirements on transporters repackaging waste from one container to 
another (e.g., consolidation of wastes from smaller to larger 
containers) or on transporters who mix hazardous wastes at transfer 
facilities.'' 45 FR 86967 (Dec. 31, 1980). Included with CWTI's 
application is a March 1, 1990 letter signed by the Director of EPA's 
Office of Solid Waste stating:

    The bulking of characteristic hazardous waste shipments to 
achieve efficient transportation may result in incidental reduction 
of the hazards associated with that waste mixture. However, this 
incidental reduction may not meet the definition of treatment (as 
defined under 40 CFR Section 260.10) because it is not designed to 
render the waste nonhazardous or less hazardous. Accordingly, such 
activity may not require a RCRA permit.

    The opposing arguments by the States and CWTI clearly focus the 
issue of the relationship between Federal preemption under 49 U.S.C. 
5125 and State requirements on hazardous waste transporters, under EPA-
authorized programs. This same issue was addressed in two of RSPA's 
prior determinations concerning transporters of hazardous waste: PD-
1(R), above, 57 FR 58848, 58854-55, and PD-2(R), Illinois Environmental 
Protection Agency's Uniform Hazardous Waste Manifest, 58 FR 11176, 
11183 (Feb. 23, 1993). Further comments were specifically invited on 
this issue in the August 5, 1994 Federal Register notice, which 
reopened the comment period in response to ASTSWMO's request for an 
opportunity to discuss ``the effect of RSPA [preemption] activities 
upon States' ability to appropriately regulate transporters of 
hazardous waste under RCRA.'' 59 FR 40081.
    NYDEC's assertion that ``the regulation of intrastate 
transportation of hazardous materials is a matter of peculiarly local 
concern'' is not consistent with: (1) Congress's direction that 
hazardous wastes must be ``listed and regulated as hazardous 
material[s]'' under the former HMTA, 42 U.S.C. 9656(a); (2) its finding 
that uniform requirements ``are necessary and desirable'' for the safe 
transportation of hazardous materials, Pub. L. 101-615 Sec. 2, 104 
Stat. 3244; (3) the mandate that DOT ``prescribe regulations for the 
safe transportation of hazardous material in interstate, intrastate, 
and foreign commerce,'' 49 U.S.C. 5103(b)(1); and (4) New York's own 
adoption of the HMR as State law.
    As already noted, the HMR presently apply to all intrastate and 
interstate transportation of hazardous wastes, 49 C.F.R. 171.1(a), and 
RSPA has proposed to expand the HMR's coverage to intrastate motor 
carriers of all hazardous material. See Notice of Proposed Rulemaking 
in Docket No. HM-200, Hazardous Materials in Intrastate Commerce, 58 FR 
36920 (July 9, 1993), correction, 58 FR 38111 (July 15, 1993). (At 
present, the HMR do not apply to intrastate motor carriers of hazardous 
material other than hazardous wastes, hazardous substances, marine 
pollutants, and flammable cryogenics in cargo and portable tanks, 49 
CFR 171.1(a).)
    Moreover, since the early 1900's, the HMR have applied to wastes 
that were hazardous in transportation. In 1976, Congress recognized 
this fact when it enacted RCRA and specifically directed that 
regulations on hazardous waste transporters must be consistent with the 
HMR; that requirement, in 42 U.S.C. 6923(b), remains unchanged. Under 
these circumstances, RSPA cannot agree that there is a ``special'' 
status for State regulations on hazardous waste transporters, removing 
them from preemption under 49 U.S.C. 5125, nor that a declaration that 
the NYDEC transfer and storage requirements are 

[[Page 62534]]
preempted ``will effectively repeal a basic tenet upon which RCRA is 
based.''
    RSPA has, in fact, looked to EPA's own interpretation of RCRA, as 
requested by some of the State commenters. In its authorization of 
California's hazardous waste program, EPA stated that permit 
requirements for waste transportation ``facilities not regulated under 
RCRA would be viewed as 'broader in scope' and, therefore, not part of 
the authorized program,'' and that any such requirements could be 
challenged in an application to DOT ``which has jurisdiction over such 
matters.'' 57 FR at 32728. Accordingly, preemption issues under Federal 
hazardous material transportation law

do not affect the State's RCRA authorization. * * * EPA does not 
believe that an individual State's authorization application is the 
appropriate forum to resolve problems which clearly affect a large 
number of States. * * * [A] process is already in place intended to 
address the problem pursuant to the [HMTA].

