[Federal Register Volume 66, Number 136 (Monday, July 16, 2001)]
[Notices]
[Pages 37089-37093]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-17726]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

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


Missouri Prohibition Against Recontainerization of Hazardous 
Waste at a Transfer Facility

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

ACTION: Notice of administrative determination of preemption by RSPA's 
Associate Administrator for Hazardous Materials Safety.

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    Applicant: The Kiesel Company (Kiesel).
    Local Laws Affected: 10 Missouri Code of State Regulations (CSR) 
25-6.263(2)(A).10.H.
    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.
    Mode Affected: Rail and highway.

SUMMARY: Federal hazardous material transportation law preempts 
Missouri's prohibition against the recontainerization of hazardous 
wastes at a transfer station, in 10 CSR 25-6.263(2)(A).10.H, because 
that prohibition is not substantively the same as provisions in the HMR 
on the packing, repacking, and handling of hazardous material.

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 this determination, RSPA considers whether Federal hazardous 
material transportation law, 49 U.S.C. 5101 et seq., preempts the 
prohibition against recontainerization of hazardous waste in the 
following regulation of the Missouri Department of Natural Resources 
(DNR) at 10 CSR 25-6.263(2)(A).10.H:

    Recontainerization of hazardous waste 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 a notice published in the Federal Register on August 14, 2000, 
RSPA invited interested parties to submit comments on Kiesel's 
application for a determination that this regulation is preempted. 65 
FR 49633. In its application, Kiesel stated that it is a licensed 
hazardous waste transporter and wanted to off-load hazardous wastes 
from rail cars to trucks at a rail siding at its facility located 
within the City of St. Louis, Missouri, for further transportation to a 
licensed disposal site in Illinois. Kiesel stated that the transfer 
from rail car to motor vehicle would constitute a prohibited 
``recontainerization'' and that RSPA had found ``an identical 
regulation'' preempted in PD-12(R), New York Department of 
Environmental Conservation Requirements on the Transfer and Storage of 
Hazardous Waste Incidental to Transportation, 60 FR 62527 (Dec. 6, 
1995), decision on petition for reconsideration, 62 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).
    Following publication of the August 14, 2000 notice, it appears 
that Kiesel and DNR exchanged correspondence regarding the prohibition 
in 10 CSR 25-6.263(2)(A).10.H, because (1) Kiesel first clarified that 
it had not been advised by DNR that transferring hazardous waste from a 
rail car to motor vehicles would constitute a prohibited 
recontainerization; (2) DNR then stated that it had informed Kiesel 
that ``the off-loading of hazardous waste from rail cars onto trucks is 
not prohibited by 10 CSR 25-6.263(1)''; and (3) Kiesel purported to 
withdraw its application. In response to the August 14, 2000 notice, 
RSPA also received comments from National Tank Truck Carriers, Inc. 
(NTTC) and Safco Safe Transport supporting a finding that Missouri's 
prohibition is preempted.
    In a further public notice published in the Federal Register on 
December 11, 2000, RSPA explained that it does not have any procedure 
for withdrawing an application for a preemption determination. 65 FR 
77417. RSPA stated that, in the past, it has dismissed proceedings when 
a local requirement never went into effect or was repealed after the 
application was filed, but an applicant does not have the option to end 
a preemption determination proceeding by simply withdrawing its 
application when the non-Federal requirement on transporting hazardous 
materials remains in effect. As discussed in the December 11, 2000 
notice (65 FR at 77418-19),

    Unlike a lawsuit, these administrative proceedings are initiated 
only when RSPA

[[Page 37090]]

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).

    Therefore, RSPA reopened the period for interested parties to 
comment on Kiesel's application and specifically invited comments on 
the meaning of the Missouri prohibition, the manner in which that 
prohibition is applied and enforced, and whether that prohibition 
precludes the transfer of hazardous wastes from a rail car to a motor 
vehicle and is preempted because it is not substantively the same as 
requirements in the HMR on packing, repacking, and handling. The only 
further comments were submitted by DNR.

