[Federal Register Volume 65, Number 238 (Monday, December 11, 2000)]
[Notices]
[Pages 77417-77419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-31477]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

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


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

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

ACTION: Notice of Reopening Period for Public Comment

-----------------------------------------------------------------------

SUMMARY: RSPA is reopening the period for interested parties 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: Additional comments received on or before January 25, 2001, and 
rebuttal comments received on or before March 12, 2001, will be 
considered before issuing an administrative ruling on Kiesel's 
application. Rebuttal comments may discuss only those issues raised 
previously or 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-00-7740 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, Greensfelder, Hemker & Gale, P.C., 2000 
Equitable Bldg., 10 South Broadway, St. Louis, MO 63102-1774, 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 each Inconsistency Ruling (IR) and Preemption 
Determination (PD) issued by DOT, 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 Mr. Hilder (see ``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, 400 Seventh Street, SW., Washington, DC 20590-0001 
(Tel. No. 202-366-4400).

SUPPLEMENTARY INFORMATION:

I. Background

    In a June 28, 2000 letter, Kiesel applied for a determination that 
Federal hazardous material transportation law, 49 U.S.C. 5101 et seq., 
preempts the prohibition against recontainerization of hazardous waste 
in a regulation of the Missouri Department of Natural Resources (DNR) 
at 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 its application, Kiesel stated 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 stated that it

has been in discussions regarding the use of the rail siding at its 
facility to provide a transfer point for the off loading of 
hazardous waste from rail cars to tankers or vacuum trucks for 
transport to a disposal site in Illinois licensed to receive and 
dispose of hazardous waste. The transfer of hazardous waste from the 
rail car to a trailer or a vacuum truck would constitute 
recontainerization which is prohibited under Missouri regulations.

    Notice of Kiesel's application was published in the Federal 
Register on August 14, 2000, and interested parties were invited to 
submit comments by September 28, 2000, and rebuttal comments by 
November 13, 2000. 65 FR 49633. In the August 14, 2000 public notice, 
RSPA also referred to DNR's regulations on transporters of hazardous 
waste set forth in 10 CSR 25-6.263; the lack of any general prohibition 
in the Hazardous Materials Regulations (HMR), 49 CFR Parts 171-180, 
against the transfer of hazardous materials from one container to 
another; and Kiesel's argument that ``an identical regulation'' was 
found to be preempted in PD-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). 65 FR at 49633. In 
parts II and III of the August 14, 2000 public notice, RSPA discussed 
the preemption provisions in 49 U.S.C. 5125 and the procedures for 
issuing preemption determinations. Id. at 49634-35.

II. Comments Received and Request to Withdraw Application

    In response to the August 14, 2000 public notice, RSPA has received 
the following submissions:

--An August 30, 2000 letter from Kiesel clarifying that it had not been 
advised by DNR that transferring hazardous waste from a rail car to a 
motor vehicle would constitute a prohibited recontainerization of 
hazardous waste, contrary to RSPA's understanding from Kiesel's mention

[[Page 77418]]