Id. In October 29, 1992 and August 17, 1994 letters, EPA has reaffirmed 
this position.
    EPA has consistently maintained that its approval of a State's 
hazardous waste program does not preclude preemption by 49 U.S.C. 5125 
of that State's requirements--regardless of whether the latter are 
deemed ``broader in scope'' or ``more stringent'' than Federal RCRA 
requirements. Section 3009 of RCRA, which allows States to impose 
``more stringent'' requirements than those established by EPA, must be 
read consistently with Federal hazardous materials transportation law.
    A fundamental rule of construction is that two separate statutes 
should be construed in a manner which is consistent and gives effect to 
both. Morton v. Mancari, 417 U.S. 535, 551 (1974). In this case, 
Congress clearly intended RCRA to be implemented consistently with the 
HMTA. The legislative history of RCRA shows that EPA and DOT are to 
work together to maintain consistent standards for hazardous waste 
transporters which assure handling of the waste in a manner that (1) 
protects human health and the environment, and (2) does not interfere 
with transportation. H.R. Rep. No. 1491, 94th Cong., 2d Sess. 6, 27, 
reprinted in 1976 U.S. Code Cong. & Ad. News 6238, 6244, 6265.
    To carry out that intention, in section 3003(b) of RCRA (42 U.S.C. 
6923(B)), Congress encouraged EPA to consult with DOT, and it required 
EPA to promulgate hazardous waste transportation regulations in 
consultation with DOT and consistent with the HMTA and the HMR. In 
1980, Congress added section 2002(a)(6) to RCRA that the EPA 
Administrator may delegate to DOT inspection and enforcement functions 
relating to the transportation of hazardous waste, ``where such 
delegation would avoid unnecessary duplication of activity and would 
carry out the objectives of this Act and of the Hazardous Materials 
Transportation Act.'' 42 U.S.C. 6912(a)(6) (emphasis added).
    EPA's reading of the two statutes gives full effect to both. Under 
that construction, EPA-authorized State requirements governing 
hazardous waste transporters that are more stringent than EPA's own 
regulations are preempted when those requirements fail to meet the 
standards of 49 U.S.C. 5125. This properly places the power to make 
hazardous materials transportation preemption decisions with DOT, the 
agency charged by Congress to administer the Federal hazardous material 
transportation law.
    There is no basis for the position of NYDEC and other States that 
any State can avoid preemption of its hazardous waste transporter 
requirements simply by obtaining authorization under RCRA. Similarly 
unfounded is the assertion by ASTSWMO that EPA actually does (or must) 
analyze State hazardous waste transportation requirements ``for 
consistency with Federal statute and regulations * * *'' during the 
authorization process. Congress could not have intended that EPA 
(rather than DOT) assume the burden of determining whether State 
requirements are consistent with Federal hazardous material 
transportation law and the HMR.
    State requirements affecting transporters of hazardous waste are 
not ``authorized by another law of the United States,'' within the 
meaning of 49 U.S.C. 5125, simply because they are contained in an EPA-
authorized State hazardous waste program. See PD-1, above, 57 FR at 
58855. The statement in 40 CFR 271.1(i), that nothing in EPA's State-
authorization regulations ``precludes a State from'' adopting or 
enforcing more stringent requirements, is not authorization in an 
enabling sense. That does not constitute specific authorization of 
these State requirements, as is necessary to preclude preemption. 
Colorado Pub. Util. Comm'n v. Harmon, above, 951 F.2d at 1581 n.10.

C. NYDEC Transfer and Storage Requirements

1. Repackaging Prohibition
    Section 372.3(a)(7)(i) allows a transporter to transfer hazardous 
wastes incidental to transport provided that

no consolidation or transfer of loads occurs either by repackaging 
in, mixing, or pumping from one container or transport vehicle into 
another.

    The HMR contain numerous requirements covering loading, unloading, 
and handling hazardous waste during transportation. See generally 49 
CFR 173.1-173.40, Part 174 (railroads), and Part 177 (motor carriers). 
However, the HMR do not contain any general prohibition against the 
transfer of hazardous material from one container to another, or the 
combination of commodities within the same packaging. For example, 49 
CFR 173.21(e) forbids mixing of two materials in the same packaging or 
container when it ``is likely to cause a dangerous evolution of heat, 
or flammable or poisonous gases or vapors, or to produce corrosive 
materials.'' In another section, the HMR provide that

    Two or more materials may not be loaded or accepted for 
transportation in the same cargo tank motor vehicle if, as a result 
of any mixture of the materials, an unsafe condition would occur, 
such as an explosion, fire, excessive increase in pressure or heat, 
or the release of toxic vapors.

49 CFR 173.33(a)(2). And 49 CFR 173.10(e) forbids loading certain 
flammable materials from tank trucks or drums into tank cars on the 
carrier's property. As mentioned earlier, EPA's regulations provide 
that a hazardous waste transporter must also follow the requirements 
applicable to generators if it ``[m]ixes hazardous wastes of different 
DOT shipping descriptions by placing them into a single container.'' 40 
CFR 263.10(c).
    With regard to motor carriers only, the HMR prohibit the transfer 
of a Class 3 (flammable liquid) material between containers or vehicles 
``on any public highway, street, or road, except in case of 
emergency.'' 49 CFR 177.856(d). (The HMR also contain segregation 
requirements, applicable to rail and motor carriers, limiting which 
hazardous materials may be ``loaded, transported, or stored together.'' 
49 CFR 174.81(f), 177.848(d).)
    CWTI asserts that NYDEC's prohibition against repackaging 
containers of hazardous waste is preempted because it is not 
substantively the same as the provisions in the HMR concerning ``the 
packing, repacking, [and] handling * * * of 