II. Federal Preemption

    RSPA explained in its August 14, 2000 notice that 49 U.S.C. 5125 
contains several preemption provisions that are relevant to this 
proceeding. 65 FR at 49634-35. Subsection (a) provides that--in the 
absence of a waiver of preemption by 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 prescribed under this chapter is not possible; or
    (2) the requirement of the State, political subdivision, or 
tribe, as applied or enforced, is an obstacle to 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.)
    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 C.F.R.

[[Page 37091]]

107.209. 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, 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, or whether a fee is ``fair'' within the meaning of 49 
U.S.C. 5125(g)(1). 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 10, 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.

III. Discussion

    In its application, Kiesel stated that 10 CSR 25-6.263(2)(A).10.H 
``prohibits recontainerization'' whereas nothing in the HMR or 
regulations of the U.S. Environmental Protection Agency (EPA) precludes 
recontainerization of hazardous waste at a transfer facility. Kiesel 
also stated that, in PD-12(R), RSPA had found that 49 U.S.C. 
5125(b)(1)(B) preempts ``an identical regulation'' of the New York 
Department of Environmental Conservation because ``the prohibition of 
recontainerization `applies to the ``repacking'' and ``handling'' of 
hazardous materials and transportation and is not substantively the 
same as the requirements in the HMR.' '' In further comments, Kiesel 
stated that ``the plain language'' of DNR's regulation prohibits ``the 
practice of transferring product from railcar to trucks or trailers for 
further transportation.''
    NTTC stated that Missouri ``has imposed a prohibition on a 
transportation-related activity which is (not only) permitted by 
Federal regulations, but is necessary to the safe and prudent handling 
of environmentally sensitive products.'' NTTC considered that 
Missouri's regulation prohibits ``the transfer of product from one 
container to another'' and stated that ``[p]roduct transfer (in 
contemplation of subsequent transportation) is a common `unloading/
loading' activity, particularly in intermodal transportation'' which is 
encompassed by Federal hazardous material transportation law and 
permitted by the HMR. NTTC found ``an inherent conflict within the 
state's regulatory structure,'' because Missouri has adopted the HMR as 
State law. See 10 CSR 25-6.263(1), Mo. Rev. Stat. 307.177.1.
    In its initial submission in this proceeding, DNR stated that it 
had informed Kiesel that its regulations did not prohibit ``the off-
loading of hazardous wastes from rail cars onto trucks,'' and that 
``nothing in Missouri hazardous waste regulations is intended to impede 
intermodal transportation activities.'' In its further comments, DNR 
stated that 10 CSR 25-6.263(2)(A).10.H

is a general prohibition on the re-containerization of hazardous 
waste at transfer facilities; however, the Department has 
interpreted the regulation to prohibit blending separate contents of 
containers. The Department has not interpreted the regulations to 
mean a transporter may not transfer hazardous waste from a railcar 
to a truck or similar container (intermodal transfer).

    With this submission, DNR included a copy of its October 13, 2000 
letter to Kiesel stating that ``misunderstanding [of its regulation] is 
not uncommon'' and that it ``means to control the blending of different 
materials into a common container, perhaps leading to some type of 
adverse reaction, similar in scope to the United States Department of 
Transportation's prohibition of mixing incompatibles.'' DNR also 
advised that it is in the process of amending its regulations and is 
proposing to replace the first sentence of 10 CSR 25-6.263(2)(A) to 
read: ``The contents of separate containers of hazardous waste may not 
be combined at a transfer facility.''
    DNR also stated that its hazardous waste regulations are authorized 
by the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6921 et 
seq., and argued that, under RCRA, the ``state may enact regulations 
and statutes that are stricter than the RCRA'' because 49 U.S.C. 
5125(a) and (b) do not preempt non-Federal requirements that are 
``authorized by another law of the United States.'' DNR stated that the 
decision in New York v. U.S. Dep't of Transportation ``is a district 
court case and thus is not precedent.''
    In PD-12(R), RSPA discussed industry practices of transferring 
hazardous wastes from one container to another during transportation. 
It noted that EPA had recognized this practice in a 1980 rule amending 
its hazardous waste regulations:

    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.