of ``discussions'' in its application. See 65 FR at 49634. In this 
letter, Kiesel also stated that ``the plain language of the regulation 
would encompass this practice as it would require that rail cars of 
bulk hazardous waste would be placed in new and different containers 
such as vacuum trucks or tank trailers.''
--A September 28, 2000 comment from National Tank Truck Carriers, Inc. 
(NTTC) which reads the Missouri regulation to prohibit ``the transfer 
of [a hazardous] product from one container to another.'' NTTC stated 
that it is ``a national trade association composed of approximately 200 
trucking companies which specialize in the transportation of hazardous 
materials, hazardous wastes and hazardous substances in cargo tank 
motor vehicles throughout the United States,'' and implied that at 
least some of its members are affected by the Missouri prohibition 
against recontainerization of hazardous wastes at a transfer facility. 
It stated that the Missouri prohibition is preempted by Federal 
hazardous material transportation law because ``transportation'' 
includes the ``loading'' and ``unloading'' of hazardous materials 
incidental to their movement, and Congress has given DOT the 
``exclusive power'' to regulate matters involving the ``packing, 
repacking [and] handling'' of hazardous materials in transportation.
--An undated letter from DNR stating that it has informed Kiesel that 
``the off-loading of hazardous wastes from rail cars onto trucks, is 
not prohibited by 10 CSR 25-6.263(1)'' and requesting an extension of 
the comment period ``in the event that Kiesel does not withdraw'' its 
application. With this undated letter, DNR attached a copy of its 
September 26, 2000 letter to Kiesel in which DNR stated that it wants 
to ``work with Kiesel personnel to develop a manifesting protocol to 
insure all shipments will be accompanied by proper documentation as 
required by the Department of Transportation, Environmental Protection 
Agency [EPA], and the Department of Natural Resources (DNR).''
--An October 10, 2000 comment from Safco Safe Transport (Safco), of 
Seattle, Washington, objecting to an extension of the comment period 
and questioning whether DNR is attempting to impose additional 
requirements under a manifest ``protocol'' that goes beyond the HMR or 
EPA's regulations. Safco did not indicate whether it operates in 
Missouri.
--An October 12, 2000 letter from Kiesel stating that it had no 
objection to a 30-day extension of the period to comment on its 
application in this matter to ``allow further clarification of the 
position of the Department of Natural Resources and determine if a 
preemption determination is necessary given the public position of the 
Department.''
--An October 30, 2000 letter from Kiesel stating that it had received 
``written assurances'' from DNR that the prohibition against 
recontainerization of hazardous wastes ``does not apply to the transfer 
of hazardous wastes transferred from railcars to trucks.'' Kiesel did 
not provide a copy of the written assurances it had received from DNR. 
Kiesel stated that it was withdrawing its application in this matter.
--An undated note from Safco withdrawing its earlier objection to an 
extension of the comment period and stating that preemption occurs by 
``operation of law'' and ``cannot be withdrawn.''

III. Discussion

    RSPA does not have any procedure for withdrawing an application for 
a preemption determination. In the past, RSPA has dismissed proceedings 
involving a city ordinance that never went into effect, Docket No. PDA-
3(RF) (Chester, West Virginia), 59 FR 4962 (Feb. 2, 1994), and a local 
requirement that was repealed after the application was filed, Docket 
No. PDA-14(R) (El Paso, Texas), 62 FR 11677 (March 21, 1996). But RSPA 
has never stated that an applicant can end a preemption proceeding by 
simply withdrawing its application when a non-Federal requirement on 
transporting hazardous materials remains in effect.
    Unlike a lawsuit, these administrative proceedings are initiated 
only when RSPA publishes a notice in the Federal Register inviting 
interested persons to comment on an application. 49 U.S.C. 5125(d)(1), 
49 CFR 107.203(d), 107.205(b). RSPA may dismiss an application without 
prejudice and return it to the applicant without publishing a notice in 
the Federal Register. See 49 CFR 107.207(b). Moreover, there is no 
``default'' suffered in a preemption proceeding if the State, locality, 
or Indian tribe does not submit comments on an application. See, e.g., 
PD-5(R), Massachusetts Requirement for an Audible Back-up Alarm on Bulk 
Tank Carriers Used to Deliver Flammable Material, 58 FR 62702 (Nov. 29, 
1993), and IR-27, Colorado Regulations on Transportation of Radioactive 
Materials, 54 FR 16326 (Apr. 21, 1989), aff'd, Colorado Pub. Util. 
Comm'n v. Harmon, 951 F.2d 1571 (10th Cir. 1991), reversing No. 88-Z-
1524 (D. Colo. 1989).
    Any interested person may submit comments on an application for a 
preemption determination, unlike a lawsuit where the proceedings are 
limited to the named parties. 49 CFR 107.205(c). And RSPA may go beyond 
the application and comments to ``initiate an investigation of any 
statements in an application and utilize * * * any relevant facts 
obtained by that investigation'' and ``may consider any other source of 
information.'' 49 CFR 107.207(a). Following issuance of a 
determination, any ``aggrieved'' person may file a petition for 
reconsideration, 49 CFR 107.211(a), and any party to the proceeding may 
``bring an action for judicial review.'' 49 U.S.C. 5125(f), 49 CFR 
107.213.
    These differences from a lawsuit are consistent with the very 
purpose for issuing preemption determinations. RSPA believes that the 
value in deciding whether a non-Federal requirement is inconsistent 
with (or preempted by) Federal hazardous material transportation law

goes beyond the resolution of an individual controversy. At a time 
when hazardous materials transportation is receiving a great deal of 
public attention, the forum provides [RSPA] an opportunity to 
express its views on the proper role of State and local vis-a-vis 
Federal regulatory activity in this area.