[[Page 62535]]
hazardous material,'' 49 U.S.C. 5125(b)(1)(B), and because it is an 
obstacle to the HMR. It notes that EPA does not preclude the 
commingling of hazardous waste by transporters, but merely specifies 
that a transporter who mixes wastes of different DOT shipping 
descriptions must comply with standards applicable to waste generators. 
It argues that States may not treat hazardous wastes differently than 
``fungible products such as coal, petroleum or acids'' that may be 
repackaged during transportation.
    CWTI points to EPA's March 1, 1990 letter, indicating that 
repackaging of hazardous waste, for transportation, does not constitute 
treatment for which a permit is required. It states that the absolute 
prohibition against repackaging restricts transporters from taking 
actions that actually promote safety, on the basis that it is safer to 
consolidate loads from cargo tanks to tank cars and to combine the 
contents of many individual packagings from multiple generators for 
shipment to a TSD facility.
    Other commenters, including Dart Trucking Company and Price 
Trucking Company, complain that this restriction against repackaging 
results in additional truck travel, wasted fuel, increased emissions, 
and the inability to transfer wastes between trucks and railroads. AAR 
also states that:

It generally is in the public interest to permit truck to rail 
transfers of hazardous waste. Rail transportation is the best mode 
of transporting hazardous waste; railroads have a favorable incident 
rate and no ``midnight dumping'' problem. Furthermore, rail 
transportation of hazardous waste to a recycling facility often can 
be cheaper; heretofore, it has been public policy to make recycling 
economical.

AAR argues that, because the HMR only prohibit truck-to-rail transfers 
of certain flammable materials in limited circumstances, NYDEC's 
absolute ban on transferring hazardous waste is inconsistent with the 
HMR and therefore preempted.
    The Hazardous Materials Advisory Council (HMAC) asserts that 
hazardous wastes do not have any additional risks that justify NYDEC's 
``discriminatory regulation'' of hazardous wastes differently from 
other hazardous materials. Safety-Kleen also believes that ``the same 
guidelines that are afforded to all non-waste hazardous materials'' 
should be applied to hazardous waste transporters; it advises that it 
spends approximately $500,000 per year to obtain NYDEC TSD permits ``in 
order to commingle and repackage our mineral spirit solvents for 
ultimate transport to our recycle centers'' outside the State of New 
York.
    CWTI argues that 49 CFR 177.834(h) is not applicable to transfer 
facilities. That section, applicable only to motor carriers, provides 
in part that

There must be no tampering with [a] container or the contents 
thereof nor any discharge of the contents of any container between 
point of origin and point of billed destination. Discharge of 
contents of any container, other than a cargo tank, must not be made 
prior to removal from the motor vehicle.

According to CWTI, this provision covers ``illegal activity, such as 
stealing freight,'' and ``discharges into the environment, not the 
movement of material between DOT-authorized packagings.'' Referring to 
an exchange of correspondence between the Federal Railroad 
Administration (FRA) and Envirosafe Services of America discussing the 
application of the HMR to the transfer of hazardous wastes ``from 
gondolas to dump trucks,'' CWTI notes that FRA never indicated that 
those transfers were prohibited. NCH Corporation also argues that the 
``billed destination'' may be an intermediate point, such as a transfer 
facility, and that 177.834(h)

is clearly intended to bar irresponsible handling or diversion of 
hazardous materials in transportation, not to prevent the orderly 
transfer of material from one DOT-approved container to another at a 
transfer facility. * * * The transfer of material from container to 
container in the ordinary course of business, with no release into 
the environment, is not a ``discharge.''

    NYDEC acknowledges that ``the RCRA uniform manifest system does 
allow the commingling of wastes'' by transporters, while NYDEC's 
transfer and storage requirements ``do not allow consolidation of loads 
by repackaging, mixing or pumping an any intermediate, non-TSD location 
short of the RCRA permitted `billed destination' which the generator 
specifies.'' It argues that its prohibition against repackaging is 
``consistent with and complimentary to'' 177.834(h), since both its 
requirement and the HMR are ``aimed at preventing a release of the 
hazardous material.'' NYDEC states that the term ``billed destination'' 
in 177.834(h) ``plainly refers to the ultimate destination,'' which is 
the TSD facility from the generator's perspective.
    NYDEC further argues that the HMR do not authorize, ``either 
explicitly or implicitly,'' the commingling of hazardous wastes by 
transporters, but that 177.834(h)

is obviously directed toward preventing unqualified persons from 
tampering with packaging and containers. This ensures that wastes 
are not commingled, eliminating the identification of the generator 
and potentially destroying the integrity of the container * * *