    Interim final amendments and request for comments, Hazardous Waste 
Management System, etc., 45 FR 86966 (Dec. 31, 1980), quoted at 60 FR 
at 62528. RSPA also referred to comments that consolidation occurs in 
various forms. NCH Corporation stated that some transporters 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.

    60 FR at 62528. The Association of American Railroads stated that

    It is a common 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 cars and subsequent 
delivery to consignees for burying or recycling.

Id. at 62528-29.
    In addition, RSPA explained that both the HMR and EPA's regulations 
place limitations on, but do not completely prohibit, transferring 
hazardous wastes from one container to another. As summarized in the 
August 14, 2000 notice in this proceeding, ``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).

[[Page 37092]]

--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).

65 FR at 49834. RSPA also noted that:

[T]he 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).

    Id. See also 60 FR at 62534, 62529.
    In PD-12(R), RSPA found that, ``[b]y its very terms,'' New York's 
prohibition against the ``consolidation or transfer of [hazardous 
wastes] either by repackaging in, mixing, or pumping from one container 
or transport vehicle into another'' involved ``repacking'' and was not 
substantively the same as requirements in the HMR for ``the packing, 
repacking, [and] handling * * * of hazardous material.'' 60 FR at 
62536. The prohibition against ``recontainerization'' in 10 CSR 25-
6.263(2)(A).10.H similarly involves ``repacking'' and is not 
substantively the same as requirements in the HMR for ``the packing, 
repacking, [and] handling * * * of hazardous material.'' 49 U.S.C. 
5125(b)(1)(B).
    DNR's claim that it interprets its ``recontainerization'' 
prohibition ``to control the blending of different materials into a 
common container'' is inconsistent with the plain words of its 
regulation and, in light of the Federal regulations adopted as State 
requirements, unnecessary. In PD-12(R), RSPA discussed that New York'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.

