[Federal Register Volume 65, Number 157 (Monday, August 14, 2000)]
[Notices]
[Pages 49633-49635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-20482]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

[Docket No. RSPA-00-7740 (PDA-25(R))]


Application by the Kiesel Company for a Preemption Determnination 
as to Missouri Prohibition of Recontainerization of Hazardous Waste at 
Transfer Facility

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

[[Page 49634]]


ACTION: Public notice and invitation to comment.

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SUMMARY: Interested parties are invited to submit comments on an 
application by The Kiesel Company (Kiesel) for an administrative 
determination whether Federal hazardous material transportation law 
preempts a Missouri regulation prohibiting the recontainerization of 
hazardous waste by a transporter at a transfer facility.

Dates: Comments received on or before September 28, 2000, and rebuttal 
comments received on or before November 13, 2000, will be considered 
before issuance of an administrative ruling on Kiesel's application. 
Rebuttal comments may discuss only those issues raised by comments 
received during the initial comment period and may not discuss new 
issues.

ADDRESSES: The application and all comments received may be reviewed in 
the Dockets Office, U.S. Department of Transportation, Room PL-401, 400 
Seventh Street, SW, Washington, DC 20590-0001. The application and all 
comments are also available on-line through the home page of DOT's 
Docket Management System, at ``http://dms.dot.gov.''
    Comments must refer to Docket No. RSPA-00-xxxx and may be submitted 
to the docket either in writing or electronically. Send three copies of 
each written comment to the Dockets Office at the above address. If you 
wish to receive confirmation of receipt of your written comments, 
include a self-addressed, stamped postcard. To submit comments 
electronically, log onto the Docket Management System website at http://dms.dot.gov, and click on ``Help & Information'' to obtain 
instructions.
    A copy of each comment must also be sent to (1) Kiesel's attorney, 
Mr. Richard Greenberg, Rosenbloom, Goldenhersh, Silverstein & Zafft, 
P.C., 7743 Forsyth Blvd., Fourth Floor, St. Louis, MO 63105-1812, and 
(2) Mr. Stephen M. Mahood, Director, Missouri Department of Natural 
Resources, P.O. Box 176, Jefferson City, MO 65102. A certification that 
a copy has been sent to these persons must also be included with the 
comment. (The following format is suggested: ``I certify that copies of 
this comment have been sent to Messrs. Greenberg and Mahood at the 
addresses specified in the Federal Register.'')
    A list and subject matter index of hazardous materials preemption 
cases, including all inconsistency rulings and preemption 
determinations issued, are available through the home page of RSPA's 
Office of the Chief Counsel, at ``http://rspa-atty.dot.gov.'' A paper 
copy of this list and index will be provided at no cost upon request to 
the individual named in For Further Information Contact below.

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. Application for a Preemption Determination

    Kiesel has applied for a determination that Federal hazardous 
material transportation law, 49 U.S.C. 5101 et seq., preempts 
Missouri's prohibition of recontainerization of hazardous wastes by a 
transporter at a transfer facility.
    In its application, Kiesel states that it is a licensed hazardous 
waste transporter that has a rail siding at its facility located within 
the City of St. Louis, Missouri. Kiesel advises that it wants to off-
load hazardous waste from rail cars to trucks ``for transport to a 
disposal site in Illinois licensed to receive and dispose of hazardous 
waste.'' According to Kiesel, it has been advised by the Missouri 
Department of Natural Resources (DNR) that this transfer from rail car 
to motor vehicle would constitute a prohibited ``recontainerization'' 
of hazardous waste. Kiesel states that DOT has found ``an identical 
regulation'' preempted in Preemption Determination (PD) No. 12(R), New 
York Department of Environmental Conservation Requirements on the 
Transfer and Storage of Hazardous Waste Incidental to Transportation, 
63 FR 62517 (Dec. 6, 1995), decision on petition for reconsideration, 
65 FR 15970 (Apr. 3, 1997), petition for judicial review dismissed, New 
York v. U.S. Dep't of Transportation, 37 F. Supp. 2d 152 (N.D.N.Y. 
1999). Kiesel refers to these decisions in which, according to Kiesel, 
DOT ``recognized that the prohibition of recontainerization `applies to 
the ``repackaging'' and ``handling'' of hazardous materials and 
transportation and is not substantively the same as requirements in the 
HMR.'''
    The DNR's regulations on transporters of hazardous waste are set 
forth in 10 CSR 25-6.263 and consist of Federal regulations issued by 
DOT and the Environmental Protection Agency (EPA), plus additional 
State requirements. Among the additional State requirements is the 
following prohibition against recontainerization in 10 CSR 25-
6.263(2)(A).10.H:

    Recontainerization of hazardous wastes at a transfer facility is 
prohibited; however, hazardous waste containers may be overpacked to 
contain leaking or to safeguard against potential leaking. When 
containers are overpacked, the transporter shall affix labels to the 
overpack container, which are identical to the labels on the 
original shipping container; * * *

    In 10 CSR 25-6.263(1), DNR has adopted and incorporated by 
reference EPA's ``Standards Applicable to Transporters of Hazardous 
Waste'' in 40 CFR part 263; DOT's Hazardous Materials Regulations in 49 
CFR parts 171-180; and DOT's Drug Testing and Federal Motor Carrier 
Safety Regulations in 49 CFR parts 40, 383, 387, and 390-397 (except 
for Sec. 390.3(f)(2)). As discussed in PD-12(R), 60 FR at 62534, 
neither EPA's regulations nor the HMR contain any general prohibition 
against the transfer of hazardous materials from one container to 
another, or the combination of commodities within the same packaging. 
Specific provisions in the HMR prohibit:

--mixing 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.'' 49 CFR 
173.21(e).
--loading two or more materials 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).
--loading certain flammable materials from tank trucks or drums into 
tank cars on the carrier's property. 49 CFR 173.10(e).
--transferring 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).

    In addition, the HMR 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). 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).

II. Federal Preemption

    Section 5125 of Title 49 U.S.C. contains several preemption 
provisions that are relevant to Kiesel's application. Subsection (a) 
provides that--in the absence of a waiver of preemption by

[[Page 49635]]

DOT under Sec. 5125(e) or specific authority in another Federal law--a 
requirement of a State, political subdivision of a State, or Indian 
tribe is preempted if--

    (1) complying with a requirement of the State, political 
subdivision or tribe and a requirement of this chapter or a 
regulation issued 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.

    These two paragraphs set forth the ``dual compliance'' and 
``obstacle'' criteria that RSPA had applied in issuing inconsistency 
rulings prior to 1990, under the original preemption provision in the 
Hazardous Materials Transportation Act (HMTA). Pub. L. 93-633 
Sec. 112(a), 88 Stat. 2161 (1975). 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, Inc., 435 U.S. 
151 (1978).
    Subsection (b)(1) of 49 U.S.C. 5125 provides that a non-Federal 
requirement concerning any of the following subjects, that is not 
``substantively the same as'' a provision of Federal hazardous material 
transportation law or a regulation prescribed under that law, 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.

To be ``substantively the same,'' the non-Federal requirement must 
``conform[] in every significant respect to the Federal requirement. 
Editorial and other similar de minimis changes are permitted.'' 49 CFR 
107.202(d).

    These preemption provisions in 49 U.S.C. 5125 carry out Congress's 
view that a single body of uniform Federal regulations promotes safety 
in the transportation of hazardous materials. In considering the HMTA, 
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). When it amended the HMTA 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. A Federal Court of Appeals has 
found that uniformity was the ``linchpin'' in the design of the HMTA, 
including the 1990 amendments that expanded the original preemption 
provisions. Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1575 
(10th Cir. 1991). (In 1994, Congress revised, codified and enacted the 
HMTA ``without substantive change,'' at 49 U.S.C. Chapter 51. Pub. L. 
103-272, 108 Stat. 745.)

III. Preemption Determinations

    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. The 
Secretary of Transportation has delegated authority to RSPA to make 
determinations of preemption, except for those that concern highway 
routing, which have been delegated to the Federal Motor Carrier Safety 
Administration. 49 CFR 1.53(b).
    Section 5125(d)(1) requires that notice of an application for a 
preemption determination must be published in the Federal Register. 
Following the receipt and consideration of written comments, RSPA will 
publish its determination in the Federal Register. See 49 CFR 107.209. 
A short period of time is allowed for filing of petitions for 
reconsideration. 49 CFR 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, the Fifth Amendment or other 
provisions 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 policies set forth in Executive Order 
No. 13132, entitled ``Federalism'' (64 FR 43255 (August 4, 1999). 
Section 4(a) of that Executive Order authorizes preemption of State 
laws only when a statute contains an express preemption provision, 
there is other clear evidence that Congress intended to preempt State 
law, 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.

IV. Public Comments

    All comments should be limited to the issue whether 49 U.S.C. 5125 
preempts the first sentence of 10 CSR 25-6.263(2)(A)10.H. Comments 
should specifically address the preemption criteria detailed in Part 
II, above, and set forth in detail the manner in which the Missouri 
prohibition against recontainerization is applied and enforced. Persons 
intending to comment should review the standards and procedures 
governing consideration of applications for preemption determinations, 
set forth at 49 CFR 107.201-107.211.

    Issued in Washington, DC on August 4, 2000.
Robert A. McGuire,
Associate Administrator for Hazardous Materials Safety, Research and 
Special Programs Administration.
[FR Doc. 00-20482 Filed 8-11-00; 8:45 am]
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