For this reason, NYDEC states that its repackaging prohibition is not 
an obstacle to accomplishing and carrying out the HMR, but rather 
furthers the ``main objective of HMTA [which] is the safe transport of 
hazardous materials.'' According to NYDEC, added costs of doing 
business do not constitute an ``obstacle''; it argues that an obstacle 
exists ``only when the regulations in question require conduct that is 
prohibited by [49 U.S.C.] Chapter 51 or are incompatible with conduct 
required by Chapter 51. * * *''
    California asserts, as does NYDEC, that the NYDEC ``loading and 
unloading'' requirement in 6 NYCRR 372.3(a)(7)(i) is not within the 
list of covered subjects in 49 U.S.C. 5125(b)(1). However, it further 
states that, if loading and unloading are covered subjects, the NYDEC 
repackaging prohibition is substantively the same as 177.834(h), 
because ``[t]he two regulations contain the same goal of disallowing 
the tampering with and discharging of hazardous materials from 
containers before a transporter reached its destination.''
    Several of the State commenters contend that the NYDEC prohibition 
against repackaging is not preempted because it regulates a facility 
rather than transportation. Maine does

not believe that opening containers of hazardous waste, pouring, 
pumping, mixing, or commingling are within the realm of transport 
activities. Such activities constitute hazardous waste management 
activities and Maine decided long ago that these activities must be 
conducted at facilities which meet appropriate design standards and 
in accordance with procedures developed to protect public health, 
safety, and the environment. We further contend that transfer 
activities fall under the realm of a storage/management activity and 
not a transport activity.

Similarly, ASTSWMO stated that opening containers and commingling waste 
are ``management activities,'' for which there should be ``the 
safeguards of contingency plans, waste analysis plans, trained 
personnel, sampling, compatibility determinations, etc.'' The Public 
Utilities Commission of Ohio (PUCO) also states that,

in light of the fact that there are no Federal standards for 
hazardous waste facilities, CWTI bears a difficult burden to 
demonstrate that the NYDEC requirements, as applied or enforced, 
create an obstacle to the accomplishment and execution of [49 U.S.C. 
Chapter 51] and the Hazardous Materials Regulations. Generally, 
where there are Federal standards or regulations, additional 

[[Page 62536]]
state regulations may run the risk of confusing the regulated industry. 
With respect to hazardous waste transfer facilities, there are no 
Federal standards or regulations; therefore, the NYDEC regulations 
create no risk of confusing the regulated industry.

Both ASTSWMO and PUCO urge RSPA not to find preemption. ASTSWMO 
believes that ``these non-transport issues'' should be addressed by EPA 
in a rulemaking process, rather than by RSPA in a preemption 
determination. PUCO sees the ``need for uniform national standards for 
hazardous waste transfer facilities'' beyond current EPA and DOT 
requirements, and it asks that RSPA withhold any ruling on CWTI's 
application until those uniform standards are established. It 
recommends as a model the procedures being followed under 49 U.S.C. 
5119 for establishing uniform State forms and procedures for 
registration and permitting of hazardous material transporters.
    CWTI and other commenters have explained that NYDEC's prohibition 
against repackaging hazardous wastes prevents transporters from 
transferring the contents of many drums into a cargo tank, from 
transferring the contents of several cargo tanks into a tank car (or 
from dump trucks into a gondola or hopper car), and from transferring 
the contents from rail cars into trucks. EPA has disclaimed any 
``intention of discouraging rail transportation of hazardous wastes,'' 
and stated that 1980 amendments to its regulations specifically allow 
``intermodal transportation involving railroads without the need for a 
manifest accompanying the waste during the rail portion of the 
shipment.'' Transportation of Hazardous Waste by Rail, 45 FR 86970, 
86971 (Dec. 31, 1980). Intermodal shipments of hazardous wastes in bulk 
cannot take place without the ``repackaging, mixing, or pumping'' 
prohibited by NYDEC's section 372.3(a)(7)(i).
    By its very terms, this prohibition involves ``repackaging,'' and 
is not substantively the same as the HMR's requirements for ``the 
packing, repacking, [and] handling * * * of hazardous material.'' 49 
U.S.C. 5125(b)(1)(B). The prohibited repackaging activities fall within 
the scope of ``repacking'' and ``handling,'' specifically because they 
involve ``loading'' and ``unloading.'' DOT has never interpreted 49 CFR 
177.834(h) as a general prohibition against transferring hazardous 
materials from one approved container to another. This is confirmed by 
the limited prohibition, covering only flammable liquids, against 
transfer from one container or vehicle to another on a ``public 
highway, street, or road,'' subject to an exception with prescribed 
procedures for emergency situations. 49 CFR 177.856(d).
    There is also no indication that New York State (which has adopted 
both 177.834(h) and 177.856(d) as State law) has interpreted the former 
section to restrict either (1) combining the contents of several 
packages of fungible commodities or (2) transferring materials between 
modes of transportation. Section 177.834(h) must also be understood in 
light of the historical practice, recognized in EPA's March 1, 1990 
letter interpretation, that transporters may consolidate or mix 
hazardous wastes of the same DOT shipping description without thereby 
engaging in ``treatment'' (for which a permit is required) or becoming 
subject to the regulations applying to hazardous waste generators.
    NYDEC's attempt to characterize the repackaging prohibition in 6 
NYCRR 372.3(a)(7)(i) as a ``facility'' requirement also cannot insulate 
it from preemption. That prohibition applies to the ``repackaging'' and 
``handling'' of hazardous materials in transportation, and it is not 
substantively the same as

