Application by Chemical Waste Transportation Institute for a Preemption Determination as to New York Department of Environmental Conservation Requirements on the Transfer and Storage of Hazardous Wastes Incidental to Transportation

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

[Docket No. PDA-13(R)]

Application by Chemical Waste Transportation Institute for a

Preemption Determination as to New York Department of Environmental

Conservation Requirements on the Transfer and Storage of Hazardous

Wastes Incidental to Transportation

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

ACTION: Public Notice Reopening Comment Period.

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SUMMARY: RSPA is reopening the comment period on the application by the

Chemical Waste Transportation Institute for a determination that the

Hazardous Materials Transportation Act preempts certain New York State

Department of Environmental Conservation requirements on the transfer

and storage of hazardous wastes incidental to transportation. RSPA will

afford interested parties the opportunity to submit additional comments

and to respond to additional comments submitted during the reopened

initial comment period.

DATES: Further comments received on or before August 31, 1994, and

rebuttal comments received on or before September 23, 1994, will be

considered before an administrative ruling is issued by RSPA's

Associate Administrator for Hazardous Materials Safety. Rebuttal

comments may discuss only those issues raised during the reopened

initial comment period and may not discuss new issues.

ADDRESSES: The application and any comments received may be reviewed in

the Dockets Unit, Research and Special Programs Administration, Room

8421, Nassif Building, 400 Seventh Street, SW, Washington, DC 20590-

0001 (Tel. No. 202-366-4453). Comments and rebuttal comments on the

application may be submitted to the Dockets Unit at the above address,

and should include the Docket Number (PDA-13(R)). Three copies of each

should be submitted. In addition, a copy of each comment and each

rebuttal comment must also be sent to (1) Mr. Charles Dickhut,

Chairman, Chemical Waste Transportation Institute, 4301 Connecticut

Avenue, NW, Suite 300, Washington, DC 20008, and (2) Mr. Thomas C.

Jorling, Commissioner, New York Department of Environmental

Conservation, 50 Wolf Road, Albany, NY 12233. A certification that a

copy has been sent to these persons must also be included with the

comment. (The following format is suggested: ``I hereby certify that

copies of this comment have been sent to Messrs. Hansen and Jorling at

the addresses specified in the Federal Register.'')

FOR FURTHER INFORMATION CONTACT: Frazer C. Hilder, Office of the Chief

Counsel, Research and Special Programs Administration, U.S. Department

of Transportation, Washington, DC 20590-0001 (Tel. No. 202-366-4400).

SUPPLEMENTARY INFORMATION:

I. Background

In September 1993, Chemical Waste Transportation Institute (CWTI)

applied for a determination that the Hazardous Materials Transportation

Act (HMTA) preempts certain requirements of the New York State

Department of Environmental Conservation (NYDEC). These requirements,

in Title 6 of the New York Codes, Rules and Regulations (NYCRR), apply

to the transfer and storage of hazardous wastes incidental to

transportation (hereinafter ``transfer and storage requirements''). The

text of CWTI's application was published in the Federal Register on

October 15, 1993, and interested parties were invited to submit

comments. 58 FR 53614.

RSPA has previously extended the period for public comments in this

matter. One extension was in response to the requests of four States

for additional time to submit comments, including the statement by

NYDEC that it was preparing revisions to its regulations that would

eliminate many of the specific requirements challenged by CWTI. 58 FR

65226 (Dec. 13, 1993). A second extension allowed additional time for

NYDEC to publish proposed revisions to its transfer and storage

requirements (which NYDEC then provided to all parties that had

previously submitted comments on CWTI's application), for NYDEC to

submit further comments that considered these proposed revisions, and

for other parties to address these proposed revisions and NYDEC's

further comments. 59 FR 4312 (Jan. 31, 1994). The rebuttal comment

period, as extended, closed April 14, 1994.

RSPA's Acting Administrator recently received a written request

from the Association of State and Territorial Solid Waste Management

Officials (ASTSWMO) for a meeting to discuss the effect of RSPA's

preemption ``activities upon States' ability to appropriately regulate

transporters of hazardous waste under [the Resource Conservation and

Recovery Act] RCRA.'' ASTSWMO indicated that it would like to discuss,

among other issues, the ``commingling and mixing of hazardous waste by

transporters while in transit,'' and the ``off loading and storage of

hazardous waste at non-RCRA regulated sites.'' These issues are

involved in the NYDEC transfer and storage requirements challenged in

CWTI's application. RSPA views this request broadly as a desire by

ASTSWMO to make additional comments beyond its January 13, 1994 letter

already submitted on CWTI's application.

ASTSWMO's letter and RSPA's response, denying ASTSWMO's request for

a meeting, have been placed in the public docket. In view of the

concerns expressed in ASTSWMO's letter and possible developments in

connection with NYDEC's proposed revisions to its transfer and storage

requirements, RSPA considers it appropriate to reopen the comment

period on CWTI's application to allow:

(1) ASTSWMO and others to comment on ``the effect of RSPA

[preemption] activities upon States' ability to appropriately regulate

transporters of hazardous waste under RCRA'';

(2) NYDEC to advise RSPA of the current status of the proposed

revisions to the NYDEC transfer and storage requirements, including the

proposed repeal of many of the requirements challenged by CWTI;

(3) All interested parties to provide further information on

whether requirements proposed to be repealed by NYDEC have been or are

being applied and enforced at this time; and

(4) NYDEC and other parties to comment further on the meaning of

the phrases ``store incidental to transport'' and ``transfer incidental

to transport'' contained in 6 NYCRR 372.3(a)(6) and (7), respectively,

and whether the definitions set forth in 6 NYCRR 364.1(c)(12) and (14)

apply to these phrases.

On July 5, 1994, President Clinton signed Public Law 103-272 which

extensively revised, codified and enacted without substantive change

numerous laws related to transportation. The former Hazardous Materials

Transportation Act, 49 App. U.S.C. 1801 et seq., has been repealed and

replaced by 49 U.S.C. Chapter 51, ``Transportation of Hazardous

Material,'' except as to ``proceedings that were begun before'' July 5,

1994. Accordingly, the preemption provisions in former 49 App. U.S.C.

1804 and 1811 remain applicable to CWTI's application. At the same

time, since Congress made no substantive change in passing 49 U.S.C.

Chapter 51, RSPA's determination in this matter will cite to the

preemption criteria as set forth in 49 U.S.C. 5125.

II. Reopening of Comment Period

For the reasons set forth above, the period for public comments on

CWTI's application is being reopened. Comments may be submitted through

August 31, 1994, and may discuss all issues relating to CWTI's

application including those contained in comments previously submitted.

Rebuttal comments may be submitted through September 23, 1994, and may

discuss only those issues raised in comments submitted during the

reopened comment period; rebuttal comments may not raise new issues.

As previously stated in the October 15, 1993, December 13, 1993,

and January 31, 1994 notices, all comments should be limited to the

issue of whether the NYDEC transfer and storage requirements are

preempted by the HMTA, and all comments should: specifically address

(a) the preemption criteria (``substantively the same,'' ``dual

compliance,'' and ``obstacle'') described in Part I of the October 15,

1993 Public Notice, and (b) whether the NYDEC transfer and storage

requirements are ``otherwise authorized by Federal law.'' Persons

intending to comment should review the standards and procedures

governing RSPA's consideration of applications for preemption

determinations, set forth at 49 CFR 107.201-107.211.

Issued in Washington, D.C. on July 29, 1994.

Alan I. Roberts,

Associate Administrator for Hazardous Materials Safety.

[FR Doc. 94-19123 Filed 8-4-94; 8:45 am]

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