    60 FR at 62536. DNR's interpretation that it allows intermodal 
transfers ``from a rail car to a cargo tank'' accepts only one of these 
forms of transfer, and seems to leave the remainder prohibited. 
Apparently, DNR would allow only the transfer from a larger container 
to smaller ones (railcar to trucks) and not consolidation of the 
contents of smaller containers into a larger one (drums to a cargo tank 
or cargo tanks to a rail car), on the theory that there is the 
possibility of ``blending of different materials into a common 
container.''
    Because Missouri has adopted the HMR as State law (see 10 CSR 25-
6.263(1)), it is already a violation of separate State requirements to 
``blend[] different materials into a common container'' whenever there 
would be ``a dangerous evolution,'' or ``an unsafe condition'' in a 
cargo tank motor vehicle. 49 CFR 173.21(e), 173.33(a)(2). Missouri has 
also adopted EPA's ``Standards Applicable to Transporters of Hazardous 
Waste'' in 40 CFR Part 263 (see 10 CSR 25-6.263(1)), making a hazardous 
waste generator subject to all requirements applicable to a generator 
if it mixes hazardous wastes of different DOT shipping descriptions. 40 
CFR 263.10(c).
    In PD-12(R), RSPA rejected arguments that New York's consolidation 
prohibition was ``consistent with and complimentary to'' the HMR, or a 
regulation on ``management activities'' at a transfer facility. 60 FR 
at 62535. RSPA also discussed at length and rejected the argument that 
RCRA authorized New York to adopt additional requirements that are 
``more stringent'' than EPA's regulations, under 42 U.S.C. 6929. Id. at 
62532-34.
    As RSPA noted, this issue had been raised, without success, several 
times before. See PD-1(R), Maryland, Massachusetts, and Pennsylvania 
Bonding Requirements, 57 FR 58848, 58854-55 (Dec. 11, 1992), decision 
on petition for reconsideration, 58 FR 32418, 32420 (June 9, 1993), 
reversed, 93 F.3d 890 (D.C. Cir. 1996); PD-2(R), Illinois Environmental 
Protection Agency's Uniform Hazardous Waste Manifest, 58 FR 11176, 
11183 (Feb. 23, 1993); and PD-7(R), Maryland Certification Requirements 
for Transporters of Oil or Controlled Hazardous Substances, 59 FR 
28913, 28919-20 (June 3, 1994).
    In all of these decisions and PD-12(R), RSPA found ``no basis for 
the position * * * that any State can avoid preemption of its hazardous 
waste requirements simply by obtaining authorization under RCRA.'' 60 
FR at 62534. RSPA discussed the requirement in RCRA (42 U.S.C. 6923) 
for EPA to consult with DOT and issue regulations on the transportation 
of hazardous waste that are ``consistent with'' Federal hazardous 
material transportation law and the HMR. Id. Moreover, Congress also 
provided that a State program ``must be equivalent to the Federal 
program'' under RCRA and ``consistent with the Federal or State 
programs applicable in other States'' to be approved by EPA. 42 U.S.C. 
6926(b).
    Thus, EPA itself has stated that ``preemption issues under other 
Federal laws * * * do not affect the State's RCRA authorization'' and 
``the RCRA authorization decisions provide no basis for shielding state 
regulations touching upon hazardous materials transport from possible 
preemption challenges raised under the HMTA.'' Quoted at 60 FR at 
52533.
    DNR's argument that RCRA authorizes States to adopt ``more 
stringent'' regulations on hazardous waste transportation was also 
rejected when New York petitioned for review of PD-12(R) in Federal 
court. In New York v. U.S. Dep't of Transportation, the court 
specifically agreed that:

DOT does have primary jurisdiction over the regulation of the 
transportation of hazardous waste as hazardous ``material'' includes 
that of ``waste.'' See 49 CFR Sec. 171.8. * * * EPA is statutorily 
obligated to coordinate its RCRA regulations applicable to 
transporters of hazardous waste with DOT regulations applicable to 
transporters of all hazardous material * * * [and] this general 
state empowerment [in 42 U.S.C. 6929] must be read in conjunction 
with the statutory mandate that EPA regulations be consistent with 
the HMTA. See 42 U.S.C. Sec. 6923(b); * * *
    Finally, EPA clearly does not decide whether a preemption 
problem exists under the HMTA when considering an application for 
state authorization under the RCRA. * * * EPA's authorization of a 
state RCRA program is not the equivalent of ``authoriz[ation] by 
another law of the United States.'' Therefore, if the [State] 
regulation at issue is ``about'' one of the ``covered subjects,'' 
then the [State] regulation must be found to be preempted as it is 
not ``authorized'' by the RCRA.

37 F. Supp. 2d at 157-58 (footnote omitted).

IV. Ruling

    Federal hazardous material transportation law preempts Missouri's 
prohibition against the recontainerization of hazardous wastes at a 
transfer station, in 10 CSR 25-6.263(2)(A).10.H, because that 
prohibition is not substantively the same as provisions in the HMR on 
the packing, repacking, and handling of hazardous material.

V. Petition for Reconsideration/Judicial Review

    In accordance with 49 CFR 107.211(a), any person aggrieved by this 
decision may file a petition for reconsideration within 20 days of 
publication of this decision in the Federal Register. Any party to this 
proceeding may seek review of RSPA's decision ``in an appropriate 
district court of the United States * * * not

[[Page 37093]]

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 
publication in the Federal Register 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 publication in the Federal Register, 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, DC on July 11, 2001.
Robert A. McGuire,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 01-17726 Filed 7-13-01; 8:45 am]
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