IR-2, Rhode Island Rules and Regulations Governing the Transportation 
of Liquefied Natural Gas, etc., decision on appeal, 45 FR 71881, 71882 
(Oct. 30, 1980).
    The manner in which a non-Federal requirement is actually applied 
or enforced must be considered under the ``obstacle'' test in 49 U.S.C. 
5125(a)(2), but not necessarily under the ``dual compliance'' test in 
Sec. 5125(a)(1) or the ``substantively the same as'' criteria in 
Sec. 5125(b)(1)(A)-(E). On this point, RSPA previously discussed an 
``extreme example [of] the nonimplementation or nonenforcement of a 
directly conflicting State requirement,'' and found that it ``makes no 
sense * * * to say that since there is no enforcement there is no 
conflict.'' Id. at 71883. Moreover, a commenter in another proceeding 
has asserted that a regulation or ordinance is ``enforced'' whenever it 
remains in effect, because persons feel compelled to comply with the 
requirement even when there have not been citations or other 
``enforcement proceedings.'' Thus, there may be an issue whether a non-
Federal requirement is an obstacle to the

[[Page 77419]]

safe transportation of hazardous materials and the specific 
requirements in the HMR, even when not enforced, because the 
requirement may cause offerors or transporters of hazardous materials 
to take actions that are not required by the HMR, or refrain from 
actions that are permitted under the HMR.
    While it may not be necessary to look at the actual application of 
a non-Federal requirement, except when applying the ``obstacle'' test, 
the words in the requirement always set the scope of the requirement. 
In some cases, terms may be defined in the statute, regulation, or 
ordinance. Otherwise, those terms must be given their usual and 
customary meaning. But RSPA cannot accept efforts to interpret a non-
Federal requirement in a manner that ``is in direct conflict with the 
plain language'' of the State, local, or tribal statute, regulation, or 
ordinance. PD-14(R), Houston, Texas, Fire Code Requirements on the 
Storage, Transportation, and Handling of Hazardous Materials, 63 FR 
67506, 67510 (Dec. 7, 1998), decision on petition for reconsideration, 
64 FR 33949 (June 24, 1999).
    Here, both NTTC and Safco appear to support Kiesel's position that 
RSPA should consider the ``plain language'' of Missouri's prohibition 
against recontainerization of hazardous waste and find that the 
Missouri regulation is preempted because it is not substantively the 
same as Federal requirements on ``the packing, repacking, [and] 
handling * * * of hazardous material.'' 49 U.S.C. 5125(b)(1)(B). Kiesel 
also specifically refers to PD-12(R), where the applicant and other 
persons indicated, without contradiction, that New York's repackaging 
prohibition prevented a transporter ``from transferring the contents of 
rail cars into trucks.'' 60 FR at 62536.
    To date, very few comments have been submitted on Kiesel's 
application. Neither Kiesel nor DNR has provided a copy of the 
``written assurances'' explaining why the prohibition against 
recontainerization in 10 CSR 25-6.263(2)(A).10.h would not apply to 
Kiesel's planned operations, nor has DNR submitted any comments 
explaining its regulation and why it is not preempted by 49 U.S.C. 
5125(b)(1)(B). Under these circumstances, it is appropriate to reopen 
the comment period rather than simply to proceed to a determination in 
this proceeding.

IV. Reopening of Comment Periods

    The period to submit comments on Kiesel's application is reopened 
to allow a new initial comment period of 45 days, followed by a 45-day 
period for rebuttal comments.
    All comments should address whether 49 U.S.C. 5125 preempts the 
prohibition against recontainerization in 10 CSR 25-6.263(2)(A)10.H, 
and, in the context of the preemption criteria discussed in the August 
14, 2000 public notice:
    (1) explain the meaning of the Missouri prohibition against 
recontainerization of hazardous wastes and the manner in which that 
prohibition is applied and enforced; and
    (2) address the assertions in Kiesel's August 30, 2000 letter that 
the Missouri prohibition against recontainerization precludes a 
transfer of hazardous waste from a rail car to a motor vehicle and is 
preempted because it is not substantively the same as RSPA's 
regulations on the ``packing, repacking, [and] handling * * * of 
hazardous material.'' 49 U.S.C. 5125(b)(1)(B).
    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 December 4, 2000.
Robert A. McGuire,
Associate Administrator for Hazardous Materials Safety, Research and 
Special Programs Administration.
[FR Doc. 00-31477 Filed 12-8-00; 8:45 am]
BILLING CODE 4910-60-P