[[Page 62537]]

the requirements in the HMR. For that reason, 49 U.S.C. 5125(b)(1)(B) 
preempts 6 NYCRR 372.3(a)(7)(1). In addition, NYDEC's prohibition 
against repackaging containers of hazardous waste appears to be 
inconsistent with the HMR because it applies solely to waste material 
``and applies differently from or in addition to'' the HMR's 
requirements concerning the packaging of hazardous materials. 49 CFR 
171.3(c)(1).
2. Manifest Entry for Transfer Between Vehicles
    Section 372.3(a)(7)(ii) allows a transporter to transfer hazardous 
wastes incidental to transport provided that

transfer of hazardous waste from one vehicle to another is indicated 
on the Manifest as Second Transporter.

    The HMR require that a hazardous waste manifest be prepared in 
accordance with EPA's regulations in 40 CFR 262.20 and be ``signed, 
carried, and given'' as specified in 49 CFR 172.205. A manifest which 
contains all the information required by DOT may be used as the DOT 
shipping paper. 49 CFR 172.205(h). Procedures for use of the manifest 
when wastes are shipped by railroad, including transfers between rail 
and non-rail carriers, are specifically set forth in 40 CFR 263.20(f), 
and allow a shipping paper to accompany the shipment (rather than the 
manifest).
    EPA's Uniform Hazardous Waste Manifest form is shown in the 
Appendix to 40 CFR Part 262. Among the information required are the 
company name and EPA identification number for the first and second (if 
necessary) transporters. (If more than two transporters will be used to 
transport the waste, a continuation sheet must be used to ``list the 
transporters in the order they will be transporting the waste. * * * 
Every transporter used between the generator and the [TSD] designated 
facility must be listed.'') In a shaded portion, for information ``not 
required by Federal law,'' are spaces for the State identification 
number and telephone number of any transporter. In these spaces, NYDEC 
requires ``State of registration and motor vehicle license plate number 
of waste carrying portion of vehicle used to transport'' plus 
``[t]elephone number of authorized agent.'' 6 NYCRR Part 372, Appendix 
30. On the lower portion of the form are spaces for the transporter(s) 
to acknowledge receipt of the hazardous waste, by name, signature, and 
date.
    RSPA has found that any State requirement that ``significantly 
alter[s] the information supplied on the manifest,'' is preempted. PD-
2(R), above, 58 FR at 11183 (preempting Illinois requirement to round 
quantities of hazardous waste to the nearest whole numbers, while the 
uniform manifest form specifying entry of the ``total quantity'' of 
hazardous waste may require the use of fractions or decimals, depending 
on the unit of measure).
    Neither EPA's regulations nor the HMR contain any requirement for a 
single transporter to indicate, by license plate number or otherwise, 
which vehicle is used to carry the hazardous waste, or that waste has 
been transferred from one vehicle to another.
    CWTI argues that NYDEC's requirement to indicate on the manifest 
when waste is transferred from one vehicle to another is not 
substantively the same as the HMR's requirements for ``the preparation, 
execution, and use of shipping documents related to hazardous material 
and requirements related to the number, contents, and placement of 
those documents.'' 49 U.S.C. 5125(b)(1)(C). It asserts that a EPA 
negotiated rulemaking committee ``specifically considered and rejected 
an effort to require notation by license plate number'' when vehicles 
of the same transporter were changed.
    AAR states that rail cars are usually transferred between carriers 
``without face-to-face contact,'' and ``shipping paper information may 
be exchanged between carriers electronically.'' According to AAR, 
railroads are

[[Page 62538]]

excepted from the signature requirements, ``including shipments which 
ultimately are transferred between the rail and truck modes,'' citing 
40 CFR 263.20(f) and 49 CFR 172.205(f).
    NYDEC did not specifically address the requirement in 6 NYCRR 
372.3(a)(7)(ii) that the manifest show any transfer of hazardous waste 
from one vehicle to another owned by the same transporter. Its written 
comments indicate this requirement was among those being eliminated, 
but this requirement was retained in the amendments filed November 15, 
1994.
    In coordinated, but separate, rulemakings in March 1984, EPA and 
DOT summarized the development of a uniform hazardous waste manifest 
form. EPA, Hazardous Waste Management System, 49 FR 10490; RSPA Docket 
No. 145D, Hazardous Waste Manifest; Shipping Papers, 49 FR 10507 (Mar. 
20, 1984). As EPA indicated, when it established the manifest system in 
1980, it decided to allow ``the regulated community to adapt its 
present practices, notably DOT's requirements for shipping papers, to 
accommodate the new EPA requirements.'' 49 FR 10490 (footnote omitted). 
Accordingly, EPA specified only ``the required information that must 
accompany the waste,'' and did not require a particular format. Id.
    The lack of a standard form soon resulted in a ``proliferation of 
manifests as various States decided to develop and print their own 
forms,'' burdening both generators and transporters. Id. Based on 
recommendations by ASTSWMO and HMAC, and the consideration of 
approximately 300 comments to the two agencies, EPA and DOT amended 
their separate regulations to require use of a uniform manifest, 
effective in September 1984. At the time, they indicated that, 
``[u]nder limited circumstances, States may impose [additional] 
information or management requirements,''--but only on the waste 
generator. 49 FR at 10492. As stated by EPA:

