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: Further extension of period for public comment.

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SUMMARY: RSPA is granting the request of the New York Department of

Environmental Conservation (NYDEC) for a further extension of the

comment period on the application by the Chemical Waste Transportation

Institute (CWTI) for a determination that the Hazardous Materials

Transportation Act (HMTA) preempts certain NYDEC requirements on the

transfer and storage of hazardous wastes incidental to transportation.

The period for rebuttal comments is also extended to permit interested

parties an opportunity to respond to all comments submitted during the

extended initial comment period.

DATES: Further comments received on or before February 28, 1994, and

rebuttal comments received on or before April 14, 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 by comments received

during the 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. Stephen C. Hansen,

Chairman, Chemical Waste Transportation Institute, 1730 Rhode Island

Avenue, NW., suite 1000, Washington, DC 20036, 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

CWTI has applied for a determination that the HMTA preempts certain

NYDEC requirements in Title 6 of the New York Codes, Rules and

Regulations (NYCRR), governing the transfer and storage of hazardous

wastes incidental to transportation (hereinafter ``NYDEC 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. In response to the

requests of four States for additional time to submit comments, RSPA

extended the comment periods in a second notice published in the

Federal Register on December 13, 1993. 58 FR 65226. Among the parties

requesting additional time was NYDEC which stated that it was proposing

to eliminate ``all but one'' of the requirements challenged by CWTI and

that it anticipated filing draft regulations with the New York

Secretary of State by mid-January 1994. RSPA set January 21, 1994 as

the revised deadline for comments on CWTI's application and March 7,

1994 as the revised deadline for rebuttal comments.

In a January 20, 1994 letter, NYDEC advised that it could not meet

the revised deadline of January 21, 1994, to complete its comments on

CWTI's application. It requested that it be allowed until February 1,

1994, to file its ``supplemental response,'' including a copy of its

proposed rulemaking. It estimated that proposed revisions to the NYDEC

transfer and storage requirements would be provided to the New York

Secretary of State by January 25, 1994, ``which will result in

publication of the Notice of Proposed Rulemaking in the New York State

Register on February 9, 1994.'' In a separate telephone conversation,

NYDEC has agreed to send a copy of the proposed revisions to each party

that has provided a NYDEC with a copy of comments in this matter. NYDEC

also stated it needed more time to answer a question in RSPA's December

13, 1993 notice: whether, during the pendency of this rulemaking, it

intends to enforce those parts of the NYDEC transfer and storage

requirements which it has proposed to eliminate.

Prior to receiving a copy of NYDEC's January 20, 1994 letter, CWTI

submitted further comments in which it stated its opposition to any

additional delay. CWTI indicated that it expected RSPA to issue a

determination in this matter by April 13, 1994, based on a 1987

statement by DOT of an intention to make preemption determinations

within 180 days of the date of publication in the Federal Register.

CWTI argued that there was no need to extend the time to address those

parts of the NYDEC transfer and storage requirements that were being

eliminated:

If the requirements are indeed slated for elimination, we cannot

conceive that the [NY]DEC would defend the continuation of the

requirements. Therefore, we see no useful purpose in delaying the

preemption determination process to consider comments which the

[NY]DEC had ample notification and opportunity to respond to in the

first place.

In addition, CWTI clarified or supplemented its application in

three respects. The October 15, 1993 Federal Register notice

specifically requested comments on each of the preemption criteria in

the HMTA, including the provision that requirements in covered subject

areas which must be ``substantively the same as'' requirements in the

HMTA or the Hazardous Materials Regulations (HMR). CWTI has now argued

that the NYDEC transfer and storage requirements concern the ``packing,

repacking [and] handling'' of hazardous materials, so that these

requirements are preempted because they are not ``substantively the

same as'' requirements in the HMTA and the HMR.