States are prohibited from applying enforcement sanctions on the 
transporter during the transportation of hazardous waste for any 
failure of the form to show optional State information entries. 
States may hold transporters responsible only for ensuring that the 
information included in the federally-required portions of the 
Uniform Manifest form accompanies the shipment.

Id. DOT's preamble similarly stated that, ``no State may require a 
carrier to provide information with or on the manifest which is in 
addition to that authorized by the uniform manifest system.'' 49 FR 
10508. Both agencies noted that States could require generators to send 
other information ``under separate cover,'' 49 FR at 10492,'' or 
``directly to the appropriate agency of [the] State * * * [c]onsidering 
that the conventional means of transmitting data by mail, wire, 
telephone and other means are very reliable and readily available.'' 49 
FR at 10506.
    Neither RCRA nor EPA's regulations authorize a State to require on 
the manifest an indication that hazardous wastes have been transferred 
between vehicles owned or operated by the same transporter. The 
manifest must contain only the transporter's ``company name'' and EPA 
identification number. 40 CFR Part 262, Appendix. The HMR also contain 
no requirement to identify a shipment with a particular vehicle. For 
this reason, the requirement in 6 NYCRR 372(a)(7)(ii) that the 
transporter indicate, on the manifest, any ``transfer of hazardous 
waste from one vehicle to another,'' is preempted because it is not 
``substantively the same as'' the HMR's requirements for ``the 
preparation, execution, and use of shipping

[[Page 62539]]

documents related to hazardous material and requirements related to the 
number, contents, and placement of those documents.'' 49 U.S.C. 
5125(b)(1)(C). In addition, NYDEC's requirement for indicating the 
second vehicle on the manifest appears to be inconsistent with the HMR 
because it applies solely to waste material ``and applies differently 
from or in addition to'' the HMR's requirements concerning the 
``contents of shipping papers, including hazardous waste manifests.'' 
49 CFR 171.3(c)(3).
3. Secondary containment
    Section 372.3(a)(7)(iii) allows a transporter to transfer hazardous 
wastes incidental to transport provided that

if consolidation of loads takes place by moving containers from one 
transport vehicle to another or containers are removed from 
transport vehicles prior to being reloaded, the transfer or storage 
area must be designed to meet secondary containment requirements in 
accordance with subdivision 373-2.9(f) of this Title.

    The containment system specified in section 373-2.9(f) includes 
requirements for an impervious base, drainage (unless containers are 
elevated), capacity limits, prevention of run-on into the containment 
system, and timely removal of spills or accumulated precipitation--
except that containers of wastes that do not contain free liquids 
(other than certain acute hazardous wastes) need only be stored where 
there is drainage or the containers are elevated or otherwise protected 
from contact with accumulated liquid.
    The HMR do not contain any requirements concerning the physical 
design or construction of fixed facilities where transporters may 
exchange hazardous materials between vehicles, including intermodal 
operations. Rather, the HMR focus on the suitability of the container 
and proper handling activities. Accordingly, 49 CFR 173.24(b) requires 
that:

    Each package used for the shipment of hazardous materials under 
this subchapter shall be designed, constructed, maintained, filled, 
its contents so limited, and closed, so that under conditions 
normally incident to transportation--(1) * * * there will be no 
identifiable (without the use of instruments) release of hazardous 
materials to the environment; [and] (2) The effectiveness of the 
package will not be substantially reduced; for example, impact 
resistance, strength, packaging compatibility, etc. must be 
maintained for the minimum and maximum temperatures encountered 
during transportation.

Cargo tanks and tank cars must be built to specifications and 
periodically retested and reinspected. See 49 CFR 180.407 (cargo 
tanks), 180.509 (tank cars). Specific procedures, and attendance 
requirements, apply to the unloading of both tank cars and cargo tanks. 
49 CFR 174.67 (tank cars), 177.834 (cargo tanks). Separation and 
segregation requirements also exist to prevent mixing of incompatible 
materials. 49 CFR 174.81 (rail cars), 177.848 (motor vehicles).
    CWTI contends that NYDEC's requirement for secondary containment is 
``a direct challenge to the integrity of DOT packaging standards.'' 
According to CWTI, the HMR were based on ``the premise that packagings 
can be built to contain hazards under conditions normal to 
transportation.'' It states additional requirements in the HMR 
supplement this central premise: segregation and separation 
requirements, prohibitions on certain types of materials transported, 
and requirements for immediate notification of any spills, the clean up 
of any discharge, and financial responsibility for environmental 
restoration. CWTI also refers to the requirement in 49 CFR Part 130 for 
shippers and transporters of petroleum oils (including hazardous wastes 
containing these oils) in containers larger than 3,500 gallons to 
prepare response plans.
    CWTI states that normal industry practice is to perform loading, 
unloading, and storage of hazardous wastes ``on impervious surfaces,'' 
but that ``requirements for sloping and spill/run-off containment are 
unnecessary.'' It

[[Page 62540]]

further asserts that both DOT and EPA have determined that there is no 
need for secondary containment requirements at hazardous waste transfer 
facilities, alluding to the absence of any such requirements in both 
agency's regulations. CWTI places special significance on EPA's failure 
to impose additional requirements after it specifically requested 
comments in the preamble to its December 31, 1980 rulemaking. With 
respect to a change to 40 CFR 263.12, EPA stated:

    The amendments provide that the hazardous wastes being held at 
transfer facilities must be in containers (including tank cars and 
cargo tanks) which meet DOT specifications for packaging under 49 
CFR 173, 178 and 179. This provision should ensure that the 
hazardous waste remains properly packaged during this phase of 
transportation. Although the Agency believes that this requirement 
should provide adequate protection of human health and the 
environment during the short period that hazardous wastes are held 
at a transfer facility, we solicit comments on whether additional 
requirements should be imposed, such as contingency plans, personnel 
training, and inspections. Comments are specifically requested on 
which, if any, of the [TSD facility] Part 265 requirements should be 
placed on transporters who hold shipments of hazardous waste for ten 
days or less.

Interim final amendments and request for comments, Hazardous Waste 
Management System, etc., 45 FR 86966, 86967 (Dec. 31, 1980).
    NYDEC argues that the focus of Federal hazardous materials 
transportation law is ``explicitly limited to `transportation' 
issues,'' while its requirements for secondary containment are 
``facility requirements which establish minimum safety standards for 
transfer facilities, and, contrary to CWTI's assertion, are not 
intended to be a challenge to the integrity of DOT packaging 
standards.'' NYDEC also contends that these ``facility standards, 
rather than impairing the transportation of hazardous materials, serve 
to advance what DOT has described as the `manifest purpose of the HMTA' 
by promoting `safety in the transportation of hazardous materials.''' 
(Quoting from IR-2, Rhode Island Rules and Regulations Governing the 
Transportation of Liquefied Natural Gas and Liquefied Propane Gas, 44 
FR 75566, 75571 (Dec. 20, 1979), decision on appeal, 45 FR 71881 (Oct. 
30, 1980).)
    According to NYDEC, the secondary containment requirement 
``advances HMTA's goal of safety in the transportation of hazardous 
materials by ensuring that hazardous materials which may inadvertently 
escape from leaking or ruptured containers do not enter the 
environment, where they are likely to present a risk to human health or 
the environment.'' Maine similarly asserts that:

Absorbent pads and drip pans do not provide the same measure of 
security that is present at a permitted facility. Facility standards 
such as impervious surfaces combined with slopes and spill 
containment provide an extra measure of environmental protection 
that cannot be achieved by allowing this activity to be regulated 
under HMTA as a transportation activity.

The Connecticut Department of Environmental Protection also believes 
that DOT packaging standards alone will not ``guarantee that hazardous 
materials will not leak or otherwise be released from their package.'' 
It cites two incidents ``involving containers that failed while in the 
course of transportation,'' but acknowledges that ``both shippers 
utilized containers that did not meet DOT specification/standards and/
or met DOT standards/specification but were still improperly packed * * 
* '' It further states that shippers often put hazardous wastes into 
``used containers since the material has negative value,'' and that 
human errors cause releases from containers that meet DOT's 
specifications or standards.

[[Page 62541]]

    Connecticut notes that EPA requires secondary containment for TSD 
facilities, and claims that ``wastes are more likely to be repacked at 
transfer facilities rather than virgin materials.'' It also comments 
that transfers actually take place ``both on and off impervious 
surfaces and with or without secondary containment,'' and that remedial 
measures are not sufficient when ``the damage has already been done.'' 
PUCO states that the existing industry practice to load, unload and 
store hazardous wastes on impervious surfaces:

Demonstrates the need for a national uniform standard to ensure that 
all hazardous waste transporters are engaging in these activities in 
a safe, efficient manner. The need for, and the type of, secondary 
containment mechanism can be established through the rulemaking 
process.