Responding to the invitation in RSPA's December 13, 1993 Federal

Register notice, CWTI has addressed NYDEC's earlier comment concerning

secondary containment requirements for hazardous waste transfer

operations. CWTI stated that its original application in this matter

challenged ``the State's secondary containment requirements as they

pertain to the transport of DOT-authorized packagings from one

transport vehicle to another.'' It stated that it would submit a formal

amendment of its application, if necessary, but that ``it is immaterial

whether or not the [NY]DEC repeals Sections 373-1.1(d)(1)(xv)(c)(1) or

373-1.1(d)(1)(xv)(i) because these sections are only given meaning to

the extent section 373-2.9(f) exists.''

CWTI also has addressed an issue raised in RSPA's October 15, 1993

Federal Register notice, regarding the definitions of ``Storage

Incidental to Transport'' and ``Transfer Incidental to Transport.'' It

asserted that these definitions are embodied in the transfer and

storage requirements, and are interwoven, so that

A transporter cannot even transfer an unopened drum of hazardous

waste by forklift from one vehicle to another, where the drum never

touches the ground, unless the transporter owns the facility,

maintains a log of the activity, provides secondary containment,

inspects containers for leaks and records the inspections, and, if

the drum contained ignitable or reactive wastes, not engage in this

activity unless it occurs more than 50 feet from the facility's

property line.

Perhaps because CWTI's original application focused on the

``obstacle'' criterion, many of the comments received to date have not

addressed whether the NYDEC transfer and storage requirements concern

the ``packing, repacking [or] handling'' of hazardous materials, within

the meaning of 49 App. U.S.C. 1804(a)(4)(b)(ii). In addition, CWTI's

original application referred to 40 CFR 236.10(c)(2), which provides

that a transporter of hazardous wastes must comply with 40 CFR Part 262

(Standards Applicable to Generators of Hazardous Waste), if it

``[m]ixes hazardous wastes of different DOT shipping descriptions by

placing them into a single container.'' None of the other comments has

discussed whether this provision has any relevance to RSPA's

determination.

II. Further Extension of Comment Periods

RSPA considers that NYDEC should be allowed additional time to

submit the text of its proposed amendments to the transfer and storage

requirements and provide information on its enforcement policies as to

requirements that may be eliminated within a year. With this text and

enforcement information, comments on CWTI's application and NYDEC's

transfer and storage requirements should be more specific, and more

helpful to a decision in this matter. Moreover, the clarifications to

CWTI's application, as discussed above, may enable other parties to

provide additional, more focused comments at this time, rather than

waiting for the rebuttal comment period.

For these reasons, the initial comment period is hereby extended

until February 28, 1994, and the rebuttal comment period is extended

until April 14, 1994. Rebuttal comments may discuss only those issues

raised by comments received during the initial comment period, now

extended until February 28, 1994, and may not discuss new issues.

These periods should guarantee that all parties have access to the

proposed amendments that may eliminate many of the specific

requirements which CWTI's application asks RSPA to find preempted by

the HMTA. In its further comments, NYDEC may still address all matters

on which comments were invited in the December 13, 1993 Federal

Register notice. 58 FR at 65227. All parties are invited to comment on:

(1) Whether the NYDEC transfer and storage requirements concern the

``packing, repacking [or] handling'' of hazardous materials, within the

meaning of 49 App. U.S.C. 1804(a)(4)(B)(ii), and (2) what relevance, if

any, 40 CFR 263.10(c)(2) has to RSPA's decision on CWTI's application.

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

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:

(1) 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'';

(2) Set forth in detail the manner in which the NYDEC transfer and

storage requirements are applied and enforced; and

(3) Discuss the definitions of ``Storage Incidental to Transport''

and ``Transfer Incidental to Transport'' in 6 NYCRR 364.1(c), and how

these definitions apply to the NYDEC transfer and storage requirements

in 6 NYCRR Parts 372 and 373.

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, DC on January 25, 1994

Alan I. Roberts,

Associate Administrator for Hazardous Materials Safety.

[FR Doc. 94-1988 Filed 1-28-94; 8:45 am]

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