    As already discussed in connection with NYDEC's arguments on 
``standing,'' subpart III.A. above, the definition of 
``transportation'' in 49 U.S.C. 5102(12) brings transportation-related 
loading, unloading and storage of hazardous materials within the scope 
of Federal hazardous materials transportation law, including the 
preemption provisions in 49 U.S.C. 5125. There is no difference in this 
regard where these transportation-related activities take place, and 
non-Federal requirements are not somehow immunized from preemption 
simply because they purport to apply to what the transporter does at a 
``facility.'' As noted in Consolidated Rail Corp. v. Bayonne, 724 F. 
Supp. 320, 330 (D.N.J. 1989), the ``extent of federal regulation in the 
area of the transportation, loading, unloading and storage of hazardous 
materials is comprehensive'' (holding that the HMTA preempted a city 
limitation on the number of loaded or unloaded butane rail cars 
permitted on a storage and blending facility).
    Two prior inconsistency rulings confirm that non-Federal 
requirements that purport to regulate ``facilities'' are subject to 
preemption when those requirements affect the transportation-related 
loading, unloading and storage of hazardous materials. In the first, 
RSPA found that a prohibition against holding hazardous materials for 
more than 48 hours at a railroad yard without a permit was found to be 
inconsistent with the HMR which allow retention for up to 120 hours, if 
there are intervening weekends and holidays. IR-19, Nevada Public 
Service Commission Regulations Governing Transportation of Hazardous 
Materials, 52 FR 24404, 24406, 24409 (June 30, 1987), decision on 
appeal, 53 FR 11600 (Apr. 7, 1988). In subsequent litigation, the Ninth 
Circuit considered the same requirement and reversed a lower court 
holding that the HMR did not address the ``storage of hazardous 
materials.'' Southern Pac. Trans. Co. v. Public Serv. Comm'n, above, 
909 F.2d at 356.
    In the other ruling, RSPA considered San Jose, California's 
requirements for secondary containment and segregation of hazardous 
materials at a motor carrier's transfer facility. IR-28, above. In 
arguments similar to those presented by NYDEC and other States, the 
city argued that its ordinance ``regulates storage only and that it 
does not regulate transportation nor purport to do so.'' 55 FR at 8887. 
However, RSPA found that San Jose's ``requirements per se present 
consistency problems when they are applied to storage of hazardous 
materials incidental to their transportation.'' 55 FR at 8893.

    State or local imposition of containment or segregation 
requirements for the storage of hazardous materials incidental to 
the transportation thereof different from, or additional to those in 
[49 CFR] Sec. 177.848(f) of the HMR create confusion concerning such 
requirements and the likelihood of noncompliance with 
Sec. 177.848(f). Since such state or local requirements, therefore, 
are obstacles to the execution of an HMR provision, they are 
inconsistent with the HMR * * *

Id.
    In the same fashion, NYDEC fails to achieve its asserted goal of 
promoting

[[Page 62542]]

safety in the transportation of hazardous materials because its 
secondary containment requirement creates confusion as to requirements 
in the HMR and increases the likelihood of noncompliance with the HMR. 
To the extent that States perceive the need for a uniform national 
standard requiring secondary containment at transfer facilities, the 
appropriate course is to petition RSPA to add this requirement to the 
HMR in accordance with 49 CFR 106.31. The secondary containment 
requirement in 6 NYCRR 372.3(a)(7)(iii) is preempted by 49 U.S.C. 
5125(a)(2).

IV. Ruling

    For the reasons set forth above, Federal hazardous material 
transportation law preempts NYDEC's transfer and storage requirements 
at 6 NYCRR 372.3(a)(7). Subsection (i), prohibiting the repackaging of 
hazardous wastes, concerns the packing, repacking and handling of 
hazardous materials, and it is not substantively the same as the HMR. 
49 CFR 5125(b)(1)(B). Subsection (ii), requiring an indication on the 
manifest of a transfer of hazardous wastes between vehicles, concerns 
the preparation, use and contents of shipping documents related to 
hazardous material, and it is not substantively the same as the HMR. 49 
U.S.C. 5125(b)(1)(C). Subsection (iii) of 6 NYCRR 372.3(a)(7), 
requiring secondary containment for the transfer or storage of 
hazardous wastes at transfer facilities, is preempted because it is an 
obstacle to the accomplishment and carrying out of the HMR's provisions 
on packaging and segregation. 49 U.S.C. 5125(a)(2).

V. Petition for Reconsideration/Judicial Review

    In accordance with 49 CFR 107.211(a), ``[a]ny person aggrieved'' by 
this decision may file a petition for reconsideration within 20 days of 
service of this decision. Any party to this proceeding may seek review 
of RSPA's decision ``in an appropriate district court of the United 
States * * * not later than 60 days after the decision becomes final.'' 
49 U.S.C. 5125(f).
    This decision will become RSPA's final decision 20 days after 
service if no petition for reconsideration is filed within that time. 
The filing of a petition for reconsideration is not a prerequisite to 
seeking judicial review of this decision under 49 U.S.C. 5125(f).
    If a petition for reconsideration of this decision is filed within 
20 days of service, the action by RSPA's Associate Administrator for 
Hazardous Materials Safety on the petition for reconsideration will be 
RSPA's final decision. 49 CFR 107.211(d).

    Issued in Washington, D.C. on November 30, 1995.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 95-29648 Filed 12-5-95; 8:45 am]
BILLING CODE 4910-60-P